40 Fla. L. Weekly D2477aTop of Form
Wrongful
death — Product liability — Tobacco — Engle progeny case — Action
against tobacco company alleging causes of action for strict liability,
fraudulent concealment, conspiracy, negligence, and gross negligence arising
out of death from lung cancer caused by decedent’s addiction to cigarettes —
Damages — Trial court erred in denying defendant’s motion for remittitur of
$30 million punitive damages award — Award was excessive in light of $10.5
million compensatory damages award — Even if not unconstitutionally excessive,
remittitur should have been granted where award exceeded amount sought by
counsel for plaintiff and trial court found that there was “no logical or sound
reason” for jury to exceed the amount sought by plaintiff’s counsel — Remand
with directions to grant motion for remittitur and, if defendant does not agree
with remitted amount, to hold new trial on punitive damages — Compensatory
damages — Reduction — Comparative negligence — Trial court did not err in
reducing compensatory damages award under comparative fault statute despite
plaintiff’s argument that comparative fault reduction was barred because jury
found defendant had committed intentional tort of fraudulent concealment —
Waiver — Trial court did not err in finding that plaintiff waived right to
assert intentional tort exception to comparative fault where, although
complaint specifically stated that plaintiff was seeking apportionment of fault
for only negligence claims and not intentional tort claims, plaintiff’s counsel
represented to jury that plaintiff accepted that decedent was partially at
fault for smoking-related illness and death and jury was likely misled that its
award would be reduced by its determination of comparative fault — With
respect to trial court’s alternative finding that intentional tort exception
did not apply to plaintiff’s case because it was a product liability case at
its core based on conduct grounded in negligence, appellate court agrees with
this finding — Appeals — De novo standard of review applies to trial court’s
determination of whether certain conduct qualifies as negligence
death — Product liability — Tobacco — Engle progeny case — Action
against tobacco company alleging causes of action for strict liability,
fraudulent concealment, conspiracy, negligence, and gross negligence arising
out of death from lung cancer caused by decedent’s addiction to cigarettes —
Damages — Trial court erred in denying defendant’s motion for remittitur of
$30 million punitive damages award — Award was excessive in light of $10.5
million compensatory damages award — Even if not unconstitutionally excessive,
remittitur should have been granted where award exceeded amount sought by
counsel for plaintiff and trial court found that there was “no logical or sound
reason” for jury to exceed the amount sought by plaintiff’s counsel — Remand
with directions to grant motion for remittitur and, if defendant does not agree
with remitted amount, to hold new trial on punitive damages — Compensatory
damages — Reduction — Comparative negligence — Trial court did not err in
reducing compensatory damages award under comparative fault statute despite
plaintiff’s argument that comparative fault reduction was barred because jury
found defendant had committed intentional tort of fraudulent concealment —
Waiver — Trial court did not err in finding that plaintiff waived right to
assert intentional tort exception to comparative fault where, although
complaint specifically stated that plaintiff was seeking apportionment of fault
for only negligence claims and not intentional tort claims, plaintiff’s counsel
represented to jury that plaintiff accepted that decedent was partially at
fault for smoking-related illness and death and jury was likely misled that its
award would be reduced by its determination of comparative fault — With
respect to trial court’s alternative finding that intentional tort exception
did not apply to plaintiff’s case because it was a product liability case at
its core based on conduct grounded in negligence, appellate court agrees with
this finding — Appeals — De novo standard of review applies to trial court’s
determination of whether certain conduct qualifies as negligence
R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. JOAN SCHOEFF,
as Personal Representative of the Estate of JAMES EDWARD SCHOEFF, deceased,
Appellee. 4th District. Case No. 4D13-1765. November 4, 2015. Appeal and
cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack B. Tuter, Judge; L.T. Case No. 08-022608 (19). Counsel:
Gordon James, III, and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, and Gregory
G. Katsas, of Jones Day, Washington, D.C., for appellant. John S. Mills and
Courtney Brewer of The Mills Firm, P.A., Tallahassee, Alex Alvarez of The
Alvarez Law Firm, Coral Gables, and Gary M. Paige of Gordon & Doner, Davie,
for appellee.
as Personal Representative of the Estate of JAMES EDWARD SCHOEFF, deceased,
Appellee. 4th District. Case No. 4D13-1765. November 4, 2015. Appeal and
cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack B. Tuter, Judge; L.T. Case No. 08-022608 (19). Counsel:
Gordon James, III, and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, and Gregory
G. Katsas, of Jones Day, Washington, D.C., for appellant. John S. Mills and
Courtney Brewer of The Mills Firm, P.A., Tallahassee, Alex Alvarez of The
Alvarez Law Firm, Coral Gables, and Gary M. Paige of Gordon & Doner, Davie,
for appellee.
(DAMOORGIAN, J.) R.J. Reynolds Tobacco Company (“RJR”)
appeals the final judgment entered in favor of Joan Schoeff Spolzino as
Representative of the estate of her deceased husband, James Schoeff
(“Plaintiff”). RJR raises four issues on appeal. First, it contends that the
trial court erred in denying its motion for a directed verdict because
Plaintiff failed to prove addiction causation. Second, it asserts that certain
comments made by Plaintiff’s counsel during closing necessitate a new trial.
Third, it argues that the court erred in denying its motion to remit the jury’s
compensatory and punitive damages awards. Fourth, it argues that the court’s
application of the Engle1 findings violated its due process
rights. Plaintiff cross-appeals, arguing that the court erroneously reduced the
jury’s compensatory damages award based on Mr. Schoeff’s comparative fault. We
reverse and remand for remittitur of the punitive portion of the judgment, and
affirm in all other respects.
appeals the final judgment entered in favor of Joan Schoeff Spolzino as
Representative of the estate of her deceased husband, James Schoeff
(“Plaintiff”). RJR raises four issues on appeal. First, it contends that the
trial court erred in denying its motion for a directed verdict because
Plaintiff failed to prove addiction causation. Second, it asserts that certain
comments made by Plaintiff’s counsel during closing necessitate a new trial.
Third, it argues that the court erred in denying its motion to remit the jury’s
compensatory and punitive damages awards. Fourth, it argues that the court’s
application of the Engle1 findings violated its due process
rights. Plaintiff cross-appeals, arguing that the court erroneously reduced the
jury’s compensatory damages award based on Mr. Schoeff’s comparative fault. We
reverse and remand for remittitur of the punitive portion of the judgment, and
affirm in all other respects.
Background
a) Pleadings
The instant case is an Engle progeny case. See
Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). Plaintiff filed
suit against RJR2 asserting membership in the Engle class
because her husband died from lung cancer “caused by his addiction to
cigarettes.” In her suit, Plaintiff alleged causes of action for strict
liability, fraud by concealment, conspiracy to commit fraud by concealment,
negligence, and gross negligence. She also admitted that Mr. Schoeff shared
some fault for his smoking-related injuries and represented that she would
“seek apportionment of fault, pursuant to the principles of comparative fault,
on the counts for negligence and strict liability; however not with respect to
the counts constituting intentional torts as pled in this action.”
Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). Plaintiff filed
suit against RJR2 asserting membership in the Engle class
because her husband died from lung cancer “caused by his addiction to
cigarettes.” In her suit, Plaintiff alleged causes of action for strict
liability, fraud by concealment, conspiracy to commit fraud by concealment,
negligence, and gross negligence. She also admitted that Mr. Schoeff shared
some fault for his smoking-related injuries and represented that she would
“seek apportionment of fault, pursuant to the principles of comparative fault,
on the counts for negligence and strict liability; however not with respect to
the counts constituting intentional torts as pled in this action.”
b) The Trial
The case proceeded to trial in two phases in the manner we
approved in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 714 (Fla.
