Liggett Group Inc. v. Engle (853 So. 2d 434, 2003)

GERSTEN, J.

This is an appeal from a final judgment in a smokers’ class action law suit seeking damages against cigarette companies and industry organizations for alleged smoking related injuries. The final judgment awarded $12.7 million in compensatory damages to three individual plaintiffs, and $145 billion in punitive damages to the entire class. We reverse with instructions that the class be decertified.

I. Overview

In May of 1994, six named individuals filed a class action complaint seeking damages for injuries allegedly caused by smoking. All six alleged they were unable to stop smoking because they were addicted to nicotine and, as a result, developed medical problems ranging from cancer and heart disease to colds and sore throats. They sought over $100 billion in compensatory damages on theories of strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress. In addition, the plaintiffs sought over $100 billion in punitive damages on their claims for fraud, conspiracy, and emotional distress. The defendants are the major domestic cigarette companies and two industry organizations (hereafter collectively referred to as “defendants”).

The class of smokers and their survivors (hereafter collectively referred to as “plaintiffs”) was certified in October of 1994 as a nationwide class action under Florida Rule of Civil Procedure 1.220(b)(3). The trial court defined the class as: “All United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”

Thereafter in 1996, this Court reduced the class to include Florida smokers only. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla. 3d DCA 1996). This Court did not approve any trial plan for the ease, because no trial plan had been issued at that time.

In February of 1998, the trial court issued its first trial plan, which provided for the trial proceedings to be divided into three phases. Phase 1 consisted of a year-long trial on liability and entitlement to punitive damages. The jury considered common issues relating exclusively to defendants’ conduct and the general health effects of smoking. At the conclusion of Phase 1, the jury rendered a verdict for the class on all counts.

In Phase 2, the jury determined that the three individual class representatives were entitled to compensatory damages in varying amounts which were offset by their comparative fault. The total award was $12.7 million. Thereafter, the jury determined the lump-sum amount of punitive damages for the entire class to be $145 billion, without allocation of that amount to any class member.

The defendants filed several post-verdict motions, including motions for remittitur and class decertification. The trial court did not hold hearings on the post-verdict motions. Instead, in November of 2000, the trial court entered an “Omnibus Order on All Pending Motions” denying most of the defense motions, with two minor exceptions. The Omnibus Order granted judgment in the plaintiffs’ favor in all other respects, ordering immediate payment to the individual plaintiffs, and directing the defendants to immediately pay the $145 billion in punitive damages into the court registry for the benefit of the entire class. The trial court reserved jurisdiction to “conduct further proceedings pursuant to the mandate of the Third District Court of Appeal” — an apparent reference to the coming Phase 3 trials and this Court’s 1996 ruling that individual hearings are required “on at least the issue of damages, if not other issues as well.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d at 41.

In Phase 8, which has not yet begun, new juries will decide the individual liability and compensatory damages claims for each class member (estimated to number at least 700,000). The trial court will then divide the $145 billion punitive damages award equally among the successful class members. Pursuant to the Omnibus Order, interest on the $145 billion punitive award began accruing immediately at $14.5 billion annually. The defendants now appeal the adverse Omnibus Order.

II. Class Decertification Required

Although the emotional appeal of the class representatives’ claims is compelling, our job as appellate judges is not to be swayed by emotion where to do so results in violating established legal principles. The law in the instant case clearly mandates that the trial court order certifying the class be reversed, with instructions that the class members may pursue their claims on an individualized basis.

Under Florida Rule of Civil Procedure 1.220(d)(1), a class-certification order may be altered or amended at any time before entry of a judgment on the merits. Class-certification orders necessarily precede substantial development of the issues and facts. For this reason, a court is required to reassess its class rulings as the case develops. See Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir.1998); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Product Liab. Litig., 55 F.3d 768, 792 n. 14 (3d Cir.1995); Stott v. Haworth, 916 F.2d 134, 139 (4th Cir.1990); Kuehner v. Heckler, 778 F.2d 152, 163 (3d Cir.1985); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983). Thus, even after a certification order is entered, “the judge remains free to modify it in the light of subsequent developments in the litigation.” Forehand v. Florida State Hosp., 89 F.3d 1562, 1566 (11th Cir.1996).

In 1996, this Court affirmed as modified the trial court order certifying the class. See R.J. Reynolds Tobacco Co., et al. v. Engle, et al., 672 So.2d 39 (Fla. 3d DCA 1996). At that time, we limited the case to a Florida-only class based upon our finding that a nationwide class would be unmanageable because it would comprise in excess of one million class members. See R.J. Reynolds Tobacco Co., et al. v. Engle, et al., 672 So.2d at 41. This was the first smokers’ case to be certified as a class action anywhere in the country. At the time of certification, no trial plan had been issued and the plaintiffs estimated the class size at approximately 300,000 people.

Two years after class certification, the trial court issued its first trial plan. As finally implemented, the plan provided that trial would be divided into three phases. In Phase 1, which has been completed, the jury made a general finding that smoking causes some, but not all, of the diseases in issue and that cigarettes containing nicotine are addictive. The jury also made a general finding that the defendants had engaged in unspecified conduct that “rose to a level that would permit a potential award or entitlement to punitive damages.”

In Phase 2, which has also been completed, the same jury found the three class representatives established liability and compensatory damages with respect to their individual claims. The jury then awarded a lump sum of $145 billion dollars in punitive damages to the entire class, without allocation to any class member.

The trial plan provides that Phase 3, which has not yet begun, will consist of a series of individual trials before new juries to determine whether the defendants are liable to the other class members, and the amount of any compensatory damages. The plaintiffs have now more than doubled their original estimate of class size from 300,000 to at least 700,000. After completion of the estimated 700,000 or more class member individual trials, the plan provides that the trial court will then equally divide the $145 billion dollar lump-sum punitive award among the successful class members.

The defendants objected to the trial plan and filed their first motion to decertify the class in 1998. The trial court denied the motion, although it expressed “reservations about the manageability of this case” and predicted that “the necessary individual hearings will place a serious demand upon Florida’s judicial resources.”

The denial of decertification was then appealed to this Court. This Court dismissed the appeal for lack of jurisdiction, but expressly stated that the defendants had a right to obtain review of “the propriety of the order by plenary appeal from any adverse final judgment.”

