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IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT, STATE OF FLORIDA
R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Case No.: 4D16-430 L.T. No.: 08-CV-019620 (19) ALAN KONZELMAN, as personal representative of the estate of ELEANOR KONZELMAN, Appellee/Cross-Appellant.
ON APPEAL FROM THE CIRCUIT COURT, SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
ANSWER/CROSS-INITIAL BRIEF OF ALAN KONZELMAN
Eric S. Rosen [email protected] Kelley Uustal, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, Florida 33316
John S. Mills [email protected] Courtney Brewer [email protected] [email protected] (secondary) The Mills Firm, P.A. 325 North Calhoun Street Tallahassee, Florida 32301
Attorneys for Appellee/Cross-Appellant
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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ........................................................................................ iii
STATEMENT OF THE CASE AND OF THE FACTS ........................................... 1
SUMMARY OF ARGUMENT ...............................................................................10
ARGUMENT ON MAIN APPEAL ........................................................................14
I. The 1999 Amendments to Section 768.73 Do Not Prohibit Plaintiff From Recovering Punitive Damages. ...................................14
A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date......................................................................14
B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event. ................................................................28
II. The Trial Court Reasonably Upheld the Jury’s Award of Non-Economic Damages. ............................................................................34
A. The Award Was Not Excessive. ...............................................35
B. Evidence of the Number of Deaths Caused by Smoking Had No Relevance to or Impact on the Non-Economic Damage Award. ........................................................................44
III. Reynolds Only Seeks to “Preserve” Its Undeveloped “Constitutional Claims.” .....................................................................46
ARGUMENT ON CROSS-APPEAL ......................................................................47
IV. The Trial Court Erred in Reducing Compensatory Damages by Comparative Fault Because Plaintiff Prevailed on His Intentional Tort Claims. ......................................................................47
CONCLUSION ........................................................................................................49
CERTIFICATE OF SERVICE ................................................................................50
ii
CERTIFICATE OF COMPLIANCE .......................................................................51
iii
TABLE OF CITATIONS
CASES
Abram v. State, Dep’t of Health, Bd. of Med., 13 So. 3d 85 (Fla. 4th DCA 2009) ................................................................. 14 Aills v. Boemi, 41 So. 3d 1022 (Fla. 2d DCA 2010) ........................................................ 38, 42 Alamo Rent-a-Car, Inc. v. Clay, 586 So. 2d 394 (Fla. 3d DCA 1991) .............................................................. 39 Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) .............................................................. 16, 17, 23 Atlas Props., Inc. v. Didich, 226 So. 2d 684 (Fla. 1969) ............................................................................ 21 Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999) ............................................................. 47 Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977) .......................................................................... 39 Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662 (Fla. 1955) .............................................................................. 40 Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013) ................................................................ 17, 20, 26 Cardona v. Gutierrez, 562 So. 2d 766 (Fla. 4th DCA 1990) ............................................................. 37 Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000) ............................................................................ 46 Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla. 1988) ............................................................................ 27
iv
Citrus Cty. v. McQuillin, 840 So. 2d 343 (Fla. 5th DCA 2003) ............................................................. 40 City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961) ............................................................................ 23 Conner v. Cone, 235 So. 2d 492 (Fla. 1970) ............................................................................ 31 Coolen v. State, 696 So. 2d 738 (Fla. 1997) ...................................................................... 44-45 Dyes v. Spick, 606 So. 2d 700 (Fla. 1st DCA 1992) ............................................................. 40 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006) ............................................................................ 1 Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014) ...................................................................... 31, 32 Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209 (Fla. 4th DCA 2017) ........................................................... 28 Fla. Dep’t of Agric. & Cons. Servs. v. Mendez, 98 So. 3d 604 (Fla. 4th DCA 2012) ............................................................... 46 Fulton Cty. Adm’r v. Sullivan, 753 So. 2d 549 (Fla. 1999) ............................................................................ 26 Glaze v. Worley, 157 So. 3d 552 (Fla. 1st DCA 2015) ............................................................. 16 Gonzalez v. Dep’t of Health, 124 So. 3d 449 (Fla. 1st DCA 2013) ............................................................. 16 Gov’t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla. 1995) ............................................................................ 20