4th DCA 2011). In the first phase, the jury was asked to: 1) determine whether
Mr. Schoeff was a member of the Engle class; 2) if so, whether RJR’s
conduct was the legal cause of his death; and 3) determine damages. The jury
was also asked to determine whether Plaintiff was entitled to punitive damages
if it found against RJR on Plaintiff’s claims for fraudulent concealment or
conspiracy to fraudulently conceal.
approved in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 714 (Fla.
4th DCA 2011). In the first phase, the jury was asked to: 1) determine whether
Mr. Schoeff was a member of the Engle class; 2) if so, whether RJR’s
conduct was the legal cause of his death; and 3) determine damages. The jury
was also asked to determine whether Plaintiff was entitled to punitive damages
if it found against RJR on Plaintiff’s claims for fraudulent concealment or
conspiracy to fraudulently conceal.
After considering the evidence, the jury returned its
verdict, finding that Mr. Schoeff was addicted to nicotine, his addiction was a
legal cause of his lung cancer and death; and that the negligence of RJR as
well as the defective and unreasonably dangerous cigarettes manufactured by RJR
were a legal cause of Mr. Schoeff’s lung cancer and death. It allocated Mr.
Schoeff’s comparative fault for his injuries at 25%. Additionally, the jury
found that Mr. Schoeff detrimentally relied on statements made by RJR which
concealed or omitted material information, and that such reliance was a legal
cause of his cancer and death. Based on these findings, the jury awarded
Plaintiff $10.5 million in compensatory damages and found that punitive damages
were warranted.
verdict, finding that Mr. Schoeff was addicted to nicotine, his addiction was a
legal cause of his lung cancer and death; and that the negligence of RJR as
well as the defective and unreasonably dangerous cigarettes manufactured by RJR
were a legal cause of Mr. Schoeff’s lung cancer and death. It allocated Mr.
Schoeff’s comparative fault for his injuries at 25%. Additionally, the jury
found that Mr. Schoeff detrimentally relied on statements made by RJR which
concealed or omitted material information, and that such reliance was a legal
cause of his cancer and death. Based on these findings, the jury awarded
Plaintiff $10.5 million in compensatory damages and found that punitive damages
were warranted.
The second phase of the trial concerned the proper amount of
punitive damages. During closing arguments in this phase, Plaintiff’s counsel
asked the jury to award Plaintiff $25 million in punitive damages and no more.
Specifically, counsel stated: “you may think that’s too low, but we urge you
not to go above that. Please do not go above 25 million. Do not. She doesn’t
want that. Do not go above that.” Despite Plaintiff’s urging, the jury returned
a verdict assessing $30 million in punitive damages against RJR.
punitive damages. During closing arguments in this phase, Plaintiff’s counsel
asked the jury to award Plaintiff $25 million in punitive damages and no more.
Specifically, counsel stated: “you may think that’s too low, but we urge you
not to go above that. Please do not go above 25 million. Do not. She doesn’t
want that. Do not go above that.” Despite Plaintiff’s urging, the jury returned
a verdict assessing $30 million in punitive damages against RJR.
c) Post-Trial Motions and Rulings
Following the trial, RJR filed a motion asking the court to
reduce the compensatory damages award to reflect the comparative fault assigned
to Mr. Schoeff by the jury. Plaintiff filed a response in opposition arguing
that the comparative fault statute should not apply since the jury found RJR
committed the intentional tort of fraudulent concealment. Additionally, RJR
moved for a new trial on evidentiary grounds. In the alternative, RJR moved for
remittitur of both the compensatory and punitive damages awards, arguing that
they were both excessive and not supported by the evidence.
reduce the compensatory damages award to reflect the comparative fault assigned
to Mr. Schoeff by the jury. Plaintiff filed a response in opposition arguing
that the comparative fault statute should not apply since the jury found RJR
committed the intentional tort of fraudulent concealment. Additionally, RJR
moved for a new trial on evidentiary grounds. In the alternative, RJR moved for
remittitur of both the compensatory and punitive damages awards, arguing that
they were both excessive and not supported by the evidence.
Considering the above pleadings, the trial court granted
RJR’s motion to enter judgment consistent with the jury’s finding on
comparative fault, denied RJR’s motion for a new trial, and denied RJR’s motion
to remit the compensatory and punitive damages awards. In granting RJR’s motion
to reduce the jury’s compensatory award by Mr. Schoeff’s comparative fault, the
court ruled that Plaintiff waived her argument regarding comparative fault
based on representations counsel made to the jury. Alternatively, the court
ruled that even if Plaintiff had not waived her argument, the intentional tort
exception to the comparative fault statute would not apply as Plaintiff’s suit
was a products liability suit at its core. In denying RJR’s motion to remit the
punitive damages award, the court recognized that there was no logical basis
for the jury to award a larger amount than Plaintiff requested, but found that
the jury’s award was “NOT infected by bias, prejudice, passion or any other
sentiment against Defendant.”
RJR’s motion to enter judgment consistent with the jury’s finding on
comparative fault, denied RJR’s motion for a new trial, and denied RJR’s motion
to remit the compensatory and punitive damages awards. In granting RJR’s motion
to reduce the jury’s compensatory award by Mr. Schoeff’s comparative fault, the
court ruled that Plaintiff waived her argument regarding comparative fault
based on representations counsel made to the jury. Alternatively, the court
ruled that even if Plaintiff had not waived her argument, the intentional tort
exception to the comparative fault statute would not apply as Plaintiff’s suit
was a products liability suit at its core. In denying RJR’s motion to remit the
punitive damages award, the court recognized that there was no logical basis
for the jury to award a larger amount than Plaintiff requested, but found that
the jury’s award was “NOT infected by bias, prejudice, passion or any other
sentiment against Defendant.”
In accordance with its above rulings, the court entered
final judgment awarding Plaintiff $7,875,000 in compensatory damages and $30
million in punitive damages, for a total of $37,875,000. This appeal follows.
final judgment awarding Plaintiff $7,875,000 in compensatory damages and $30
million in punitive damages, for a total of $37,875,000. This appeal follows.
Analysis
We affirm the court’s denial of RJR’s motion for directed
verdict, motion for a new trial, and motion to remit the jury’s compensatory
damages award without further comment. We also affirm the court’s application
of the Engle findings pursuant to our decision in Brown and our
supreme court’s decision in Philip Morris USA, Inc. v. Douglas, 110 So.
3d 419 (Fla. 2013). We write only to address the punitive damages award and the
court’s reduction of the compensatory award based on Mr. Schoeff’s comparative
fault.
verdict, motion for a new trial, and motion to remit the jury’s compensatory
damages award without further comment. We also affirm the court’s application
of the Engle findings pursuant to our decision in Brown and our
supreme court’s decision in Philip Morris USA, Inc. v. Douglas, 110 So.
3d 419 (Fla. 2013). We write only to address the punitive damages award and the
court’s reduction of the compensatory award based on Mr. Schoeff’s comparative
fault.
a) Punitive Damages
RJR argues that the court erred in refusing to remit the $30
million punitive damages award because it is unconstitutionally excessive. This
Court reviews a trial court’s order denying a motion for remittitur for an
abuse of discretion. City of Hollywood v. Hogan, 986 So. 2d 634, 647
(Fla. 4th DCA 2008). However, the constitutionality of a punitive damages award
is reviewed de novo. Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67,
81 (Fla. 3d DCA 2013).
million punitive damages award because it is unconstitutionally excessive. This
Court reviews a trial court’s order denying a motion for remittitur for an
abuse of discretion. City of Hollywood v. Hogan, 986 So. 2d 634, 647
(Fla. 4th DCA 2008). However, the constitutionality of a punitive damages award
is reviewed de novo. Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67,
81 (Fla. 3d DCA 2013).
Pursuant to Florida’s remittitur and additur statute, the
trial court has the responsibility to review the amount of an award and
determine if it is excessive or inadequate “in light of the facts and
circumstances which were presented to the trier of fact.” § 768.74(1), Fla.