In the years since initial affirmance of certification in 1996, virtually all courts that have addressed the issue have concluded that certification of smokers’ cases is unworkable and improper. See Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir.1998), cert. denied, 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791 (1999); Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996); Estate of Mahoney v. R.J. Reynolds Tobacco Co., 204 F.R.D. 150 (S.D.Iowa 2001); Badillo v. American Tobacco Co., 202 F.R.D. 261 (D.Nev.2001); Guillory v. American Tobacco Co., 2001 U.S. Dist. LEXIS 3353 (N.D.Ill. Mar. 19, 2001); Aksamit v. Brown & Williamson Tobacco Corp., 2000 U.S. Dist. LEXIS 18880 (D.S.C. Dec. 29, 2000); Walls v. American Tobacco Co., 2000 U.S. Dist. LEXIS 16040 (N.D.Okla. Oct. 19, 2000); Chamberlain v. American Tobacco Co., 70 F.Supp.2d 788 (N.D.Ohio 1999); Hansen v. American Tobacco Co., 1999 U.S. Dist. LEXIS 11277 (E.D.Ark. July 21, 1999); Thompson v. American Tobacco Co., 189 F.R.D. 544 (D.Minn.1999); Clay v. American Tobacco Co., 188 F.R.D. 483 (S.D.Ill.1999); Insolia v. Philip Morris, Inc., 186 F.R.D. 535 (W.D.Wis.1998); Emig v. American Tobacco Co., 184 F.R.D. 379 (D.Kan.1998); Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194 (D.P.R.1998); Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90 (W.D.Mo.1997); Tijerina v. Philip Morris Inc., 1996 WL 885617 (N.D.Tex. Oct.8, 1996); Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200 (2000); Reed v. Philip Morris, Inc., 1997 WL 538921 (D.C.Super.Ct. Aug. 18, 1997), and on second motion, No. 96-5070 (D.C.Super.Ct. July 23, 1999); Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 679 N.Y.S.2d 593 (1998), aff'd, 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892 (1999); Geiger v. American Tobacco Co., 181 Misc.2d 875, 696 N.Y.S.2d 345 (N.Y.Sup.Ct.1999), aff'd, 277 A.D.2d 420, 716 N.Y.S.2d 108 (N.Y.App.Div.2000).

These class action decisions all applied rules that are functionally identical to Florida’s class action rules. In many instances these courts denied certification based upon the demonstrated problem in the instant case. Simply, that the plaintiffs smokers’ claims are uniquely individualized and cannot satisfy the “predominance” and “superiority” requirements imposed by Florida’s class action rules. See Barnes v. American Tobacco Co., 161 F.3d at 149 (certification improper because smokers’ claims involve “individual issues” such as “nicotine addiction, causation, ... contributory/comparative negligence and the statute of limitations”); Badillo v. American Tobacco Co., 202 F.R.D. at 263-65 (proposed class of persons exposed to second-hand smoke improper for certification because of individual issues of “causation, comparative fault, assumption of the risk, product identification, statute of limitations, and damages”); Thompson v. American Tobacco Co., 189 F.R.D. at 551-52 (refusing to certify because individual issues predominated); Emig v. American Tobacco Co., 184 F.R.D. at 387-95 (refusing to certify because smokers’ claims are individualized); Barreras Ruiz v. American Tobacco Co., 180 F.R.D. at 196-99 (refusing to certify for failure to satisfy requirements of commonality, representativeness, and fairness).

To be certified, a class must satisfy the prerequisites of Florida Rule of Civil Procedure, Rule 1.220. Rule 1.220(a) requires that common issues of law predominate over the different individual issues at the core of each class member’s claim. See Stone v. Compuserve Interactive Serv’s, Inc., 804 So.2d 383 (Fla. 4th DCA 2001). This “predominance” or “commonality” requirement is not satisfied, where claims involve factual determinations unique to each plaintiff. See Execu-Tech Bus. Sys. Inc. v. Appleton Papers, Inc., 743 So.2d 19 (Fla. 4th DCA 1999).

Rule 1.220 also requires that class representation be superior to other available methods of fairly and efficiently adjudicating the claims presented. See Castano v. American Tobacco Co., 84 F.3d at 734; Emig v. American Tobacco Co., 184 F.R.D. at 379; Humana, Inc. v. Castillo, 728 So.2d 261 (Fla. 2d DCA 1999). If significant individual issues exist, little value is gained by proceeding as a class action. Not only would the lawsuit become unmanageable, it would further be unjust to bind absent class members to a negative decision where the class representative’s claims present different individual issues than those of the absent members. Under these circumstances, class representation would not be “superior” to individual suits for the fair and efficient adjudication of the controversy. See Fla. R. Civ. P. 1.220(b)(3).

Phase 2 of the trial conclusively established that individualized issues of liability, affirmative defenses, and damages, outweighed any “common issues” in this case, and that class representation is not superior. Specifically, concrete proof relating to the class representatives; Mr. Amodeo, Ms. Farnan, and Ms. Della Veec-hia, established that individualized issues predominate and render further proceedings unmanageable.

As evidenced by the proceedings in Phase 2, each claimant will have to prove that his or her illness not only was caused by smoking, but was also proximately caused by defendants’ alleged misconduct. For example, with respect to any misrepresentation claim, each Phase 3 claimant will have to prove that he or she actually and reasonably relied on a false statement of material fact. This requires an individualized showing of rebanee. See Shoma Dev. Corp. v. Vazquez, 749 So.2d 1287, 1289 (Fla. 3d DCA 2000)(class action not appropriate for fraud claims; rebanee of one purchaser does not establish that of others); Castano v. American Tobacco Co., 84 F.3d at 745 (“fraud class action cannot be certified when individual reliance will be an issue”); Clay v. American Tobacco Co., 188 F.R.D. at 492 (denying certification of claims alleging fraudulent marketing of cigarettes because “all members of the proposed class were not subjected to the same advertising and that advertising did not have a similar effect on ah members.”).