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Hall v. U.S. Bank Nat’l Ass’n, 171 So. 3d 830 (Fla. 4th DCA 2015) ............................................................. 16 Hawk v. Seaboard Sys. R.R., Inc., 547 So. 2d 669 (Fla. 2d DCA 1989) .............................................................. 42 In re Holder, 945 So. 2d 1130 (Fla. 2006) .......................................................................... 28 Int’l Union of Operating Eng’rs, Local No. 675 v. Lassitter, 295 So. 2d 634 (Fla. 4th DCA 1974) ............................................................. 43 Jones v. Alayon, 162 So. 3d 360 (Fla. 4th DCA 2015) ............................................................. 34 Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254 (Fla. 5th DCA 2010) ............................................................. 27 Lopez v. Cohen, 406 So. 2d 1253 (Fla. 4th DCA 1981) ........................................................... 41 Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013) .........................................................passim Martin v. United Sec. Servs., Inc., 314 So. 2d 765 (Fla. 1975) ...................................................................... 21, 24 MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129 (Fla. 3d DCA 2000) ............................................................ 43 McKibben v. Malloy, 293 So. 2d 48 (Fla. 1974) .............................................................................. 22 Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) ............................................................................ 48 Meyer v. Thompson, 861 So. 2d 1256 (Fla. 4th DCA 2003) ........................................................... 48
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Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994) ........................................................... 21 Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) ................................................................ 26 Nordt v. Wenck¸ 653 So. 2d 450 (Fla. 3d DCA 1995) .............................................................. 43 Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ........................................................passim Philip Morris USA Inc. v. Cohen, No. SC13-35, 2016 WL 375143 (Fla. Jan. 29, 2016) .............................. 43, 44 Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36 (Fla. 3d DCA 2015) ................................................................ 41 Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013) ................................................................ 46, 47, 49 Philip Morris USA Inc. v. McKeever, 207 So. 3d 907 (Fla. 4th DCA 2017) ............................................................. 44 Philip Morris USA v. Williams, 549 U.S. 346 (2007)..................................................................... 30, 31, 32, 34 R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-4197, 2017 WL 729817 (Fla. 1st DCA Feb. 24, 2017) .......... 17, 18 R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013) ....................................................passim R.J. Reynolds Tobacco Co. v. Buonomo, Nos. SC14-81 & SC14-83, 2016 WL 374082 (Fla. Jan. 26, 2016) ............... 15 R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016) ............................................................. 47
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R.J. Reynolds Tobacco Co. v. Evers, No. 2D16-1603, 2017 WL 4077870 (Fla. 2d DCA Sept. 15, 2017) ............. 18 R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) ............................................................. 49 R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) ......................................................passim R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012) ................................................... 37, 38, 40 R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) ......................................................... 42, 43 Rudy’s Glass Constr. Co. v. Robins, 427 So. 2d 1051 (Fla. 3d DCA 1983) ............................................................ 41 Shere v. State, 742 So. 2d 215 (Fla. 1999) ............................................................................ 47 Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) .......................................................................... 25 St. John v. Coisman, 799 So. 2d 1110 (Fla. 5th DCA 2001) ..................................................... 16-17 St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000) ............................................................................ 33 State v. Robinson, 873 So. 2d 1205 (Fla. 2004) .......................................................................... 31 Tobias v. Osorio, 681 So. 2d 905 (Fla. 4th DCA 1996) ............................................................. 39 Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002) ............................................................................ 27
