          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1053
                 _____________________________

PHILIP MORRIS USA INC.,

    Appellant,

    v.

VEDA BRYANT, Personal
Representative of the Estate of
Johnny Lee Bryant; R.J.
REYNOLDS TOBACCO COMPANY,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.

                           May 6, 2019


WINSOR, J.

     Veda Bryant won a $681,000 judgment against Philip Morris
USA Inc. based on her late husband’s addiction to—and injuries
from—smoking cigarettes. Philip Morris now appeals, arguing
that it is entitled to a new trial because plaintiff’s counsel asked
an improper question and made an improper comment during
closing argument. Philip Morris also argues, in the alternative,
that a 2001 stipulation in the original Engle 1 litigation requires a
reduction of the punitive damages award.

     First, we agree with Philip Morris and the trial court that
Bryant’s counsel asked an improper question in front of the jury.
As Bryant’s counsel was presenting expert testimony about the
history of tobacco production and consumption, counsel asked the
expert to translate the slogan “veni, vidi, vici,” which had appeared
on packages of Marlboro cigarettes. The expert testified that “[i]t’s
Latin. I came, I saw, I conquered.” 2 Counsel then followed with this
question: “[B]ased on the market sales that we’ve seen in terms of
Philip Morris’ earnings over the years, and the 40-some year
conspiracy, did Marlboro come, see and conquer?” The court
promptly sustained Philip Morris’s objection before the expert
could respond.

     The trial court recognized that counsel’s question was an
improper one, and it would be hard to argue otherwise. But the
question we face was whether the trial court was obligated to grant
Philip Morris’s motion for mistrial. We review the court’s ruling
only for an abuse of discretion, Anderson v. State, 841 So. 2d 390,
403 (Fla. 2003), and we conclude the trial court acted within its
broad discretion. Improper as the question was, we cannot
conclude that in the overall context of the entire trial, the
unanswered question was “so prejudicial as to vitiate the entire
trial.” Id. Similarly, we conclude the trial court did not abuse its
discretion in denying Philip Morris’s separate motion for mistrial
relating to Bryant’s closing argument, and we affirm the trial
court’s related denial of Philip Morris’s motion for new trial.

    Next, we must decide whether a stipulation in the Engle case
required a reduction of the punitive damage award in this case.

    1 See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)
(Per curiam opinion with two Justices joining and four Justices
joining opinions concurring in part).
    2  The well-known phrase is, of course, attributed to Julius
Caesar. See Veni, vidi, vici, Wikipedia, available at
https://en.wikipedia.org/wiki/Veni,_vidi,_vici, last visited May 5,
2019.

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Consistent with holdings from the Second and Third Districts, we
conclude that it does not.

     In 1994, a group of plaintiffs initiated a class-action case
against Philip Morris and others. See Hess v. Philip Morris USA,
Inc., 175 So. 3d 687, 693 (Fla. 2015) (explaining Engle history). The
trial court certified a class, the matter went to trial, and the jury
awarded some $145 billion in punitive damages. Id. (Philip
Morris’s share of the punitive damages was roughly $74 billion.)
The Florida Supreme Court later decertified the class, concluding
that “individualized issues such as legal causation, comparative
fault, and damages predominate[d],” but it allowed members of the
decertified class to initiate individual cases, id. (quoting Engle),
which Bryant did.

      Long before the supreme court issued its Engle decision, the
Engle class and defendants (including Philip Morris) entered into
a stipulation staying execution of the $145 billion judgment
pending appeal. The stipulation, which the Engle trial court
approved, required the defendants to place approximately $2
billion in escrow to secure payment of at least that much of the
judgment. The parties agreed that a portion ($500 million) of the
funds Philip Morris contributed would be paid to the class even if
the award was reversed on appeal. The parties further agreed that
this amount, known as the “guaranteed sum,” would “constitute a
dollar-for-dollar credit against, and [would] not be construed to be
a payment obligation in addition to, payment of the punitive
damages component of the Judgment against Participating
Defendant in the event such component of such Judgment (or any
portion thereof) is affirmed or required to be paid.” It is that
provision that Philip Morris contends entitles it to a credit in this
case. The stipulation defined the “Judgment” as “the judgment . . .
that was entered in this [Engle] action on November 3, 2000.”
Thus, the question we face is whether the punitive damages award
in Bryant’s case constitutes a “punitive damages component of” the
original Engle judgment. Or, as Philip Morris framed it below: “the
textual question for the court is this: May the Participating
Defendants be deprived of the dollar-for-dollar credit provided by
the Stipulation on the theory that punitive awards in Engle
progeny cases are independent of the Engle judgment?”


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     We conclude that no portion of Bryant’s judgment constitutes
“the punitive damages component of” the Engle judgment. It is
true that certain findings from the original Engle trial have res
judicata effect in individual actions like this one. See Hess, 175 So.
3d at 694; see also Philip Morris USA, Inc. v. Douglas, 110 So. 3d
419, 432 (Fla. 2013). And it may well be that without those
findings, Bryant would not have successfully established liability
below. But that does not mean this judgment is a “punitive
damages component” of the 2000 Engle judgment. “The doctrine of
res judicata bars relitigation [of certain matters] in a subsequent
cause of action,” Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004),
but it does not make a later judgment a component of the earlier
one. There are still separate judgments. Here, Bryant’s judgment
was an independent judgment, separate and apart from the Engle
judgment. We therefore agree with the Second and Third Districts,
which have held that the 2001 Engle stipulation does not require
a credit against judgments in individual Engle-progeny cases. See
Philip Morris USA, Inc. v. Ledoux, 230 So. 3d 530, 541 n.6 (Fla. 3d
DCA 2017) (rejecting claim “that Defendants were entitled to a
credit against the punitive damages judgment, based on the
Guaranteed Sum Stipulation arising out of the original Engle
litigation”); Philip Morris USA Inc. v. Boatright, 217 So. 3d 166,
173 (Fla. 2d DCA 2017) (“[T]he Guaranteed Sum Stipulation
specifically applied to the judgment in Engle and is not applicable
to the judgment in this case.”).

    AFFIRMED.

LEWIS and M.K. THOMAS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Rosemary Szanyi, Geoffrey J. Michael, and David M. Menichetti of
Arnold & Porter Kaye Scholer LLP, Washington D.C.; Laura
Whitmore of Shook, Hardy & Bacon LLP, Tampa; and Connor J.

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Sears or Shook, Hardy & Bacon LLP, Kansas City, Missouri, for
Appellant.

Douglas Eaton of Eaton & Wolk, PL, Miami, for Appellee Bryant.




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