Because each class member had unique and different experiences that will require the litigation of substantially separate issues, class representation is not “superior” to individual suits. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir.2001); Haley v. Medtronic, Inc., 169 F.R.D. 643 (C.D.Cal.1996); see also Barnes, 161 F.3d at 145-46 (proof of general causation in cigarette litigation does not establish tort liability); In re “Agent Orange” Product Liab. Litig., 818 F.2d 145, 164-65 (2d Cir.1987) (Main issue “is not whether [defendant’s product] has the capacity to cause harm, the generic causation issue, but whether it did cause harm and to whom.”).

This is further evidenced by the fact that affirmative defenses and damages must be litigated individually. This Court has already recognized that damages require individualized proof. See Engle, 672 So.2d at 41. Particularly in this type of smoking case where proof of damages is essential to liability, damages cannot be determined on a class-wide basis because the issue of damages requires individualized proof with regard to each smoker. See Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d at 19 (class certification improper because “the issue of damages and impact in the case simply ‘does not lend itself to [a mechanical calculation] but requires separate mini-trials, of an overwhelmingly] large number of individual claims’ ”); Smith v. Texaco, 263 F.3d 394 (class members who “challenge^] broad policies and practices that were applied in a non-standard way” could not assert uniform injuries and were required to prove punitive damages individually), opinion withdrawn, cause dismissed by, 281 F.3d 477 (5th Cir.2002); Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 147 (4th Cir.2001) (impermissible to determine damages on a class-wide basis when the governing law requires individualized proof of damages; common issues may not predominate where proof of damages is essential to liability); Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir.l977)(common issues did not predominate even though the case presented a common question of violation, because there existed individualized issues of injury and damage).

Similarly, individualized choice-of-law issues demonstrate that class proceedings in the instant case are unmanageable and cannot be viewed as superior to individual litigation. See Stone v. Compuserve Interactive Serv., Inc., 804 So.2d at 383 (class certification improper where, among other things, individualized choice-of-law inqui-ríes are required); see also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.2001) (certification improper because of “individualized issues and variances in state law”); Castano v. American Tobacco Co., 84 F.3d at 741-44 (discussing how variations in state law can “swamp any common issues and defeat predominance”).

For choice-of-law purposes, Florida law utilizes the “most significant relationship” test which provides that: “The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties.” Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980) (internal citation omitted); see also, Ryder Truck Rental, Inc. v. Rosenberger, 699 So.2d 713, 715 (Fla. 3d DCA 1997).

Applying Florida’s “most significant relationship” test to the present case, the trial court was required to take into account a variety of factors beyond the place where the cause of action arose. During pretrial proceedings, undisputed evidence showed that nearly 50% of Florida residents who are over 50 years old — those most likely to be class members' — moved to Florida after reaching age 50. Moreover, more than 65% of all current and former smokers in Florida moved here after they became regular smokers. The demographic evidence presented at trial strongly suggested many class members were not Florida residents at the time of diagnosis or manifestation.

If diagnosis or manifestation did not occur during residency in Florida, each court in the Phase 3 proceedings will have to perform a full choice-of-law analysis and apply the law of the state with the most significant relationship to the parties and the occurrence. Especially in a state which has a highly transient population, choice-of-law problems present an insuperable roadblock to smokers’ class actions, even where the class is limited to one state’s residents. See Reed v. Philip Morris, Inc., 1997 WL 538921 (D.C.Super.Ct. Aug. 18, 1997)(memorandum opinion and order).

As noted in Reed v. Philip Morris, Inc., 1997 WL 538921 (D.C.Super.Ct. Aug. 18, 1997) which denied class certification to plaintiff smokers where the choice-of-law analysis applied was the “most significant relationship” test:

A class member may have started smoking, learned of the dangers of smoking, tried to quit, been diagnosed with a smoking-related illness, and/or changed brands, all in different states. Accordingly, this court would have to examine the laws of virtually every state, as it is conceivable, with the transient population of the District, that each of these issues may have arisen in different states with different class members, to determine if a conflict exists and then determine which state has the most significant interest. The potential for conflicts of law mitigates against certification.

See also Smith v. Brown & Williamson, 174 F.R.D. at 95 (rejecting smokers’ class limited to one state’s residents in part because of manageability problems in applying the “most significant relationship” test); Tijerina v. Philip Morris Inc., 1996 WL 885617, at *5; Philip Morris v. Ange-letti, 752 A.2d at 230-33 (rejecting smokers’ class limited to Maryland residents in part because of manageability problems in applying simpler “lex loci de-licti” test).

The choice-of-law analysis in the present ease will require examination of numerous significantly different state laws governing the different plaintiffs’ claims. This fact further supports our conclusion that common questions do not predominate over individual issues, and that the superiority and the management of this trial could not be fairly and efficiently conducted as a class action.

The plaintiffs’ “negative value” argument in response to the above-cited and well-established line of authority does not justify improper class certification. The plaintiffs suggest certification must be maintained at any cost because otherwise individual plaintiffs will be left with no viable remedy, absent class certification. According to the plaintiffs, individual plaintiffs could not successfully litigate against the tobacco industry because lawyers will shun smokers’ individual cases as “cost prohibitive and impractical.”

This factor by itself is insufficient to overcome the hurdles of predominance and superiority, and efficient and fair management of a trial, which are required by our class action rules. The serious problems this type of class action suffers in terms of both efficiency and fairness cannot be resolved by characterizing individual smokers’ claims as having a “negative value.” To do so is not only intellectually improper, but also clearly refuted by the Phase 2 verdict, where the jury awarded $12 million dollars in compensatory damages to just three smokers on their individual claims. The plaintiffs’ “negative value” claim is baseless and does not “justify the headlong plunge into an unmanageable and interminable litigation process that, at the outset, shows little promise for fairness to either [plaintiffs] or the defendant manufacturers.” Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194, 199 (D.P.R.1998); accord Castano, 84 F.3d at 748; In re LifeUSA Holding, Inc., 242 F.3d 136, 148 n. 13 (3d Cir.2001).

In sum, particularly with regard to the determination of causation and damages, and where claims could require application of the laws of numerous other states, it is inescapable that the predominance and superiority requirements for class action have not been met. As succinctly stated by one commentator:

[I]f the main issues in a case require the separate adjudication of each class member’s individual claim or defense, a Rule 23(b)(3) action would be inappropriate.... Moreover, when individual rather than common issues predominate, the economy and efficiency of class action treatment are lost and the need for judicial supervision and the risk of confusion are magnified.