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Valiant Ins. Co. v. Webster, 567 So. 2d 408 (Fla. 1990) ...................................................................... 20, 27 Variety Children’s Hosp. v. Perkins, 445 So. 2d 1010 (Fla. 1983) .......................................................................... 20 W.R. Grace & Co. v. Waters, 638 So. 2d 502 (Fla. 1994) ................................................................ 15, 31, 33
STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES OF COURT
§ 768.17, Fla. Stat. ............................................................................................. 20, 23 § 768.21(2), Fla. Stat. (2010) ................................................................................... 25 § 768.73, Fla. Stat. ............................................................................................passim § 768.73(1)(a)1, Fla. Stat. ........................................................................................ 16 § 768.73(2), Fla. Stat. ........................................................................................passim § 768.73(2)(a), Fla. Stat. .......................................................................................... 15 § 768.73(2)(b), Fla. Stat. ........................................................................ 11, 15, 30, 32 § 768.81, Fla. Stat. ............................................................................................. 19, 48 § 768.81(4), Fla. Stat. (1995) ................................................................................... 47 Ch. 90-14, § 3, Laws of Fla. .................................................................................... 22 Ch. 99-225, Laws of Fla. (the “1999 Act”) ............................................................. 14 Ch. 99-225, § 23, Laws of Fla. ................................................................................ 14 Ch. 99-225, § 35, Laws of Fla. ................................................................................ 32
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SECONDARY SOURCES Fla. HB 1067 (2015) ................................................................................................ 24 Fla. SB 978 (2015) ................................................................................................... 24 Mary Ellen Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo, Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.), http://www.tampabay.com/blogs/the-buzz-florida-politics/bill-to-shield-tobacco-industry-from-damages-in-engle-lawsuits-in-limbo/2222608 ................................. 24
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STATEMENT OF THE CASE AND OF THE FACTS
In this Engle progeny case, R.J. Reynolds Tobacco Company appeals a
judgment entered in favor of Alan Konzelman, as personal representative of the
estate of his late wife, Eleanor “Elaine” Konzelman (“Plaintiff”).1 Reynolds claims
the trial court erred in (I) refusing to apply the 1999 amendments to section 768.73,
Florida Statutes, which it contends bar Plaintiff from recovering any punitive
damages, and (II) denying a remittitur or new trial on the amount of non-economic
damages, which it contends was excessive. It also asserts that it “preserves” some
unelaborated “constitutional claims regarding the use of the Engle findings.”
Plaintiff cross-appeals the trial court’s decision to reduce compensatory damages
by Elaine’s comparative fault.
Born in 1930, Elaine smoked for more than 40 years, quitting only after she
was intubated in the hospital due to breathing troubles and diagnosed with chronic
obstructive pulmonary disorder (COPD) in 1995. (T:1784, 2209-12, 2519.) At the
time of her diagnosis, she had developed a serious cough and been experiencing
shortness of breath and wheezing for two years. (T:2234-39.) Consistent with the
supreme court’s direction in Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1277
1 First names are used to refer to the Konzelmans individually.
2
(Fla. 2006), Elaine filed her initial complaint alleging claims for negligence, strict
liability, fraudulent concealment, and conspiracy in 2007. (SR:87-98.)
Elaine’s COPD got progressively worse and eventually killed her in 2010
(T:2287, 2552.) Alan was substituted as personal representative for Elaine’s estate
and sought to amend the complaint accordingly, seeking wrongful death damages
or, alternatively, survival damages from Elaine’s personal injury. (R:1, 9-10.) The
amended complaint was otherwise materially identical to the original complaint.
(R:4-11.) Reynolds and its codefendant (who was later dismissed) opposed the
amendment, contending that the wrongful death action was distinct from Elaine’s
personal injury action, requiring Plaintiff to now bring a separate action. (R:28-31.)
The trial court granted Plaintiff’s motion. (R:104.)
Plaintiff thereafter sought to amend the complaint for leave to seek punitive
damages. (R:564-79, 586-638.) Reynolds opposed, but did not claim that punitive
damages were barred under section 768.73, Florida Statutes. (R:701-21.) The trial
court granted Plaintiff’s motion for leave to add a claim for punitive damages on
the intentional torts only, based on then-existing law. (R:867.)
