Philip Morris Gets Widower’s Attorneys’ Fees Trimmed on Appeal

Philip Morris USA Inc. is entitled to get a portion of an opponent’s $2.5 million attorneys’ fee award in a smoking case subtracted to reflect fees already paid by its co-defendant, R.J. Reynolds Tobacco Co., a Florida appeals court ruled.

Allowing a double recovery would go against a fee statute’s requirement of “reasonable” fees, a divided panel of the Florida District Court of Appeal, Fourth District, said Wednesday.

The case will go back to the trial court for a new fee-and-costs determination.

Robert A. Gore Sr. sued Philip Morris and Reynolds following the allegedly smoking-related death of his wife, Gloria H. Gore, according to the court. He twice proposed settlements, including one for $250,000, but the companies rejected them. Gore ultimately obtained $2 million in compensatory damages.

He sought attorneys’ fees and expert expenses under a statute authorizing them in situations where plaintiffs obtain a judgment of at least 25% more than their rejected offers.

Gore requested $5.6 million. Reynolds settled its attorneys’ fees obligation with Gore before the court held a hearing, leaving Philip Morris to litigate the issue.

The trial court awarded less than Gore wanted, concluding his attorneys were owed nearly $2 million for their hours and about $70,000 in expert costs. It denied a setoff in the amount of the Reynolds settlement. With prejudgment interest, the amount came to more than $2.5 million.

Florida’s statute governing setoffs doesn’t apply to attorneys’ fees, the appeals court said, agreeing with the trial court on that point.

But the offer-of-judgment statute, encouraging settlements by providing for fees in some cases that go to trial despite offers, specifies that the awarded fees must be “reasonable,” Judge Mark W. Klingensmith said for the appeals court. And “Florida courts have generally viewed double recoveries and windfalls as unreasonable,” he said.

Judge Edward L. Artau, in a partial dissent, said Philip Morris waived the reasonableness issue. It challenged only “the issues upon which I concur with the majority—the enforceability of the offer of judgment and the trial court’s rejection of its entitlement to a statutory setoff,” he said.

Judge Jeffrey T. Kuntz also served on the panel.

Harris Appeals PA and Gould Cooksey Fennell represented Gore. Arnold & Porter Kaye Scholer LLP and Shook, Hardy & Bacon LLP represented Philip Morris.

The case is Philip Morris USA Inc. v. Gore, 2022 BL 127688, Fla. Dist. Ct. App., 4th Dist., No. 4D20-932, 4/13/22.