7 a Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1778 at 535-39 (2d ed,1986)(footnotes omitted).

As now demonstrated by the two-year trial, even though there is a common nucleus of facts concerning the defendants’ conduct, this case presents a multitude of individualized issues which make it particularly unsuitable for class treatment. See State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So.2d 516, 518 (Fla. 3d DCA 2002); Humana, Inc. v. Castillo, 728 So.2d 261, 265-66 (Fla. 2d DCA 1999); see also In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir.2002) (reversing certification; differences in state law cannot be overridden based upon a quest to clear the queue in court); Stirman v. Exxon Corp., 280 F.3d 554, 564 (5th Cir.2002) (reversing certification because district court failed to take into account significant variations in state law that defeat predominance). A class action is not superior to alternative means of adjudication, and the record does not support the requisite findings under Florida Rule of Civil Procedure, Rule 1.220.

The trial record and recent case law conclusively establish that Florida’s class action rules, substantive tort law, and state and federal guarantees of due process and a fair trial, require class decertification. In accordance with the numerous cases which have found class certification improper in virtually identical smokers’ claims cases, we find the class must be decertified. Accordingly, the certification of the class is reversed, with instructions to decertify and to allow all class members whose claims have not yet been tried to proceed individually.

III. Punitive Damages: “The Cart Before Horse”

The order below must also be reversed because the trial court erred in awarding and ordering payment of class-wide punitive damages without the necessary findings of liability and compensatory damages. The order violates well-established Florida precedent by: a) improperly requiring the defendants to pay punitive damages for theoretical injuries to hundreds of thousands of class members, without a determination that defendants are liable for such injuries; b) precluding the constitutionally required comparison of punitive damages and compensatory damages; and c) eliminating the jury’s discretion to assess punitive damages based upon the individual class members’ varying circumstances.

In Phase 1, the jury answered certain general questions about the defendants’ products and conduct. The questions related to some, but not all of the elements of each legal theory alleged. The jury also found that unspecified conduct by the defendants “rose to a level that would permit a potential award or entitlement to punitive damages.”

The jury did not determine whether defendants were liable to anyone. Essential elements of liability, such as rebanee and proximate cause, were never tried in Phase 1. Instead, they were left to be tried separately for each class member in Phase 2 or Phase 3. Yet, regardless of how many of the assumed 700,000 or more class members actually proceed to try their claims in Phase 3 and ultimately establish liability and compensatory damages, the defendants must pay $145 billion dollars in punitive damages.

Florida law requires that a defendant be found liable before any punishment is imposed. Accordingly, “[w]here actual damage is an element of the underlying cause of action, an award of compensatory damages must be a prerequisite to an award of punitive damages.” Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989)(Ehrlich, C.J. concurring); see also W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994)(punitive damages in bifurcated trial may not be determined until after the jury has determined liability for compensatory damages and the amount of compensatory damages); Oliveira v. Ilion Taxi Aero Ltda, 830 So.2d 241 (Fla. 4th DCA 2002)(punitive damages award reversed because there was no finding of liability). Federal due process law incorporates the same principle. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 418 (5th Cir. 1998) (punitive damages “must be determined after proof of liability to individual plaintiffs”); Taber Partners I v. Merit Builders, Inc., 121 F.3d 695 (1st Cir.1997) (unpublished table decision) (a “firmly established legal rule is that a finding of liability must precede any finding of damages”).

Without this prior assessment it is impossible to determine whether punitive damages bear a “reasonable” relationship to the actual harm inflicted on the plaintiff, as required by Florida and federal law. See § 768.74(5)(d), Fla. Stat. (1997); Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530, 533 (Fla.1985); Langmead v. Admiral Cruises, Inc., 696 So.2d 1189, 1193-94 (Fla. 3d DCA 1997) (under Florida and federal due process laws, a punitive award must be proportionate to the “actual harm inflicted on the plaintiff’); see also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 441-42, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (courts must examine “the ratio between the size of the award of punitive damages and the harm caused”); BMW of North America, Inc. v. Gore, 517 U.S. 559, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (due process requires consideration of the “ratio” of punitive damages “to the actual harm inflicted on the plaintiff’).

Establishment of this reasonable relationship requires a prior determination of the compensatory damages caused by the alleged misconduct. See Op. Att’y Gen. Fla., 2000 WL 329587 (Fla.A.G.2000)(“[i]n the absence of any determination of the extent of compensatory damages, the court lacks a standard by which it can judge whether an assessment of punitive damages is reasonable or is grossly excessive”). Without this prior determination, any comparison between a punitive award and the “actual harm” is impossible.

For this reason, federal and other state courts have repeatedly held that compensatory damages must be tried before punitive damages. See Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425; see also, Allison, 151 F.3d at 418 (punitive damages in a multi-stage class action “must be determined after proof of liability to individual plaintiffs”); Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 97 (W.D.Mo.1997) (rejecting a trial plan that required the jury to assess class-wide punitive damages before assessing compensatory damages); Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200, 247 (2000)(“Maryland law prohibit[s] an award of punitive damages made without regard to the actual compensatory damages to be awarded”); cf. EEOC v. W & O, Inc., 213 F.3d 600, 615 (11th Cir.2000)(“Before comparing the punitive damages to the actual damages, we must first determine what the ‘actual damages’ were”).

In an apparent effort to sidestep this well-established authority, the plaintiffs argue Ault v. Lohr, 538 So.2d at 454, and W.R. Grace & Co. v. Waters, 638 So.2d at 502, have been complied with, contending that the Phase 1 verdict constitutes a finding that defendants “breached a duty.” According to the plaintiffs, that finding alone is a sufficient predicate for a class-wide punitive award — even though it is not a finding of liability. The plaintiffs have misread Ault.

In Ault, the jury found the defendant was hable for civil assault and battery, not just that he had “breached a duty.” The jury then awarded punitive damages without awarding compensatory damages. The Florida Supreme Court held that even in the absence of compensatory damages, the punitive award was proper because it rested on the jury’s “express finding of liability.” Ault v. Lohr, 538 So.2d at 456.