Stat. (2012). “If the court finds that the amount awarded is excessive or
inadequate, it shall order a remittitur or additur, as the case may be.” § 768.74(2),
Fla. Stat. In making its determination, the trial court is guided by the
following statutory considerations:
trial court has the responsibility to review the amount of an award and
determine if it is excessive or inadequate “in light of the facts and
circumstances which were presented to the trier of fact.” § 768.74(1), Fla.
Stat. (2012). “If the court finds that the amount awarded is excessive or
inadequate, it shall order a remittitur or additur, as the case may be.” § 768.74(2),
Fla. Stat. In making its determination, the trial court is guided by the
following statutory considerations:
(a)
Whether the amount awarded is indicative of prejudice, passion, or corruption
on the part of the trier of fact;
Whether the amount awarded is indicative of prejudice, passion, or corruption
on the part of the trier of fact;
(b)
Whether it appears that the trier of fact ignored the evidence in reaching a
verdict or misconceived the merits of the case relating to the amounts of
damages recoverable;
Whether it appears that the trier of fact ignored the evidence in reaching a
verdict or misconceived the merits of the case relating to the amounts of
damages recoverable;
(c)
Whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation and conjecture;
Whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation and conjecture;
(d)
Whether the amount awarded bears a reasonable relation to the amount of damages
proved and the injury suffered; and
Whether the amount awarded bears a reasonable relation to the amount of damages
proved and the injury suffered; and
(e)
Whether the amount awarded is supported by the evidence and is such that it
could be adduced in a logical manner by reasonable persons.
Whether the amount awarded is supported by the evidence and is such that it
could be adduced in a logical manner by reasonable persons.
§ 768.74(5), Fla. Stat.
“[T]he purpose of punitive damages is not to further
compensate the plaintiff, but to punish the defendant for its wrongful conduct
and to deter similar misconduct by it and other actors in the future.” Owens-Corning
Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The amount of
punitive damages to be awarded is an issue left to the discretion of the jury. Id.
However, the imposition of a punitive damage award is subject to limitations.
compensate the plaintiff, but to punish the defendant for its wrongful conduct
and to deter similar misconduct by it and other actors in the future.” Owens-Corning
Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The amount of
punitive damages to be awarded is an issue left to the discretion of the jury. Id.
However, the imposition of a punitive damage award is subject to limitations.
Under Florida law, the courts evaluate the extent of a
punitive damages award by considering whether: 1) the amount is so excessive as
to be “out of all reasonable proportion” to the conduct; 2) the award bears
some relationship to ability to pay; and 3) there is a reasonable relationship
between compensatory and punitive damages. See R.J. Reynolds Tobacco Co. v.
Townsend, 90 So. 3d 307, 313 (Fla. 1st DCA 2012). As for whether any given
punitive damages award is so excessive as to violate due process, the United
States Supreme Court has identified three guideposts to consider: 1) the degree
of reprehensibility of defendant’s conduct; 2) the ratio between compensatory
and punitive damages; and 3) civil and criminal penalties for the same conduct.
Id. (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562
(1996)). “Although there is no bright-line standard, the Florida Supreme Court
observed in Engle that ‘[s]ingle-digit [ratios] are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution.’ ” Id. at 314 (quoting Engle, 945 So. 2d at
1264-65 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 425 (2003))).
punitive damages award by considering whether: 1) the amount is so excessive as
to be “out of all reasonable proportion” to the conduct; 2) the award bears
some relationship to ability to pay; and 3) there is a reasonable relationship
between compensatory and punitive damages. See R.J. Reynolds Tobacco Co. v.
Townsend, 90 So. 3d 307, 313 (Fla. 1st DCA 2012). As for whether any given
punitive damages award is so excessive as to violate due process, the United
States Supreme Court has identified three guideposts to consider: 1) the degree
of reprehensibility of defendant’s conduct; 2) the ratio between compensatory
and punitive damages; and 3) civil and criminal penalties for the same conduct.
Id. (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562
(1996)). “Although there is no bright-line standard, the Florida Supreme Court
observed in Engle that ‘[s]ingle-digit [ratios] are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution.’ ” Id. at 314 (quoting Engle, 945 So. 2d at
1264-65 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 425 (2003))).
At this juncture in the trajectory of Florida Engle cases,
the appellate cases with the highest affirmed punitive damages awards are R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), and Lorillard
Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013). Applying the
above outlined principles, the Martin court upheld a $25 million
punitive damages award that bore a 7.58 to 1 ratio to the $3.3 million
compensatory damages award based on the tobacco company’s wanton and
reprehensible behavior. 53 So. 3d at On the same considerations, the Alexander
court upheld a $25 million punitive damages award that bore a 2.5 to 1
ratio to a remitted compensatory damages award of $10 million. 123 So. 3d at
This Court followed suit in R.J. Reynolds Tobacco Co. v. Buonomo, 138
So. 3d 1049, 1049, 1052 (Fla. 4th DCA 2013), affirming that the jury’s initial
$25 million punitive damages award (which was subsequently remitted to
$15,705,000) as compared to a $5,235,000 compensatory damages award was not so
excessive as to violate due process.
the appellate cases with the highest affirmed punitive damages awards are R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), and Lorillard
Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013). Applying the
above outlined principles, the Martin court upheld a $25 million
punitive damages award that bore a 7.58 to 1 ratio to the $3.3 million
compensatory damages award based on the tobacco company’s wanton and
reprehensible behavior. 53 So. 3d at On the same considerations, the Alexander
court upheld a $25 million punitive damages award that bore a 2.5 to 1
ratio to a remitted compensatory damages award of $10 million. 123 So. 3d at
This Court followed suit in R.J. Reynolds Tobacco Co. v. Buonomo, 138
So. 3d 1049, 1049, 1052 (Fla. 4th DCA 2013), affirming that the jury’s initial
$25 million punitive damages award (which was subsequently remitted to
$15,705,000) as compared to a $5,235,000 compensatory damages award was not so
excessive as to violate due process.
On the other hand, in Tobacco Co. v. Townsend, 90 So.
3d 307, 314 (Fla. 1st DCA 2012), the court held that a $40.8 million
punitive damages award was excessive in the face of a $10.8 million
compensatory damages award, even though the evidence of the tobacco company’s
bad conduct was the same as that presented in Martin and the ratio
between the punitive and compensatory awards was less than that upheld in Martin.
In doing so, it reasoned that “the $10.8 million compensatory damage award
— which is substantial by any measure — justifies a lower ratio than 3.7 to
1.” Id. at 315-16.
3d 307, 314 (Fla. 1st DCA 2012), the court held that a $40.8 million
punitive damages award was excessive in the face of a $10.8 million
compensatory damages award, even though the evidence of the tobacco company’s
bad conduct was the same as that presented in Martin and the ratio
between the punitive and compensatory awards was less than that upheld in Martin.
In doing so, it reasoned that “the $10.8 million compensatory damage award
— which is substantial by any measure — justifies a lower ratio than 3.7 to
1.” Id. at 315-16.
The award in Plaintiff’s case ($30 million punitive award in
light of $10.5 million compensatory award, a 2.9 to 1 ratio) falls somewhere
between the award affirmed in Alexander ($25 million punitive award in
light of $10 million compensatory award) and the award reversed in Townsend ($40.8
million punitive award in light of $10.8 million compensatory award). In light
of the $10.5 million compensatory damages award, we hold that the $30 million
punitive damages award falls on the excessive side of the spectrum.
light of $10.5 million compensatory award, a 2.9 to 1 ratio) falls somewhere
between the award affirmed in Alexander ($25 million punitive award in
light of $10 million compensatory award) and the award reversed in Townsend ($40.8
million punitive award in light of $10.8 million compensatory award). In light
of the $10.5 million compensatory damages award, we hold that the $30 million
punitive damages award falls on the excessive side of the spectrum.