Nearly nine months later and just a month before trial started, Reynolds filed
a notice arguing that section 768.73, Florida Statutes, barred Plaintiff from
obtaining punitive damages because Elaine died in 2010, requiring application of
the post-1999 version of the punitive damages statute. (R:4322-39.) In response,
3
Plaintiff adopted the response from another Engle progeny case in which this exact
same argument was made and rejected. (R:7861-7971; SR:100-120.) Plaintiff
noted therein that under Reynolds’s argument, a smoker who sustained injuries in
the class period of the early 1990s would have the right to seek punitive damages
only if tobacco’s conduct had not killed him or her. (R:7868.) Such an
interpretation would be contrary to the express purpose of the wrongful death
statute and would deprive plaintiffs of their vested, substantive rights to punitive
damages. (R:7867.)
The trial court concluded that Plaintiff’s punitive damages claim was not
barred. (R:11,043-45.) The trial commenced that same day, and Reynolds moved
for reconsideration on the issue two and a half weeks later. (R:11,138-47.) Plaintiff
responded in opposition (R:11,263-72) and filed transcripts from the previous
Engle progeny case on this issue (R:11,277-11,336). The trial court asked both
sides to fully brief the issue. (R:11,608-09; T:3387.) But given that the First and
Second District Courts of Appeal were considering the same question and that the
trial in this case was already well under way, the trial court deferred its decision
until after the trial concluded. (R:11,608-09; T:3387.)
The jury heard argument and evidence about the impact of Elaine’s sickness
and death on Alan. Alan and Elaine had been married for 29 years at the time of
her death. They met in Hawaii in 1981, a chance encounter at the jewelry shop
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where Elaine worked. (T:2271-72.) They hit it off, travelling together and staying
in contact until they were married at the end of 1982, when Elaine moved to Alan’s
home in Florida. (T:2273-77.)
Alan was in Hawaii when he met Elaine because he worked as an engineer
on merchant ships, a career that spanned some 61 years. (T:2267-68.) The job
required lots of travel throughout their marriage. (T:2269.) A tour was about 50-60
days, so Alan would be gone for that block of time and then home for a similar
period; he estimated he was gone from home about half the time. (T:2280, 2339.)
When he was not out to sea, he was off work completely, allowing the couple to
spend all his down time together. (T:2269, 2549.)
The couple enjoyed each other’s company “very much,” were affectionate,
and spent a lot of time together travelling or sailing their boat throughout their
nearly-three decade marriage. (T:1967.) Alan, “a man of few words,” told the jury
they had a lot of fun together. (T:2280, 2557.) One of Elaine’s daughters,2 Sandra
Mattson, told the jury that the couple loved each other very much and that Alan
cared deeply for Elaine. (T:2549.) Elaine was very active and her health was
excellent until and even after her COPD diagnosis; the couple was even able to
2 Both Alan and Elaine had been previously married. (T:1917, 2271.) The
father of Elaine’s children was her first husband. (T:2515-17.)
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travel to Venice and the Galapagos Islands together after 1995. (T:2281, 2285-86,
2536.)
Starting around the early 2000s, though, their active life came to a halt when
Elaine started to lose energy. (T:2287.) She had to use oxygen to help her breathe
by 2002. (T:3173.) Eventually, she was confined to a wheelchair because she had
trouble standing. (T:2287.) Alan had to help her get in and out of bed. (T:2287.)
Alan was still working to support the couple throughout this period, so
Sandra would come to Florida to help take care of her mother when Alan had to be
away for work. (T:2551.) Sandra noted that “[Alan] was conflicted … because he
had to go to work, but he wanted to stay with [Elaine], too.” (T:2557.) When Alan
and Sandra were both working, Elaine would stay in assisted living facilities.
(T:2289, 2341, 2551.) This reality made Alan feel “helpless,” but he monitored the
facilities carefully; the testimony at trial was supported by various medical records
and directives reflecting his presence and continuous involvement in her care.