Plaintiffs’ “breach of duty” theory ignores the essential finding of liability in Ault. A punitive award is proper only if the plaintiff proves every element of liability on the underlying cause of action. See Ault v. Lohr, 538 So.2d at 457 (Ehrlich, C.J., concurring). See also, Nat'l Air craft Services, Inc. v. Aeroserv Int’l, Inc., 544 So.2d 1063, 1065 (Fla. 3d DCA 1989)(a fraud plaintiff who fails to obtain compensatory damages has not proved all the elements of fraud and thus may not obtain punitive damages).

Here, the plaintiffs sought punitive damages for fraud, concealment, and “intentional infliction of emotional distress.” Liability for each of those causes of action requires much more than just a “breach of duty.” Each requires actual injury, compensatory damages, and other liability elements as well. Thus regardless of whether the Phase 1 verdict constituted a finding that defendants “breached a duty,” such a finding is an insufficient predicate for the punitive award because it fails to establish actual injury and compensatory damages, plus other elements of liability, as to any of the individual class members.

The plaintiffs’ alternatively argue Ault has been satisfied claiming the Phase 1 verdict actually did establish the defendants’ “liability” to each class member. This argument is similarly meritless. The mere finding that smoking causes certain diseases does not establish the causation elements of liability.

Specific medical causation and legal causation, along with other elements of liability, must be established on an individualized basis. As noted by one court, “a finding of ‘general causation’ would do little to advance this [smokers class] litigation. Liability will not turn on whether cigarettes are generally capable of causing disease; liability will depend upon whether cigarettes caused a particular plaintiffs disease.” See Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. at 96. No findings of specific medical and legal causation were made in the plaintiff-less Phase 1 trial.

Finally, the plaintiffs attempt to satisfy Ault by claiming the Phase 2 verdict as to the three individual class representatives established the defendants’ liability to all class members, and hence awarding punitive damages to the entire class is appropriate. This argument is also fundamentally flawed.

The defendants are entitled to a jury determination, on an individualized basis, as to whether and to what extent each particular class member is entitled to receive punitive damages. One class member’s circumstances cannot serve as a proxy for another’s. See, e.g., In re Cop ley Pharm., Inc., 161 F.R.D. 456, 467 (D.Wyo.1995) (rejecting proposal to try punitive liability as a class-wide issue because punitive damages are measured, in part, by the outrageousness of the conduct relative to a particular plaintiff); see also, Reap v. Cont’l Cas. Co., 199 F.R.D. 536, 549 (D.N.J.2001) (denying class eertification because, among other things, calculating compensatory and punitive damages would be an individualized task); Adams v. Henderson, 197 F.R.D. 162, 172 (D.Md.2000) (denying class certification due to, among other things, the fact that individualized damages inquiries would inevitably by required for the compensatory and punitive damages claims).

This Court specifically recognized in its 1996 mandate that “the issue of damages” in this case must “be tried as to each class member.” Engle, 672 So.2d at 41. Our ruling made no distinction between compensatory and punitive damages.

The award below directly violates this Court’s mandate because it allows the trial of three individuals’ claims to establish entitlement to punitive damages with respect to the entire class. Our mandate was in accord with settled Florida law which provides that, “awarding punitive damages along with compensatory damages [is] discretionary [with the jury], even if the elements authorizing punitive damages [are] present.” Bankers Multiple Line Ins., 464 So.2d at 532; see also, Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486-87 (Fla.1999); Wackenhut Corp. v. Canty, 359 So.2d 430, 436 (Fla.1978); Humana Health Ins. Co. v. Chipps, 802 So.2d 492 (Fla. 4th DCA 2001); 1 J. Kircher & C. Wiseman, Punitive Damages: Law & Practice § 5; 23, at 5-152 (2d ed.2000) (“the jury, in its discretion, may withhold [punitive] damages in the face of overwhelming proof of the requisite egregious conduct on the part of the defendant”).

Yet the plaintiffs suggest that it was proper for the trial court to “extrapolate” the class representatives’ damages to the rest of the class during the punitive damages phase of the trial. Extrapolation is not theoretically permissible in this case because of the absence of essential information concerning actual class size, class composition, and the amounts of compensatory damages ultimately recoverable by class members. Essentially, the compensatory damages awarded to the three Phase 2 plaintiffs proved nothing about the amounts of compensatory damages potentially recoverable by the hundreds of thousands of class members whose claims have not yet been tried. See Smith v. Texaco, 263 F.3d at 410 (where injuries are not uniform among class members, “an individualized inquiry is necessary” as to punitive damages); Cimino v. Raymark Indus., Inc., 151 F.3d 297, 319 (5th Cir.1998); In re Fibreboard Corp., 893 F.2d 706, 710-12 (5th Cir.1990); In re Tetracycline Cases, 107 F.R.D. 719, 734-35 (W.D.Mo.1985).

The plaintiffs’ arguments in this regard contradict settled Florida law and basic concepts of due process. A claim for punitive damages is not a separate and distinct cause of action; rather it is auxiliary to, and dependent upon, the existence of an underlying claim. As such, any award of punitive damages can only be entered after awarding damages in conjunction with an underlying and successful claim for actual damages. See State Farm Mutual Automobile Ins. Co. v. Campbell, — U.S. —, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)(punitive award must be limited to unlawful conduct that has a nexus to the “specific harm suffered by the plaintiff’; punitive award must be based upon facts and circumstances of the defendant’s conduct and “the harm to the plaintiff’; courts must ensure punitive award is “proportionate to the amount of harm to the plaintiff’).

The trial plan in the instant case required the defendants to pay punitive damages for supposed injuries to thousands of class members without the necessary prerequisite findings of liability and compensatory damages. Since the class-wide punitive damages award improperly places the proverbial “cart before the horse,” it must be reversed.

IV. Punitive Award Excessive Under State and Federal Law

It is well established that punitive damages may not be assessed in an amount which will financially destroy or bankrupt a defendant. See Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039, 1043 (Fla.1982); Lipsig v. Ramlawi, 760 So.2d 170, 188 (Fla. 3d DCA 2000), review denied, 786 So.2d 579 (Fla.2001); Brooks v. Rios, 707 So.2d 374, 375 (Fla. 3d DCA 1998); Hockensmith v. Waxier, 524 So.2d 714, 715 (Fla. 2d DCA 1988). And yet, that is precisely what occurred in the instant case.