Additionally, even if the award was not unconstitutionally
excessive, remittitur should have been granted. Plaintiff’s counsel begged the
jury not to award her more than $25 million in punitive damages and the trial
court found that there was “no logical or sound reason for the jury to have
exceeded the award sought by counsel for Plaintiff.” This finding in and of
itself compels remittitur. See § 768.74(5)(e), Fla. Stat. (one of the
factors for consideration on motion for remittitur is whether the award “could
be adduced in a logical manner by reasonable persons”).
excessive, remittitur should have been granted. Plaintiff’s counsel begged the
jury not to award her more than $25 million in punitive damages and the trial
court found that there was “no logical or sound reason for the jury to have
exceeded the award sought by counsel for Plaintiff.” This finding in and of
itself compels remittitur. See § 768.74(5)(e), Fla. Stat. (one of the
factors for consideration on motion for remittitur is whether the award “could
be adduced in a logical manner by reasonable persons”).
Accordingly, we remand to the trial court with directions to
grant RJR’s motion for remittitur, and, if RJR does not agree with the remitted
amount, to hold a new trial on punitive damages. See R.J. Reynolds Tobacco
Co. v. Webb, 130 So. 3d 262, 264 (Fla. 1st DCA 2013) (holding that proper
remedy when trial court improperly denied tobacco company’s motion to remit was
to remand for remittitur, or, if tobacco company did not agree with the
remitted amount, to hold a new trial on damages).
grant RJR’s motion for remittitur, and, if RJR does not agree with the remitted
amount, to hold a new trial on punitive damages. See R.J. Reynolds Tobacco
Co. v. Webb, 130 So. 3d 262, 264 (Fla. 1st DCA 2013) (holding that proper
remedy when trial court improperly denied tobacco company’s motion to remit was
to remand for remittitur, or, if tobacco company did not agree with the
remitted amount, to hold a new trial on damages).
b) Comparative Fault
Plaintiff cross-appeals the trial court’s order reducing the
compensatory damages award based on the jury’s finding that Mr. Schoeff was 25%
at fault for his lung cancer. She asserts that because the jury found RJR
committed the intentional tort of fraudulent concealment, section 768.81(4),
Florida Statutes, barred application of Mr. Schoeff’s comparative fault to
reduce damages. RJR counters that the trial court correctly found Plaintiff
invited the reduction and further, the substance of Plaintiff’s action was a
products liability suit. Thus, RJR maintains that Plaintiff’s damages were
subject to reduction under the comparative fault statute. We agree with RJR.
compensatory damages award based on the jury’s finding that Mr. Schoeff was 25%
at fault for his lung cancer. She asserts that because the jury found RJR
committed the intentional tort of fraudulent concealment, section 768.81(4),
Florida Statutes, barred application of Mr. Schoeff’s comparative fault to
reduce damages. RJR counters that the trial court correctly found Plaintiff
invited the reduction and further, the substance of Plaintiff’s action was a
products liability suit. Thus, RJR maintains that Plaintiff’s damages were
subject to reduction under the comparative fault statute. We agree with RJR.
Sections 768.81(2) and (4), Florida Statutes (1994)3, provide, in pertinent part, that in
“negligence cases,” “any contributory fault chargeable to the claimant
diminishes proportionately the amount awarded as economic and noneconomic
damages for an injury attributable to the claimant’s contributory fault, but
does not bar recovery.” “Negligence cases” include, but are not limited to,
“civil actions for damages based upon a theory of negligence, strict liability,
products liability, professional malpractice whether couched in terms of
contract or tort, or breach of warranty and like theories.” § 768.81(4)(a),
Fla. Stat. “In determining whether a case falls within the term ‘negligence
cases,’ the court shall look to the substance of the action and not the
conclusory terms used by the parties.” § 768.81(4)(a), Fla. Stat. Section
768.81 does not permit the reduction of compensatory damages by plaintiff’s
comparative fault where the suit is based upon an intentional tort (“the
intentional tort exception”). See § 768.81(4)(b) Fla. Stat.
“negligence cases,” “any contributory fault chargeable to the claimant
diminishes proportionately the amount awarded as economic and noneconomic
damages for an injury attributable to the claimant’s contributory fault, but
does not bar recovery.” “Negligence cases” include, but are not limited to,
“civil actions for damages based upon a theory of negligence, strict liability,
products liability, professional malpractice whether couched in terms of
contract or tort, or breach of warranty and like theories.” § 768.81(4)(a),
Fla. Stat. “In determining whether a case falls within the term ‘negligence
cases,’ the court shall look to the substance of the action and not the
conclusory terms used by the parties.” § 768.81(4)(a), Fla. Stat. Section
768.81 does not permit the reduction of compensatory damages by plaintiff’s
comparative fault where the suit is based upon an intentional tort (“the
intentional tort exception”). See § 768.81(4)(b) Fla. Stat.
a) Waiver
As outlined above, in granting RJR’s motion to reduce the
jury’s compensatory damages award by Mr. Schoeff’s comparative fault, the trial
court found that Plaintiff waived any argument regarding the intentional tort
exception. “[A] trial court’s finding of waiver is reviewed for abuse of
discretion.” R.J. Reynolds Tobacco Co. v. Hiott, 129 So.
3d 473, 479 (Fla. 1st DCA 2014).
jury’s compensatory damages award by Mr. Schoeff’s comparative fault, the trial
court found that Plaintiff waived any argument regarding the intentional tort
exception. “[A] trial court’s finding of waiver is reviewed for abuse of
discretion.” R.J. Reynolds Tobacco Co. v. Hiott, 129 So.
3d 473, 479 (Fla. 1st DCA 2014).
The case with the most in depth discussion on waiver is Hiott.
129 So. 3d at 479-82. There, a tobacco plaintiff argued that the trial
court improperly reduced her compensatory damages based on the smoker’s
comparative fault because she prevailed on her intentional tort claims against
the tobacco companies. Id. at 479. The First DCA disagreed, holding that
under the facts of the case, the trial court did not abuse its discretion in
finding that the plaintiff invited the error by misleading the jury. Id. at
481. Specifically, the plaintiff “encouraged the jury, from voir dire through
closing argument, that she accepted that her deceased husband was partially at
fault for his smoking-related illness and death. Thus, she expected the jury to
allocate some fault to her late husband.” Id. Indeed, the jury was
instructed that it “should not make any reduction because of the fault you
charge to [the smoker]. The Court will enter a judgment based on your verdict
and will reduce the total amount of damages by the percentage of fault which
you charge to [the smoker].” Id. However, the plaintiff “failed to
inform the jury that she intended to reserve her right to assert the
inapplicability of comparative fault to any of her claims.” Id. at
480-81. Under the circumstances, the court concluded that the jury was likely
misled to believe that its award would be reduced by its determination of
comparative fault. Id. at 481-82. Thus, the jury may have reached a
different verdict on damages had it known that the tobacco company would bear
the entire amount. See id.; see also Buonomo, 138 So. 3d at 1053
n.3 (holding, without discussion, that any error in the reduction of a tobacco
plaintiff’s compensatory damages award was invited and/or waived by the
plaintiff).
129 So. 3d at 479-82. There, a tobacco plaintiff argued that the trial
court improperly reduced her compensatory damages based on the smoker’s
comparative fault because she prevailed on her intentional tort claims against
the tobacco companies. Id. at 479. The First DCA disagreed, holding that
under the facts of the case, the trial court did not abuse its discretion in
finding that the plaintiff invited the error by misleading the jury. Id. at
481. Specifically, the plaintiff “encouraged the jury, from voir dire through
closing argument, that she accepted that her deceased husband was partially at
fault for his smoking-related illness and death. Thus, she expected the jury to
allocate some fault to her late husband.” Id. Indeed, the jury was
instructed that it “should not make any reduction because of the fault you
charge to [the smoker]. The Court will enter a judgment based on your verdict
and will reduce the total amount of damages by the percentage of fault which
you charge to [the smoker].” Id. However, the plaintiff “failed to
inform the jury that she intended to reserve her right to assert the
inapplicability of comparative fault to any of her claims.” Id. at
480-81. Under the circumstances, the court concluded that the jury was likely
misled to believe that its award would be reduced by its determination of
comparative fault. Id. at 481-82. Thus, the jury may have reached a
different verdict on damages had it known that the tobacco company would bear
the entire amount. See id.; see also Buonomo, 138 So. 3d at 1053
n.3 (holding, without discussion, that any error in the reduction of a tobacco
plaintiff’s compensatory damages award was invited and/or waived by the
plaintiff).