(T:2289, 2358-60; e.g., Ex. R33:1339, 1342, 2654, 2820, 3157, 3502, 4148, 4322,
5000, 5157, 5248, 5576-77.) Indeed, when Alan was not working, he was with
Elaine 24 hours a day. (T:2554.)
3 Citations to “Ex. R3” refers to volume 3 of the trial exhibits transmitted to
this Court on September 18, 2017. The page numbers refer to the PDF pagination.
6
In 2008, Elaine spent some time in California at Sandra’s insistence.
(T:2614-15.) But Elaine wanted to return home, so Alan and Sandra rented an RV
to transport her back to Florida. (T:2551-52.) Her health continued to deteriorate
until she could not even get out of bed. (T:2289-90.) She was on oxygen 24 hours a
day and had to stay in assisted living facilities and eventually hospice even when
Alan was not out to sea. (T:2290.) He visited her daily and would take her to
dinner when she was capable. (T:2290, 2553-54, 2622-23.) The couple was “still
really close in the way that they spoke with each other and loved each other.”
(T:2554.)
Sandra explained that the illness took a toll on Alan’s health “and it became
like too much, too much to handle almost.” (T:2554.) Alan required heart surgery
in late 2009-early 2010, so Elaine moved back to California near her daughter,
staying in an assisted living facility there. (T:2291, 2552.) As soon as his health
permitted him to, Alan joined them in California and was at Elaine’s bedside on
the day she passed away in March 2010. (T:2291, 2556.) Elaine had requested to
have her body cremated and that her “ashes be returned to Alan and scattered out
to sea with Alan’s.” (Ex. R3:3289.)
Alan testified that he still loves and misses Elaine. (T:2292.) Sandra thought
that the loss had “devastated” Alan, finding “just no words to even describe what
the man’s gone through with his wife.” (T:2557.) His health and finances declined
7
as he struggled to care for Elaine and dealt with the conflicting pressures of
needing to work to support his wife and wanting to stay by her side. (T:2557.)
The jurors heard about how Alan had “reconnected” (Init. Br. 7-8) and taken
trips with a woman Alan met before he and Elaine were married. (T:2351.) They
also learned that Alan did not reach out to this woman until a year and a half after
Elaine’s death and that the reconnection fizzled, as the two had not spoken since
2014. (T:2356, 3315.)
Before closing argument, the jury was instructed that non-economic
damages should compensate Alan for the loss of Elaine as well as his mental pain
and suffering due to Elaine’s injury and death, but should not be used to punish
Reynolds. (T:3415-16.) In closing argument on the appropriate amount of non-
economic damages, Plaintiff’s counsel asked for $5 million for Alan’s “substantial
loss,” but told the jury: “This is a suggestion, you can go higher, you can go lower,
it’s just a suggestion … .” (T:3486-87.) Plaintiff also argued in closing that if the
jury attributed any fault to Elaine, it should be 10% to Reynolds’s 90%. (T:3483-
84.) In its closing, Reynolds suggested that the $5 million request was suspect
because it seemed like Alan was not around very much and even implied that Alan
had lied to Elaine about his work in 2008 and 2009 or had been involved with
someone else prior to Elaine’s death. (T:3582-92.) Reynolds did not suggest any
amount it would deem appropriate for Alan’s damages.
8
After a nearly three-week Phase I trial, the jury concluded Elaine was an
Engle class member, that Plaintiff’s claims were not barred by the statute of
limitations, and that Reynolds was liable for its intentional misconduct. (R:11,550-
51.) It awarded Plaintiff’s requested $295,000 in medical expenses. (R:11,552.) It
awarded Plaintiff more than requested ($8.5 million) in non-economic
compensatory damages, but also concluded Elaine was more at fault (15%) than
counsel had suggested. (R:11,551-52.) Finally, the jury determined Plaintiff was
entitled to punitive damages. (R:11,552.) After Phase II, the jury awarded Plaintiff
$20 million in punitive damages. (T:3835.)