This trial produced the largest punitive damage verdict in American legal history. As acknowledged by even the plaintiffs’ purported experts, the $145 billion punitive award will extract all value from the defendants and put them out of business, in violation of established Florida law that prohibits bankrupting punitive awards.

The defendants established that their combined net worth was no more than $8.3 billion. Their collective capacity to pay any punitive award while still remaining in business was far less. The $145 billion verdict is roughly 18 times the defendants’ proven net worth.

There is no precedential authority for such an award. No Florida decision endorses even a remotely comparable award. The largest reported awards involved only a fraction of a defendant’s net worth. See Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) (2%); Bould v. Touchette, 349 So.2d 1181 (Fla.1977) (6.2%); Zambrano v. Devanesan, 484 So.2d 603 (Fla. 4th DCA 1986) (14.29%); Smith v. Telophase Nat’l Cremation Soc’y, Inc., 471 So.2d 163 (Fla. 2d DCA 1985) (20%); see also People ex rel. Dep’t of Transp. v. Grocers Wholesale Co., 214 Cal.App.3d 498, 262 CaLRptr. 689, 699-700 (1989) (noting that while 10% is the maximum for punitive damage awards, significantly lower percentages are generally the norm). No case has awarded punitive damages based upon multiples of net worth, as was done in the present case.

A defendant’s financial capacity is a crucial factor in determining the appropriateness of a punitive damages award. The amount awarded should be large enough to provide retribution and deterrence, but cannot be so great as to result in bankruptcy. Punitive damages are imposed to benefit society’s interests. Because society has an interest in protecting future claimants’ demands, the importance of the relationship between the amount of punitive damages and the ability of the defendant to pay the award cannot be ignored.

The excessive award in the present case will frustrate the societal interest in protecting all injured claimants’ rights to at least recover compensatory damages for their smoking related injuries. Smokers with viable compensable claims will have no remedy if the bankrupting punitive award in the instant case is upheld.

For the several reasons stated above, we find the trial court abused its discretion when it denied the defendants’ motion for either a remittitur or a new trial. This unprecedented punitive damages award is excessive as a matter of law, and thus does not promote a valid societal interest. See State Farm Mutual Automobile Ins. Co. v. Campbell, — U.S. —, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)(punitive award of $145 million on a $1 million compensatory judgment held excessive; award exceeding single-digit ratio between punitive and compensatory damages presumptively violates due process.) As discussed further below, the bankrupting punitive award resulted from inflamed juror passion and prejudice which blinded the jury from properly considering the purpose of the award in relation to the defendants’ financial capacity.

V. Inflammatory Arguments Mandate Reversal

Plaintiffs’ counsel’s improper race-based appeals for nullification caused irreparable prejudice and require reversal. It is obvious that the “runaway” jury-award was largely the result of numerous improper comments by plaintiffs’ counsel directing the jury to disregard limitations on punitive damages. The trial was book-ended with prejudicial attorney misconduct which incited the jury to disregard the law because the defendants are tobacco companies.

This was accomplished in two stages. First, by inflaming the jury with racial pandering and pleas for nullification of the law to secure entitlement to punitive damages. And second, by removing responsibility from the jury for the size of the award, through arguing the award would be subject to appellate review and that it would not be paid out in a lump sum, but rather through a payout scheme.

Plaintiffs’ counsel began making racially-charged arguments on the first day of trial. This was done before a jury where four of the six venire members were African-American. In opening statements during the Phase 1 trial, plaintiffs’ counsel told the jury that the defendants “study races” and “divide the American consumer up into groups,” including “white” and “black.” Plaintiffs’ counsel then explicitly tied these racial references to appeals for jury nullification of the law during closing argument. He set the stage by telling the jury: “And let’s tell the truth about the law, before we all get teary-eyed about the law. Historically, the law has been used as an instrument of oppression and exploitation.” Plaintiffs’ counsel then juxtaposed defendants’ conduct with genocide and slavery. Although the trial court sustained a defense objection, plaintiffs’ counsel proceeded to tell the jury that, like slavery and the Holocaust, there was just one “side” to whether the defendants should continue to sell cigarettes:

If you admit that you sell a product that causes cancer — I admit my product causes cancer — and if you also admit it’s also addictive, get out of the business. That’s the only moral, ethical, religious, decent judgment to make.... If you sell a product which causes cancer and which is addictive, stop selling it. Stop selling it, because you know it’s doing unbelievable harm to your fellow Americans.

The defendants’ objection was overruled, allowing plaintiffs’ counsel to conclude: “[The defendants say] [i]t’s a legal product. It’s a legal product. Legal don’t make it right. Legal don’t make it right.”

For more than sixty years, federal statutes have protected the right to sell cigarettes, even though Congress has recognized that cigarettes are dangerous. Federal law preempts claims that selling cigarettes is tortious or otherwise improper. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). A defendant cannot be punished for lawful conduct. See State Farm, 123 S.Ct. at 1522.

Yet counsel repeatedly urged the jury to fight what he called “unjust laws” citing the civil disobedience of Martin Luther King and Rosa Parks. Counsel compared the defendants’ reliance on the laws which provided it is lawful to market and sell cigarettes, to positions taken by defenders of slavery and of the holocaust. He compared the jurors task, to the fight against segregation, invoking Rosa Parks, Dr. King, and, as he put it, the whole civil rights movement of the 60’s, as a fight against unjust laws. He then tied this period in the past directly to the defendants, by telling the jury to stand up to the defendants’ lawful conduct in marketing and selling cigarettes.

At the end of plaintiffs’ first day of closing, defendants renewed their request for a mistrial, citing a variety of improper arguments including the statements quoted above. With reference to those statements, plaintiffs’ counsel admitted that he had asked the jury to disregard the law, just as Dr. King and Rosa Parks had disregarded laws that were later “recognized as wrong”:

I submit that in a case where one of their strongest legal defenses is that: We make a legal product, it is a legal product, that it is perfectly acceptable for me to analogize about all the things in this country historically which have been legal but have been recognized as wrong in future years.