In R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d
849, 851 (Fla. 1st DCA 2013), the same court reached the opposite conclusion
under slightly different facts. There, the First DCA held that the trial court
did not abuse its discretion in finding a tobacco plaintiff did not waive
application of the intentional tort exception. Id. The court based its
conclusion on the facts that: 1) the plaintiff’s “complaint clearly and
specifically sought ‘potential apportionment of fault and damages on all counts
other than those alleging intentional torts;’ ” 2) the plaintiff “never argued
to the jury or the court that the damages for his father’s terminal illness
should be reduced by his portion of fault;” and 3) “the defendants agreed to
the verdict form which listed each cause of action, including the intentional
torts, and requested the jury to indicate whether the defendants had committed
each individual tort or not.” Id.
849, 851 (Fla. 1st DCA 2013), the same court reached the opposite conclusion
under slightly different facts. There, the First DCA held that the trial court
did not abuse its discretion in finding a tobacco plaintiff did not waive
application of the intentional tort exception. Id. The court based its
conclusion on the facts that: 1) the plaintiff’s “complaint clearly and
specifically sought ‘potential apportionment of fault and damages on all counts
other than those alleging intentional torts;’ ” 2) the plaintiff “never argued
to the jury or the court that the damages for his father’s terminal illness
should be reduced by his portion of fault;” and 3) “the defendants agreed to
the verdict form which listed each cause of action, including the intentional
torts, and requested the jury to indicate whether the defendants had committed
each individual tort or not.” Id.
Plaintiff argues that this particular case is factually
analogous to Sury rather than Hiott, and thus the court erred
when it found that Plaintiff waived her intentional tort exception argument. As
it pertains to Plaintiff’s position on comparative fault, the record reflects
the following:
analogous to Sury rather than Hiott, and thus the court erred
when it found that Plaintiff waived her intentional tort exception argument. As
it pertains to Plaintiff’s position on comparative fault, the record reflects
the following:
A. Pleadings
Plaintiff’s complaint stated that: “Plaintiff will seek
apportionment of fault, pursuant to the principles of comparative fault, on the
counts for negligence and strict liability; however not with respect to the
counts constituting intentional torts as pled in this action.”
apportionment of fault, pursuant to the principles of comparative fault, on the
counts for negligence and strict liability; however not with respect to the
counts constituting intentional torts as pled in this action.”
B. Plaintiff’s Representations to the Jury
During voir dire, Plaintiff’s counsel told prospective
jurors: “from the very beginning in this case, when this case was filed, the
plaintiff in this case, Miss Schoeff, on behalf of her husband who’s passed,
has accepted partial responsibility, okay, in combination with the acts of the
defendants.” During opening statements, Plaintiff’s counsel stated: “Then
you’re going to decide what the percentage of responsibility for RJR — if you
find for us on the counts of negligence and strict liability, then we’re going
to apportion responsibility, what percentage of fault is Mr. Schoeff
responsible for and what percentage of fault is R.J. Reynolds responsible for.”
Likewise, Mr. Schoeff’s responsibility was a reoccurring theme in Plaintiff’s
closing — counsel referred to the fact that Mr. Schoeff bore responsibility
for his actions no less than ten times. However, at one point, counsel did
explain that although Plaintiff accepted some responsibility for the negligence
and strict liability claims, the intentional torts were “a different ball
game.” Finally, counsel argued that due to RJR’s lies and deceptive marketing
strategies, the jury should not find Mr. Schoeff responsible at all for his
decision to smoke until at least 1967, when the first Surgeon General’s report
on the harms of smoking came out. Counsel equated this number to 40%. For the
remaining 60% of Mr. Schoeff’s smoking life, counsel urged the jury to find Mr.
Schoeff 25% responsible, averaging out to a total of 15% responsibility
allocated to Mr. Schoeff and 85% to RJR.
jurors: “from the very beginning in this case, when this case was filed, the
plaintiff in this case, Miss Schoeff, on behalf of her husband who’s passed,
has accepted partial responsibility, okay, in combination with the acts of the
defendants.” During opening statements, Plaintiff’s counsel stated: “Then
you’re going to decide what the percentage of responsibility for RJR — if you
find for us on the counts of negligence and strict liability, then we’re going
to apportion responsibility, what percentage of fault is Mr. Schoeff
responsible for and what percentage of fault is R.J. Reynolds responsible for.”
Likewise, Mr. Schoeff’s responsibility was a reoccurring theme in Plaintiff’s
closing — counsel referred to the fact that Mr. Schoeff bore responsibility
for his actions no less than ten times. However, at one point, counsel did
explain that although Plaintiff accepted some responsibility for the negligence
and strict liability claims, the intentional torts were “a different ball
game.” Finally, counsel argued that due to RJR’s lies and deceptive marketing
strategies, the jury should not find Mr. Schoeff responsible at all for his
decision to smoke until at least 1967, when the first Surgeon General’s report
on the harms of smoking came out. Counsel equated this number to 40%. For the
remaining 60% of Mr. Schoeff’s smoking life, counsel urged the jury to find Mr.
Schoeff 25% responsible, averaging out to a total of 15% responsibility
allocated to Mr. Schoeff and 85% to RJR.
C. Jury Instructions
Before retiring, the court instructed the jury as follows:
If your verdict is for R.J. Reynolds on plaintiff’s
negligence and product defect claims, then you will not consider the issue of
comparative fault. If, however, your verdict is for plaintiff on her negligence
or product defect claims, then you will consider the issue of comparative
fault.
negligence and product defect claims, then you will not consider the issue of
comparative fault. If, however, your verdict is for plaintiff on her negligence
or product defect claims, then you will consider the issue of comparative
fault.
In
that event, you must determine and write on the verdict what percentage of
fault James Schoeff’s death you find chargeable to R.J. Reynolds and to James
Schoeff.
that event, you must determine and write on the verdict what percentage of
fault James Schoeff’s death you find chargeable to R.J. Reynolds and to James
Schoeff.
Joan
Schoeff, on behalf of the estate of James Schoeff, has admitted that, on the
claims for negligence and defective product, James Schoeff bears some
percentage of fault and that his fault was a proximate cause, in combination
with the acts of omission of defendants, of his smoking — related lung cancer
and death.
Schoeff, on behalf of the estate of James Schoeff, has admitted that, on the
claims for negligence and defective product, James Schoeff bears some
percentage of fault and that his fault was a proximate cause, in combination
with the acts of omission of defendants, of his smoking — related lung cancer
and death.
In the instruction regarding the jury’s determination of
compensatory damages, the court informed the jury: “In determining the total
amount of any damages sustained by Joan Schoeff, you should not make any
reductions because of the responsibility of James Schoeff.”
compensatory damages, the court informed the jury: “In determining the total
amount of any damages sustained by Joan Schoeff, you should not make any
reductions because of the responsibility of James Schoeff.”
These facts share characteristics with both Sury (no
waiver) and Hiott (waiver). Like in Sury, Plaintiff’s complaint
specifically stated that it was seeking apportionment of fault for only its
negligence claims and not its intentional tort claims. Also like in Sury, the
verdict form listed each cause of action individually. However, these
similarities do not compel the same conclusion reached in Sury because,
unlike in Sury and similar to Hiott, Plaintiff’s counsel argued
to the jury that the damages for Mr. Schoeff’s terminal illness should be
reduced by his portion of the fault and the jury was instructed not to make any
reductions based on Mr. Schoeff’s comparative fault. Although Plaintiff’s
counsel noted that Plaintiff was accepting some responsibility for only her
negligence claims and not her intentional tort claims, counsel also argued that
the jury should consider this concession when coming up with its figure for
comparative fault and should find Mr. Schoeff less at fault due to RJR’s
fraudulent concealment of certain facts. Based on the overall theme of
Plaintiff’s representations to the jury, a reasonable jury would not possibly
understand that its comparative fault determination was going to have no effect
whatsoever on its compensatory damages award. See Philip Morris USA, Inc. v.
