                Case: 14-14709      Date Filed: 04/17/2018      Page: 1 of 4


                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                            __________________________

                                   No. 14-14709
                            __________________________

                      D.C. Docket No. 3:09-cv-11128-WGY-JBT


PATRICK O. GRIFFIN,

                                                                         Plaintiff-Appellee,

                                           versus

PHILIP MORRIS USA, INC.,

                                                                      Defendant-Appellant.

                            __________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          __________________________

                                     (April 17, 2018)

Before TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN, * District

Judge.

PER CURIAM:

       *
       Honorable Lewis A. Kaplan, United States District Judge for the Southern District of
New York, sitting by designation.
                 Case: 14-14709         Date Filed: 04/17/2018         Page: 2 of 4


        This case arises from the Engle line of litigation involving illnesses allegedly

caused by addiction to cigarettes. After our recent decision in Graham, the sole

remaining issue concerns whether the District Court erred by refusing to amend the

judgment under Federal Rule of Civil Procedure 59(e) to reflect a contractual

discount to the cost of a lung transplant.1 We hold that the District Court did not

abuse its discretion in refusing to amend the judgment.

                                                   I.

        The relevant facts are as follows. Patrick Griffin instituted this action

alleging that he developed chronic obstructive pulmonary disease because of his

addiction to cigarettes manufactured by Philip Morris. As a result of the disease,

Griffin underwent a lung transplant at the University of Wisconsin Hospital

(“UWH”). Griffin received a bill of $345,081.27 for the transplant and associated

care on July 28, 2009. The bill, however, stated that the claim was “payable under

the global package rate specified in the contract between [UWH] . . . and VA

HOSPITAL,” which reduced the “[t]otal reimbursement” to $154,457.00.


        1
          Defendant argues that federal law preempts the strict liability and negligence claims
brought under Florida law. In Graham, we held that “federal tobacco laws do not preempt state
tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco
companies.” Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1186 (11th Cir. 2017) (en
banc), cert. denied, 138 S. Ct. 646 (2018). Our decision in Graham resolves this issue. The
claims are not preempted.
        In the alternative, the defendant argues that it is entitled to a new trial because the District
Court failed to instruct the jury that Philip Morris cannot be held liable for the mere
advertisement, sale, or manufacture of cigarettes. Graham forecloses this argument as well. Id.
at 1182–83.
                                                   2
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       Despite this contractual discount, the parties stipulated at trial that UWH

charged the plaintiff $345,081.27 for the lung transplant, the undiscounted amount.

The District Court accordingly instructed the jury that “[t]he amount of the

plaintiff’s past medical expenses is $584,200.53,” which included the undiscounted

cost of the lung transplant. The jury found for the plaintiff and awarded him

$1,268,402 in compensatory damages, with the fault allocated equally between the

plaintiff and defendant. It issued this award in a general verdict, which did not

differentiate between the various economic and non-economic damages. The

District Court entered judgment against the defendant on July 17, 2014 and

awarded $634,201 in damages. 2

       A month later, on August 14, 2014, the defendant filed a motion under Rule

59(e) to reduce the damages in the judgment by $95,312.13 to reflect the

contractual discount the VA Hospital received in paying for the plaintiff’s lung

transplant. The District Court denied the motion on the ground that “amend[ing]

the judgment as Defendant requests would be an exercise in impermissible

speculation” because “[t]he general verdict returned by the jury does not state how

much, if any, the jury awarded Plaintiff for past medical expenses.”




       2
        The District Court entered an amended judgment against the defendant on November 5,
2014 that awarded the plaintiff $547,851.60 in damages and attorney fees.
                                             3
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                                                  II.

      “The decision to alter or amend judgment is committed to the sound

discretion of the district judge and will not be overturned on appeal absent an

abuse of discretion.” Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc.,

763 F.2d 1237, 1238–39 (11th Cir. 1985).

      We see no abuse of discretion in this case. We have held that collateral

benefits must be subtracted from the “portion of a verdict representing the same

item of damages,” not the “total verdict.” Ganley v. United States, 878 F.2d 1351,

1353–54 (11th Cir. 1989). In accordance with this principle, where the defendant

has failed to obtain a special verdict, the Florida courts have refused to setoff

collateral source payments to avoid “speculation.” Johnson v. LaSalle, 774 So. 2d

760, 761 (Fla. Dist. Ct. App. 2000); see also Midtown Enters., Inc. v. Local

Contractors, Inc., 785 So. 2d 578, 582–83 (Fla. Dist. Ct. App. 2001); Magsipoc v.

Larsen, 639 So. 2d 1038, 1042–43 (Fla. Dist. Ct App. 1994); Odom v. Carney, 625

So. 2d 850, 851 (Fla. Dist. Ct. App. 1993). Therefore, because of the general

verdict in this case,3 the District Court did not abuse its discretion in denying the

Rule 59(e) motion to amend the judgment out of concerns with speculation.

      AFFIRMED.




      3
          Defendants did not object to the use of a general verdict at trial.
                                                   4