The court deferred ruling on defendants’ mistrial motion but warned plaintiffs’ counsel that he was proceeding at his own peril and that plaintiffs’ counsel should consider “the possible [ejffect it may have on any appellate court.” The court told plaintiffs’ counsel: “[What] you shouldn’t do in front of the jury is pander.... Shouldn’t pander [to] the jury.” Nonetheless, the court refused to grant a mistrial because of the length of the trial proceedings that had already occurred stating:

We’ve been here 10, 11 months. In this one final argument day, which is the first day, there has been at least two, maybe even three motions for mistrials. It just seems to me that it would be foolish to put ourselves in that position because of whatever reason, whatever behavior, whatever was said, to lose this opportunity to get this case resolved. It’s an unusual case.... And to throw it away at the last minute, after 10, 11 months, because of some comment made or something that’s unforeseen that happens during closing argument, to me, is ludicrous. And I’m concerned. I really am. I don’t think any of us really want it, even though motions have been made. I don’t think we really want that to happen.

Florida courts uniformly condemn the type of pandering which occurred in this case as inflammatory and prejudicial. See Murphy v. Int’l Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000); Johnnides v. Amoco Oil Co., 778 So.2d 443, 444-45 (Fla. 3d DCA 2001). Nullification arguments have absolutely no place in a trial and violate state and federal due process by exposing defendants to liability and punishment based upon lawful conduct. Urbin v. State, 714 So.2d 411, 420 (Fla.1998); see also Harding v. State, 736 So.2d 1230 (Fla. 2d DCA), review denied, 744 So.2d 454 (1999)(defense may not argue jury nullification); United States v. Trujillo, 714 F.2d 102, 106 (jury nullification argument would improperly encourage jurors to violate their oath and apply the law at their own caprice).

The prejudicial impact of the nullification arguments was further compounded by counsel’s racially charged statements. These statements were made to a predominantly African-American jury panel and were clearly directed toward persuading the jury to nullify the law. As this Court has previously emphasized: “It is, of course, highly improper to interject even a reference to, let alone an accusation of racism which is neither justified by the evidence nor relevant to the issues into any part of our judicial system.” Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997) (reversal required where a prosecutor characterized defendants as engaging in conduct that was “divided along racial lines”); see Wallace v. State, 768 So.2d 1247, 1250-51 (Fla. 1st DCA 2000) (“Our system of justice cannot tolerate an attempt to exploit these feelings of racial prejudice to the extent that they may exist among those who serve on juries.”); F.J.W. Enterprises, Inc. v. Johnson, 746 So.2d 1145, 1147 (Fla. 5th DCA 1999); Terrazas v. State, 696 So.2d 1309, 1310 (Fla. 2d DCA 1997); Reynolds v. State, 580 So.2d 254, 256 (Fla. 1st DCA 1991); see also Bird, 255 F.3d at 1150-51 (due process in a civil trial was violated by plaintiffs’ reference in closing argument to “white racism in exploitation of Indians,” where Indians sat on the jury); see also Gen. Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 271-72 (Miss.1999) (plaintiffs’ counsel played the race card by making inflammatory racial arguments to the jury, including assertions that defendant’s conduct victimized primarily African-Americans and the poor).

An appeal to race so fundamentally damages the fairness of a trial, that even in the absence of an objection, a new trial is required in order to maintain the public trust in our system of justice. See Murphy v. Int’l Robotic, 766 So.2d at 1030; see Robinson v. State, 520 So.2d 1 (Fla.1988). Here, plaintiffs’ counsel repeatedly violated this rule and thus a new trial would be required even if no objection had been made.

However, the fact remains that the defendants did object repeatedly, and, although the court sustained some of the objections, it could not unring the bell. See Williams v. State, 715 So.2d 1152, 1153 (Fla. 3d DCA 1998)(reversal required even though objections to counsel’s improper statements were sustained, because “[t]he die was cast — the damage was done”); Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 258-59 (Fla. 1st DCA 1996)(collective import of counsel’s improper arguments required a new trial even though some objections were sustained); Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158 n. 1 (Fla. 5th DCA 1994)(“You can throw a skunk into the jury box and instruct the jurors not to smell it, but it doesn’t do any good.”); see also O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir.1977) (noting cautionary instructions are effective only up to a certain point; judges must realize that after repeated exposure of a jury to prejudicial information, “cautionary instructions will have little, if any, effect in eliminating the prejudicial harm”).

Similarly egregious, plaintiffs’ counsel repeatedly made legally improper arguments to the jury regarding the payment of any award, and personally vouched to the jury that the defendants would not go bankrupt. The prejudice caused by these statements is significant. By suggesting a large award would not bankrupt the defendants and that payments could be made in installments, plaintiffs’ counsel ensured there would be no realistic check on the jury entering a bankrupting award.

This is clearly improper. A defendant’s ability to pay a punitive award is to be measured as of the time of trial. Net worth cannot be based upon speculation regarding the defendant’s future ability to pay. See Cash v. Beltmann North American Co., 900 F.2d 109, 111 n. 3 (7th Cir.1990) (proper measure is net worth at time of trial); Zhadan v. Downtown L.A. Motor Distrib., Inc., 100 Cal.App.3d 821, 161 Cal.Rptr. 225, 236 (1979) (same); Fopay v. Noveroske, 31 Ill.App.3d 182, 334 N.E.2d 79, 94 (1975) (jury may not base punitive damages on prediction of defendant’s future earnings); Bienvenu v. Dudley, 682 So.2d 281, 285 (La.Ct.App.1996) (only “current” financial condition is relevant in determining appropriateness of exemplary damages); Welty v. Heggy, 145 Wis.2d 828, 429 N.W.2d 546, 549 (1988) (usual measure of wealth is net worth at the date of trial); see also Brooks, 707 So.2d at 376 (affirming punitive award where defendant failed to present evidence sufficient to establish his net worth at the time of trial as a basis for comparison); Bould, 349 So.2d at 1181 (reviewing punitive award in comparison with defendant’s net worth at the time of trial).

Yet, plaintiffs counsel repeatedly violated this rule by urging the jury to assume any award would be payable in installments over decades into the future. The improper comments started during opening statements in Phase 2, when plaintiffs’ counsel made an improper speaking objection in the presence of the jury stating:

“That can happen in this case. There can be a payout.”

During direct examination of his own witness, plaintiffs’ counsel asked how much the defendants could afford to pay without going out of business:

“if they had the right to pay out the money over an extended period of time?”