Green, 40 Fla. L. Weekly D1809 (Fla. 5th DCA July 31, 2015) (rejecting
tobacco plaintiff’s argument that she did not waive her argument concerning the
intentional tort exception because counsel gave “explicit, tactical directions
encouraging the jury to find [plaintiff] partially at fault and to determine
what percentage of fault was to be shared by each of the parties”).
waiver) and Hiott (waiver). Like in Sury, Plaintiff’s complaint
specifically stated that it was seeking apportionment of fault for only its
negligence claims and not its intentional tort claims. Also like in Sury, the
verdict form listed each cause of action individually. However, these
similarities do not compel the same conclusion reached in Sury because,
unlike in Sury and similar to Hiott, Plaintiff’s counsel argued
to the jury that the damages for Mr. Schoeff’s terminal illness should be
reduced by his portion of the fault and the jury was instructed not to make any
reductions based on Mr. Schoeff’s comparative fault. Although Plaintiff’s
counsel noted that Plaintiff was accepting some responsibility for only her
negligence claims and not her intentional tort claims, counsel also argued that
the jury should consider this concession when coming up with its figure for
comparative fault and should find Mr. Schoeff less at fault due to RJR’s
fraudulent concealment of certain facts. Based on the overall theme of
Plaintiff’s representations to the jury, a reasonable jury would not possibly
understand that its comparative fault determination was going to have no effect
whatsoever on its compensatory damages award. See Philip Morris USA, Inc. v.
Green, 40 Fla. L. Weekly D1809 (Fla. 5th DCA July 31, 2015) (rejecting
tobacco plaintiff’s argument that she did not waive her argument concerning the
intentional tort exception because counsel gave “explicit, tactical directions
encouraging the jury to find [plaintiff] partially at fault and to determine
what percentage of fault was to be shared by each of the parties”).
Under such circumstances, reversing would unfairly allow the
Plaintiff to “have it both ways.” It would be inequitable to allow Plaintiff to
use “the admission that [Mr. Schoeff] was partly at fault as a tactic to secure
an advantage with the jury throughout the trial” and then completely avoid
comparative fault after the verdict. Hiott, 129 So. 3d at 481; see
also Green, 40 Fla L. Weekly D1809. Accordingly, we hold that the trial
court did not abuse its discretion when it found that Plaintiff waived her
intentional tort exception argument.
Plaintiff to “have it both ways.” It would be inequitable to allow Plaintiff to
use “the admission that [Mr. Schoeff] was partly at fault as a tactic to secure
an advantage with the jury throughout the trial” and then completely avoid
comparative fault after the verdict. Hiott, 129 So. 3d at 481; see
also Green, 40 Fla L. Weekly D1809. Accordingly, we hold that the trial
court did not abuse its discretion when it found that Plaintiff waived her
intentional tort exception argument.
b. Applicability of the
Comparative Fault Intentional Tort Exception to this Suit
Comparative Fault Intentional Tort Exception to this Suit
Although we are affirming the trial court’s reduction of the
compensatory damages award by Mr. Schoeff’s comparative fault based on its
finding that Plaintiff waived her argument regarding the application of the
intentional tort exception, we also write to address the trial court’s
alternative finding that the intentional tort exception does not apply to
Plaintiff’s case.
compensatory damages award by Mr. Schoeff’s comparative fault based on its
finding that Plaintiff waived her argument regarding the application of the
intentional tort exception, we also write to address the trial court’s
alternative finding that the intentional tort exception does not apply to
Plaintiff’s case.
As outlined above, Florida’s comparative fault statute
provides: “In determining whether a case falls within the term ‘negligence
cases,’ the court shall look to the substance of the action and not the
conclusory terms used by the parties.” § 768.81(4)(a), Fla. Stat. The seminal
case addressing whether an action is founded in negligence or intentional tort
is Merrill Crossings Associates v. McDonald, 705
So. 2d 560 (Fla. 1997). There, after being shot in the parking lot, a customer
sued Wal-Mart and the owner of the shopping center, alleging negligent failure
to maintain reasonable security. Id. at 561. The defendants sought to
have the shooter placed on the verdict form for purposes of assessing
comparative fault and the trial court refused. Id. On appeal, the
supreme court affirmed this ruling, concluding the substance of the action was
“that [the Wal-Mart customer] was the victim of an intentional tort.” Id.
at 563. The court noted that the statute did not say actions “including an
intentional tort,” rather it said “based upon an intentional tort.” Id. The
court reasoned that this implies “ ‘the necessity to inquire whether the entire
action against or involving multiple parties is founded or constructed on an
intentional tort. In other words, the issue is whether an action comprehending
one or more negligent torts actually has at its core an intentional tort by
someone.’ ” Id. (quoting Slawson v. Fast Food Enters., 671 So. 2d
255, 258 (Fla. 4th DCA 1996)).
provides: “In determining whether a case falls within the term ‘negligence
cases,’ the court shall look to the substance of the action and not the
conclusory terms used by the parties.” § 768.81(4)(a), Fla. Stat. The seminal
case addressing whether an action is founded in negligence or intentional tort
is Merrill Crossings Associates v. McDonald, 705
So. 2d 560 (Fla. 1997). There, after being shot in the parking lot, a customer
sued Wal-Mart and the owner of the shopping center, alleging negligent failure
to maintain reasonable security. Id. at 561. The defendants sought to
have the shooter placed on the verdict form for purposes of assessing
comparative fault and the trial court refused. Id. On appeal, the
supreme court affirmed this ruling, concluding the substance of the action was
“that [the Wal-Mart customer] was the victim of an intentional tort.” Id.
at 563. The court noted that the statute did not say actions “including an
intentional tort,” rather it said “based upon an intentional tort.” Id. The
court reasoned that this implies “ ‘the necessity to inquire whether the entire
action against or involving multiple parties is founded or constructed on an
intentional tort. In other words, the issue is whether an action comprehending
one or more negligent torts actually has at its core an intentional tort by
someone.’ ” Id. (quoting Slawson v. Fast Food Enters., 671 So. 2d
255, 258 (Fla. 4th DCA 1996)).
Merrill Crossings makes it clear that section
768.81 cannot be avoided simply because the action includes an intentional tort
— rather the “entire action” must be “founded on an intentional tort.” Stated
another way, the entire action must have an intentional tort “at its core.”
768.81 cannot be avoided simply because the action includes an intentional tort
— rather the “entire action” must be “founded on an intentional tort.” Stated
another way, the entire action must have an intentional tort “at its core.”
Considering the interplay between section 768.81 and an Engle
progeny suit alleging causes of actions for negligence and intentional
tort, the Sury court came to a decision in accord with the direction of Merrill
Crossings. 118 So. 3d at 852. There, the trial court refused to reduce the
plaintiff’s compensatory damages award by the smoker’s comparative fault based
on its conclusion that the “core” of the plaintiff’s suit was founded in
intentional tort. Id. The First DCA found “no abuse of discretion in the
trial court’s determination that although the plaintiff pled negligence and
strict liability, the additional allegations of the intentional torts and the
proof of affirmative, calculated misrepresentations in the tobacco companies’
advertising and other publications supported the conclusion that this action
‘actually had at its core an intentional tort by someone.’ ” Id.
progeny suit alleging causes of actions for negligence and intentional
tort, the Sury court came to a decision in accord with the direction of Merrill
Crossings. 118 So. 3d at 852. There, the trial court refused to reduce the
plaintiff’s compensatory damages award by the smoker’s comparative fault based
on its conclusion that the “core” of the plaintiff’s suit was founded in
intentional tort. Id. The First DCA found “no abuse of discretion in the
trial court’s determination that although the plaintiff pled negligence and
strict liability, the additional allegations of the intentional torts and the
proof of affirmative, calculated misrepresentations in the tobacco companies’
advertising and other publications supported the conclusion that this action
‘actually had at its core an intentional tort by someone.’ ” Id.