Following the jury’s verdict, Reynolds filed a brief and reply in support of
the application of section 768.73(2), asserting that Plaintiff’s claims did not accrue
until Elaine died in 2010. (R:11,610-29, 11,936-46.) Plaintiff filed a brief in
opposition to the statute’s application, raising the same arguments he makes herein.
(R:11,844-56.) Following a hearing (SR:1-86), the trial court agreed with Plaintiff
and denied Reynolds’s motion to bar punitive damages in this case, citing this
Court’s opinion in R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla.
4th DCA 2013).(R:11,992.) Similarly, Reynolds’s motion for a directed verdict on
the punitive damages claim was denied. (R:11,206-18, 11,650, 11,992.)
Reynolds also sought a new trial on non-economic damages or a
“substantial” remittitur, asserting these damages were “grossly excessive.”
9
(R:11,724-34.) It did not assert that the verdict was infected by the evidence
regarding the number of deaths caused by smoking, although it did raise that as a
separate evidentiary issue. (R:11,723-24, 11,731-32.) Plaintiff responded,
documenting the evidence that showed Alan and Elaine had a “special, close, and
loving relationship” that was ended by Elaine’s death following years of Alan
having to endure “watching his wife suffer and ultimately die from a horrible and
debilitating disease.” (R:11,896-11,906.)
Although the trial court held a hearing and gave Reynolds a chance to argue
all points in its post-trial motions, the only issue Reynolds addressed was the
application of the punitive damages statute. (SR:3-78.) Reynolds “rest[ed] on the
papers” and only briefly touched on its remittitur argument, asserting:
And then the remittitur argument that we have here with $8.5 million, which is, of course, a lot more than what plaintiff suggested. Of course, he said they can go higher, they can go lower, but point is I think it’s sufficiently briefed. If the Court has questions about it, I’m happy to present argument on those issues as well, your honor.
(SR:79-80.) The trial court denied Reynolds’s motion. (R:11,992.)
Though cognizant that the trial court was bound to follow this Court’s
decision in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA
2015), Plaintiff asked that the jury be told that the trial court would not reduce the
compensatory damages by the jury’s comparative fault findings if the jury found
for Plaintiff on the intentional tort claims. (R:11,169; T:2754.) The trial court noted
10
Plaintiff’s objection but denied his request. (T:2754.) The trial court reduced the
judgment accordingly, awarding Plaintiff $7,475,750 in compensatory damages
(which included the jury’s economic damages award). (R:11,987.)
SUMMARY OF ARGUMENT
I. The trial court did not err in applying the pre-1999 punitive damages
statute, which was the statute in existence when Plaintiff’s underlying claims arose.
Those underlying claims are for the identical negligence, strict liability, fraud, and
conspiracy that caused Elaine’s COPD in 1995, leading to her personal injury
action and claim for punitive damages. That same punishment is no less warranted
because Reynolds’s misconduct was so bad that Elaine died in 2010. Reynolds
point to no principled basis in the law for concluding otherwise.
Applying the 1995 statute is consistent with this Court’s previous reversal
of a trial court decision to apply that applied the 1999 Act in an Engle progeny
case because the smoker died after 1999. Contrary to Reynolds’s contention that
this decision was reversed merely because of its concession, this Court does not
reverse when no error occurred simply because the other side concedes. Moreover,
two other district courts have applied the pre-1999 statute in similar circumstances.
Not only is all of the case law in Plaintiff’s favor, this result is most
consistent with the Legislature’s stated policy and motivations. The Wrongful
Death Act itself seeks to ensure a wrongdoer does not evade liability or
11
punishment by causing death rather than only injury. The death does not alter the
underlying lawsuit that is the basis for punitive damages, but instead only creates a
substitution process to ensure that the causes of action are not also lost. Similarly,
amendments to the punitive damages statute may not be applied to already-existing
actions absent clearly expressed legislative intent that does not exist here.