And during cross-examination of defendant Liggett’s CEO, plaintiffs’ counsel asked:

“You wouldn’t go out of business if there was a payout arrangement?”

Continuing this theme through to closing argument, plaintiffs’ counsel urged the jury to base its award on a $118 billion dollar “difference” between what the defendants supposedly offered to pay under a proposed (but never implemented) national settlement — “368 billion” over twenty-five years — and what the defendants did agree to pay in actual settlements with States — “250 billion” over twenty-five years. Settlements based upon twenty-five year payouts have no bearing on the defendants’ current ability to pay. Contrary to plaintiffs’ counsels representations, the defendants were ordered to pay the $145 billion dollar award immediately into the court registry. Clearly the references to “payouts” were designed solely to mislead the jury and inflate the punitive award.

After numerous defense objections, the court held plaintiffs’ counsel in contempt for continuing to make statements referencing extended payouts. However, while acknowledging the impropriety of counsel’s conduct, the court denied the defendants’ request for a mistrial.

The misconduct continued, as plaintiffs’ counsel referred to matters outside the evidence, made derogatory personal remarks about opposing counsel, and expressed his personal opinion to the jury. Plaintiffs’ counsel maligned a defense attorney by name, calling the attorney’s argument to the jury “a fraud.” He expressed his personal opinions about the merits of the case stating the defendants’ position made him grit his teeth and say to himself: “Can anyone buy this?”

Plaintiffs’ counsel further repeatedly expressed his personal opinions about the defendants’ witnesses, making such comments as: “I wanted to punch” one witness; that another witness “wouldn’t know science if he fell on science”; that he was sure another witness “was ashamed to give this answer, but he gave it ... under oath”; and that as to another witness, “I figured, well, this guy hasn’t been prepped on the subject [by counsel], so maybe I’ll get an honest answer”. He told the jury the defendants’ CEO witnesses lied to him under oath during their depositions, and that defendants had engaged in the “longest running con in the history of the world,” and “our kids and grandchildren” will ask “how did you let them get away with it?”

This Court has expressly condemned all of the categories of misconduct plaintiffs’ counsel engaged in here. See, e.g., Johnnides, 778 So.2d at 444 (attacks on integrity of counsel are both contemptible and condemnable); Owens-Corning Fiberglas Corp. v. Crane, 683 So.2d 552, 554-55 (Fla. 3d DCA 1996) (reversal required by derogatory comments concerning opposing counsel; “it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury”); Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736, 737 n. 1 (Fla. 3d DCA 1989) (new trial required because plaintiffs’ counsel made disparaging remarks about the defendant).

We have also held that it is improper for counsel to express personal opinions about a case or comment on matters not in evidence. See Cohen v. Pollack, 674 So.2d 805, 806-07 (Fla. 3d DCA 1996) (an attorney’s personal beliefs or feelings about the case are irrelevant and constitute reversible error); R. Regulating Fla. Bar 4-3.4(e) (a lawyer shall not allude to any matter “that will not be supported by admissible evidence”); see generally Ruiz v. State, 743 So.2d 1, 4 (Fla.1999) (the “role of counsel in closing argument is to assist the jury in analyzing [the] evidence, not to obscure the jury’s view with personal opinion, emotion and non record evidence”).

Again, even though the court sustained objections to some of counsel’s statements, as noted previously, the prejudicial effect was incurable. See Williams v. State, 715 So.2d at 1153 (“The die was cast-the damage was done”); Muhammad, 668 So.2d at 258-59; Walt Disney, 640 So.2d at 1158 n. 1. See, e.g., Maercks, 549 So.2d at 200 (“[w]hether we consider only the remarks as to which the objections were overruled, or the closing argument as a whole, there must be a new trial.”); Del Monte Banana Co. v. Chacon, 466 So.2d 1167, 1175 (Fla. 3d DCA 1985) (the “cumulative impact of plaintiffs counsel’s eom-plained-of actions at trial clearly mandates reversal”).

Enforcement of the settled prohibitions against this type of prejudicial misconduct was especially important in the context of this massive class action against a highly unpopular industry. The cumulative and inherent inflammatory impact of these arguments and conduct is clearly reflected by the verdict. Plaintiffs’ counsel succeeded in inflaming the jury’s passions as evidenced by the astronomical, bankrupting award. In sum, the improper comments of plaintiffs’ counsel further deprived the defendants of due process and a fair trial, thus additionally requiring reversal.

VI. Liggett: Proof of a “Runaway Jury”

The punitive award against defendant Liggett is not supported by the evidence and demonstrates the jury was irreparably prejudiced in entering the grossly excessive $145 billion dollar award. The Phase 1 verdict found all defendants liable, including defendant Liggett Group, Inc. and defendant Brooke Group Holding, Inc. (hereafter collectively referred to as “Lig-gett/Brooke”). However, in the first part of Phase 2, the jury allocated zero fault to Liggett with respect to the non-punitive counts. Liggett/Brooke’s motion to set aside the verdict as inconsistent was denied, and it was held jointly and severally liable for 100% of the compensatory damages award to each of the three named plaintiffs.

Yet, there was no evidence Lig-gett/Brooke had any knowledge about the health effects of smoking prior to this time. Liggett/Brooke was the only company that did not ammoniate the cigarettes it sold. Liggett/Brooke did not participate in the 1950’s industry strategy meetings, did not sign or endorse the Frank statement, and was not involved in the creation of the Tobacco Industry Research Committee. Significantly, none of the class representatives purchased or smoked Lig-gett/Brooke cigarettes.

The verdict as to Liggett/Brooke must be reversed. Not only was there manifestly insufficient evidence to support the judgments in favor of the three named plaintiffs, there was likewise no evidence to support any punitive award, let alone an award that will destroy Liggett/Brooke many times over. The patent impropriety of the verdict against Liggett/Brooke demonstrates the prejudicial impact of the errors at trial which, combined with the improper conduct of counsel and the trial plan, compels reversal as to all the defendants.

Despite the fact that not one of the three plaintiffs ever used a Liggett/Brooke product, the jury was obviously swept along in lemming-like fashion to find all the defendants responsible because they participated in the tobacco industry. This is not the law. Mere participation in the tobacco industry does not destine a corporation to legal suicide upon the shores of bankruptcy.

Here, judg