Here, the trial court came to a different conclusion
applying the same “core” analysis outlined in Merrill Crossings. In its
order on post-trial motions, the court ruled that arguing Engle progeny
suits are not founded in negligence and thus are not subject to the comparative
fault statute is “to argue in the theater of the absurd.” It explained:
applying the same “core” analysis outlined in Merrill Crossings. In its
order on post-trial motions, the court ruled that arguing Engle progeny
suits are not founded in negligence and thus are not subject to the comparative
fault statute is “to argue in the theater of the absurd.” It explained:
An
attorney sued ‘Big Tobacco’ in Engle and argued the defendants
negligently designed cigarettes; manipulated the nicotine in cigarettes;
produced advertisement and marketing strategies destined to mislead the public;
and other non-intentional ‘tortuous’ misconduct, specifically sounded in
negligence and product liability.
attorney sued ‘Big Tobacco’ in Engle and argued the defendants
negligently designed cigarettes; manipulated the nicotine in cigarettes;
produced advertisement and marketing strategies destined to mislead the public;
and other non-intentional ‘tortuous’ misconduct, specifically sounded in
negligence and product liability.
Concurrent
with the negligence and strict liability claims plaintiffs brought intentional
tort claims for fraud and misrepresentation which have led to several juries
awarding punitive damages on the intentional tort claims.
with the negligence and strict liability claims plaintiffs brought intentional
tort claims for fraud and misrepresentation which have led to several juries
awarding punitive damages on the intentional tort claims.
We disagree with the Sury court to the extent it
reviewed the trial court’s “core” analysis under the abuse of discretion standard.
Instead, we “review de novo the legal question of whether certain
conduct qualifies as negligence or intentional tort.” Petit-Dos v. Sch. Bd.
of Broward Cnty., 2 So. 3d 1022, 1024 (Fla. 4th DCA 2009). Applying the de
novo standard, we agree with the trial court and hold that at its core,
Plaintiff’s suit is a products liability suit based on conduct grounded in
negligence.
reviewed the trial court’s “core” analysis under the abuse of discretion standard.
Instead, we “review de novo the legal question of whether certain
conduct qualifies as negligence or intentional tort.” Petit-Dos v. Sch. Bd.
of Broward Cnty., 2 So. 3d 1022, 1024 (Fla. 4th DCA 2009). Applying the de
novo standard, we agree with the trial court and hold that at its core,
Plaintiff’s suit is a products liability suit based on conduct grounded in
negligence.
Affirmed in part, reversed in part and remanded. (MAY,
J., concurs. TAYLOR, J., concurs in part and dissents in part with opinion.)
J., concurs. TAYLOR, J., concurs in part and dissents in part with opinion.)
__________________
1Engle v. Liggett Group, Inc., 945
So. 2d 1246 (Fla. 2006).
So. 2d 1246 (Fla. 2006).
2Plaintiff also sued several other
tobacco companies, but all except RJR were dismissed before trial.
tobacco companies, but all except RJR were dismissed before trial.
3The parties dispute which version of
the statute governs: Plaintiff asserts it is the version as amended in 1992
while RJR contends it is the version as amended in 2011. Courts generally have
held that the applicable version of section 768.81 is the version in effect at
the time the cause of action accrued. See Basel v. McFarland & Sons,
Inc., 815 So. 2d 687, 691-96 (Fla. 5th DCA 2002). Plaintiff’s cause of
action accrued in 1994, when Mr. Schoeff was diagnosed with lung cancer. See,
e.g., Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 934
(Fla. 2000). As such, the 1994 version of the statute governs.
the statute governs: Plaintiff asserts it is the version as amended in 1992
while RJR contends it is the version as amended in 2011. Courts generally have
held that the applicable version of section 768.81 is the version in effect at
the time the cause of action accrued. See Basel v. McFarland & Sons,
Inc., 815 So. 2d 687, 691-96 (Fla. 5th DCA 2002). Plaintiff’s cause of
action accrued in 1994, when Mr. Schoeff was diagnosed with lung cancer. See,
e.g., Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 934
(Fla. 2000). As such, the 1994 version of the statute governs.
__________________
(TAYLOR, J., concurring in part and dissenting in part.) I
concur in the majority’s decision affirming the trial court’s denial of R.J.
Reynolds’s motion for directed verdict and motion for new trial. However, I
respectfully disagree with the majority’s reversal of the trial court’s denial
of the tobacco company’s motion for remittitur of punitive damages. I also
disagree with the majority’s affirmance, on cross-appeal, of the trial court’s
reduction of compensatory damages based on comparative fault.
concur in the majority’s decision affirming the trial court’s denial of R.J.
Reynolds’s motion for directed verdict and motion for new trial. However, I
respectfully disagree with the majority’s reversal of the trial court’s denial
of the tobacco company’s motion for remittitur of punitive damages. I also
disagree with the majority’s affirmance, on cross-appeal, of the trial court’s
reduction of compensatory damages based on comparative fault.
The trial court did not abuse its discretion in denying R.J.
Reynolds’s motion for remittitur of the $30 million in punitive damages. The
jury’s award was properly based on the evidence presented and, as the trial
court determined, it was not excessive under Florida law or federal due
process. As our court has recognized in other Engle progeny cases, the
purpose of punitive damages is to punish a defendant’s past wrongful conduct
and deter future misconduct. Philip Morris USA Inc. v. Cohen, 102 So. 3d
11, 16 (Fla. 4th DCA 2012). Here, the record is replete with evidence of the
tobacco company’s continued attempts to discredit scientific research revealing
the potential harm caused by its products, its costly campaign to mislead the
public about the hazards of smoking, and its manipulation of nicotine levels in
cigarettes to make them even more addictive. See Lorillard Tobacco Co. v.
Alexander, 123 So. 3d 67, 79-83 (Fla. 3d DCA 2013) (reviewing a similar
record and finding that the evidence supported an award of $25 million punitive
damages against Lorillard).
Reynolds’s motion for remittitur of the $30 million in punitive damages. The
jury’s award was properly based on the evidence presented and, as the trial
court determined, it was not excessive under Florida law or federal due
process. As our court has recognized in other Engle progeny cases, the
purpose of punitive damages is to punish a defendant’s past wrongful conduct
and deter future misconduct. Philip Morris USA Inc. v. Cohen, 102 So. 3d
11, 16 (Fla. 4th DCA 2012). Here, the record is replete with evidence of the
tobacco company’s continued attempts to discredit scientific research revealing
the potential harm caused by its products, its costly campaign to mislead the
public about the hazards of smoking, and its manipulation of nicotine levels in
cigarettes to make them even more addictive. See Lorillard Tobacco Co. v.
Alexander, 123 So. 3d 67, 79-83 (Fla. 3d DCA 2013) (reviewing a similar
record and finding that the evidence supported an award of $25 million punitive
damages against Lorillard).
Although the trial court was puzzled by the fact that the
jury awarded the plaintiff more than the $25 million requested by plaintiff’s
counsel, the court expressly found that the jury’s award “was not infected by
bias, prejudice, passion or any other sentiment.” Further, we have long held
“that a jury might properly award damages equal to or in excess of those
requested by counsel in closing argument.” Lopez v. Cohen, 406 So. 2d
1253, 1256 (Fla. 4th DCA 1981). No doubt plaintiff’s counsel asked the jury not
to award more than $25 million because this amount has been affirmed by Florida
courts and is thus considered “safe” from reversal on a claim of excessiveness.
