Case Caption: R.J. Reynolds Tobacco Company, as Successor By Merger to Lorillard Tobacco Company, and Lorillard, Inc., v. Jevon Gerald as Lawful Successor of the Estate of Lucien Evans England, Sr., and Christian Brown as the Executor of the Estate of Patrice Hale BrownCase Number: SCT-CIV-2019-0049Date: 07/07/2022Author: Hodge, Rhys S. Citation: 2022 VI 14Summary: In consolidated actions brought by Jevon Gerald, as lawful successor of the Estate of Lucien Evans England, Sr. (“Gerald”) and Christian Brown, as the Executor of the Estate of Patrice Hale Brown (“Brown”), the Superior Court did not abuse its discretion in denying a defense motion for a new trial on the basis of improper closing argument by Brown’s attorney. The award of $50 million to Patrice Brown’s estate and $20 million to Christian Brown for a total of $70 million non-economic compensatory damages is grossly excessive and against the weight of the evidence, thus this case is remanded a new trial on the sole issue of noneconomic compensatory damages. The jury’s finding on liability and Brown’s punitive damages award of $12.3 million are affirmed. Under Rule 803(5) evidence allowed under the Recorded Recollection exception may be read into evidence but may be received as an exhibit only if offered by an adverse party, hence it was a violation of the rule to allow the jury to receive the actual physical diary pages when offered by Brown, and if the evidence on remand presents a similar context, the diary pages themselves will be inadmissible after being read into the record. Reynolds’ conduct in this case was extremely reprehensible. In Gerald, the jury awarded $30 million in punitive damages and the recoverable amount of compensatory damages was only $1 million. Under the peculiar facts of this case, the appropriate measure of the harm plus the actual damages for use in the ratio to punitive damages calculation is $1.6 million, which results in a ratio of 18.75:1 ($30 million punitive award to $1.6 million harm); a ratio that exceeds single digits and in this case is constitutionally excessive; that award is reduced to the constitutionally acceptable sum of $14.4 million. The $1 million in recoverable compensatory damages award in Gerald is reasonable and neither party has complained that it is excessive or inadequate. Because § 1451 only applies to actions based on “negligence,” it cannot be read as applying to intentional conduct—as was found in Brown and Gerald—rendering comparative fault inapplicable. The legislature only overruled the traditional common law rule that contributory negligence barred a plaintiff’s recovery and did not overrule the traditional common law rule that contributory negligence does not bar or result in apportionment of damages in an intentional tort claim. In Gerald where the jury returned verdicts on both negligence and intentional tort claims, it is not possible to sever the negligence claim—which can be apportioned for comparative fault—from the intentional tort claims which cannot. Because the claims and corresponding damage awards in Gerald and Brown are unitary, and comparative fault cannot be assigned to intentional torts, the entire award cannot be apportioned. The applicable statutes do not support an award of prejudgment interest in these cases and the Superior Court erred in awarding prejudgment interest as a component of both judgments. Having concluded that the jury awarded grossly excessive compensatory damages in Brown and constitutionally excessive punitive damages in Gerald, the $12.3 million punitive damages award in Brown is affirmed and the $50 million compensatory award to Brown’s estate and $20 million to Christian Brown in Brown are vacated. The case is remanded for a new trial on compensatory damages only in Brown. The $1 million compensatory award in Gerald is affirmed but the punitive damages awarded are reduced from $30 million to $14.4 million and entry of a total judgment of $15.4 million in Gerald is directed. The awards of prejudgment interest are vacated in Brown and Gerald and the denial of apportionment for comparative fault in both cases is affirmed.Attachment: Open Document or Opinion