But there was nothing illogical about the jury’s decision to punish the tobacco
company in an amount greater than that argued by plaintiff’s counsel. The trial
court’s statement suggesting that there was no reason for the jury to exceed
the award sought by plaintiff’s counsel was inconsistent with our precedent in Lopez
and does not somehow compel a remittitur.
jury awarded the plaintiff more than the $25 million requested by plaintiff’s
counsel, the court expressly found that the jury’s award “was not infected by
bias, prejudice, passion or any other sentiment.” Further, we have long held
“that a jury might properly award damages equal to or in excess of those
requested by counsel in closing argument.” Lopez v. Cohen, 406 So. 2d
1253, 1256 (Fla. 4th DCA 1981). No doubt plaintiff’s counsel asked the jury not
to award more than $25 million because this amount has been affirmed by Florida
courts and is thus considered “safe” from reversal on a claim of excessiveness.
But there was nothing illogical about the jury’s decision to punish the tobacco
company in an amount greater than that argued by plaintiff’s counsel. The trial
court’s statement suggesting that there was no reason for the jury to exceed
the award sought by plaintiff’s counsel was inconsistent with our precedent in Lopez
and does not somehow compel a remittitur.
Likewise, the mere fact that $25 million is the highest
award approved thus far on appeal does not mean that it should forever remain a
cap. The $30 million punitive damages award in this case is only 20% higher
than $25 million and falls within a reasonable range of damages. Furthermore,
the 2.9 to 1 ratio of punitive damages to compensatory damages ($10.5 million)
is lower than that already approved by other Florida courts. See R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1071-72 (Fla. 1st DCA 2010)
(approving a 7.58 to 1 ratio); Owens-Corning Fiberglas v. Ballard, 749
So. 2d 483 (Fla. 1999) (upholding punitive damages award in an asbestos
insulation case that was nearly 18 times the compensatory damages award).
Notably, there are no Engle progeny cases suggesting that a $30 million
punitive damages award is excessive. In light of the historical use of treble
damages as a punitive remedy, I cannot conclude that the 2.9 to 1 ratio in this
case is excessive. The $30 million punitive damages award was within
constitutional limits, was supported by the evidence, and was an amount that
could be adduced in a logical manner by reasonable persons. I would affirm the
trial court’s denial of R.J. Reynolds’s motion for remittitur of the punitive
damages award.
award approved thus far on appeal does not mean that it should forever remain a
cap. The $30 million punitive damages award in this case is only 20% higher
than $25 million and falls within a reasonable range of damages. Furthermore,
the 2.9 to 1 ratio of punitive damages to compensatory damages ($10.5 million)
is lower than that already approved by other Florida courts. See R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1071-72 (Fla. 1st DCA 2010)
(approving a 7.58 to 1 ratio); Owens-Corning Fiberglas v. Ballard, 749
So. 2d 483 (Fla. 1999) (upholding punitive damages award in an asbestos
insulation case that was nearly 18 times the compensatory damages award).
Notably, there are no Engle progeny cases suggesting that a $30 million
punitive damages award is excessive. In light of the historical use of treble
damages as a punitive remedy, I cannot conclude that the 2.9 to 1 ratio in this
case is excessive. The $30 million punitive damages award was within
constitutional limits, was supported by the evidence, and was an amount that
could be adduced in a logical manner by reasonable persons. I would affirm the
trial court’s denial of R.J. Reynolds’s motion for remittitur of the punitive
damages award.
I would reverse, however, the trial court’s reduction of the
plaintiff’s compensatory damages based on the decedent’s comparative fault. Our
comparative fault statute provides an exception for intentional tort claims,
and although a products liability claim was included in the complaint, this
lawsuit, when viewed in its entirely, essentially alleges intentional
misconduct by the tobacco company. As the First District found in R.J.
Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), the
“core” of Engle progeny cases is intentional misconduct. The gravamen of
the charge is that the tobacco company intentionally designed its products in a
defective manner and pursued a callous and intentional course of tortious
conduct by fraudulent concealment. I therefore disagree with the majority’s
conclusion that this lawsuit is based on conduct grounded in negligence. But
like the majority, I would use a de novo standard, instead of an abuse of
discretion standard, in reviewing the trial court’s “core” determination and
find that the “core” of Engle progeny actions is intentional misconduct
as a matter of law.
plaintiff’s compensatory damages based on the decedent’s comparative fault. Our
comparative fault statute provides an exception for intentional tort claims,
and although a products liability claim was included in the complaint, this
lawsuit, when viewed in its entirely, essentially alleges intentional
misconduct by the tobacco company. As the First District found in R.J.
Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), the
“core” of Engle progeny cases is intentional misconduct. The gravamen of
the charge is that the tobacco company intentionally designed its products in a
defective manner and pursued a callous and intentional course of tortious
conduct by fraudulent concealment. I therefore disagree with the majority’s
conclusion that this lawsuit is based on conduct grounded in negligence. But
like the majority, I would use a de novo standard, instead of an abuse of
discretion standard, in reviewing the trial court’s “core” determination and
find that the “core” of Engle progeny actions is intentional misconduct
as a matter of law.
Moreover, on the waiver issue, the record does not support
the trial court’s finding that the plaintiff waived the intentional tort
exception to the comparative fault statute. The facts in this case are more
like those in Sury, where the First District found no waiver. Here, the
plaintiff made it clear in her complaint and in both opening statement and
closing argument to the jury that her admission that the decedent bore some
responsibility applied only to the negligence and strict liability claims and
not to the intentional tort claims. Further, the trial court told the jury at
the beginning of the trial that the plaintiff sought apportionment only as to
the negligence and strict liability claims and not as to the intentional tort
claims, and later instructed the jury that the plaintiff “admitted that on the
claims for negligence and defective product, [the decedent] bears some
percentage of fault and that his fault was a proximate cause, in combination
with the acts of omission of the defendants, of his smoking-related lung cancer
and death.” The trial court also instructed the jury not to make any reductions
in the amount of damages based on the decedent’s fault, but gave no indication
that it would reduce the damage award by comparative fault. In addition, to
avoid a claim of waiver, the plaintiff had the trial court change the order of
questions on the verdict form so comparative fault came before the intentional
tort liability questions. In sum, the record does not show that plaintiff did
anything to invite the court to apply comparative fault to her intentional tort
claims.
the trial court’s finding that the plaintiff waived the intentional tort
exception to the comparative fault statute. The facts in this case are more
like those in Sury, where the First District found no waiver. Here, the
plaintiff made it clear in her complaint and in both opening statement and
closing argument to the jury that her admission that the decedent bore some
responsibility applied only to the negligence and strict liability claims and
not to the intentional tort claims. Further, the trial court told the jury at
the beginning of the trial that the plaintiff sought apportionment only as to
the negligence and strict liability claims and not as to the intentional tort
claims, and later instructed the jury that the plaintiff “admitted that on the
claims for negligence and defective product, [the decedent] bears some
percentage of fault and that his fault was a proximate cause, in combination
with the acts of omission of the defendants, of his smoking-related lung cancer
and death.” The trial court also instructed the jury not to make any reductions
in the amount of damages based on the decedent’s fault, but gave no indication
that it would reduce the damage award by comparative fault. In addition, to
avoid a claim of waiver, the plaintiff had the trial court change the order of
questions on the verdict form so comparative fault came before the intentional
tort liability questions. In sum, the record does not show that plaintiff did
anything to invite the court to apply comparative fault to her intentional tort
claims.
For the above reasons, I would reverse the trial court’s
post-trial order on comparative fault and remand for entry of an amended
judgment awarding plaintiff the full compensatory damages found by the jury. I
would affirm in all other respects.
post-trial order on comparative fault and remand for entry of an amended
judgment awarding plaintiff the full compensatory damages found by the jury. I
would affirm in all other respects.