Even if this Court disagrees, the 1999 Act still should not be applied because
it is unconstitutional. Indeed, the 1999 Act fails rational basis review and violates
both equal protection and substantive due process. Of particular note is the final
provision of section 768.73(2)(b), which provides that even after a trial court has
concluded prior damages were insufficient to punish the misconduct at issue (and
here, that misconduct is among the worst of the worst and requires further
punishment), a plaintiff’s award of punitive damages still must be reduced by prior
awards. This provision lacks a rational basis because it can cut off, as is the case
here, a defendant’s punishment before it ever comes close to an adequate
accounting.
Additionally, the very basis for the statute has been rendered a nullity, as all
Engle juries are instructed that they may only award punitive damages for the harm
caused to the particular plaintiff in a case, consistent with United States Supreme
Court law. There is no longer any danger that a defendant will be punished twice
for causing harm to the same person, rendering the 1999 Act unnecessary.
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Finally, the 1999 Act further violates equal protection because it
distinguishes between plaintiffs based solely on the timing of their lawsuits and the
time they take to wind through the litigation process. Those plaintiffs who, for
example, are injured first, try their cases in a county with no docket backlogs
before a fast-acting trial judge, and never have to contend with a mistrial caused by
factors like juror illness or defense misconduct will be able to obtain punitive
damages at the expense of later plaintiffs based solely on arbitrary factors
completely out of a plaintiff’s control.
II. The trial court did not abuse its discretion in refusing to alter the
jury’s verdict regarding Plaintiff’s non-economic damages. After 29 years of
marriage, the proper measure of Alan’s pain in losing his wife to an excruciating
and devastating disease is a matter entrusted to the jury. The jury heard evidence as
to how Alan and Elaine’s active lifestyle was brought to a halt in their golden
years. It also heard how Alan struggled with the conflict he felt at needing to work
to financially support Elaine while wanting to remain by her side to provide
emotional and physical support. That pressure took a toll on Alan’s own health;
indeed, he had to have heart surgery just a few months before Elaine passed away.
The trial judge reasonably refused to disturb the jury’s verdict. Alan’s
damages are much less than other amounts that this and other district courts have
affirmed in Engle surviving spouse cases. That the jury awarded more than
13
Plaintiff’s counsel requested is of no moment, given that counsel also stated the
jury could go higher or lower and that Reynolds refused to suggest any amount.
Given that the evidence amply supported the jury’s award, Reynolds has no
basis to claim that several mentions of the number of deaths caused by smoking
was the actual reason for the jury’s non-economic award. It states “volumes” of
other evidence improperly inflated the award, but fails to identify it or any ruling
by the trial court it seeks to overturn. Moreover, the jury was instructed not to
award non-economic damages to punish Reynolds or to do anything other than
compensate Alan for his suffering. Finally, Reynolds specifically ties its argument
to its contention that punitive damages should have been barred, but evidence
regarding the number of deaths caused by smoking would still have been
admissible as it is also relevant to comparative fault and reliance issues that were
up for consideration no matter how issue one is resolved.
III. Reynolds concedes its due process claim is foreclosed.
IV. Although this Court concluded to the contrary in R.J. Reynolds
Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), on cross-appeal
Plaintiff preserves his argument that the trial court should not have reduced his
compensatory damages by the jury’s comparative fault finding.
14
ARGUMENT ON MAIN APPEAL
I. THE 1999 AMENDMENTS TO SECTION 768.73 DO NOT PROHIBIT PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES.
Standard of Review. Plaintiff agrees that this Court considers the
interpretation and constitutionality of this statute de novo. E.g., Abram v. State,
Dep’t of Health, Bd. of Med., 13 So. 3d 85, 88 (Fla. 4th DCA 2009).
A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date.
There is no dispute that Elaine’s causes of action for negligence, strict
liability, fraudulent concealment, and conspiracy all accrued well before October 1,
1999, or that she died after that date. The dispute is whether the punitive damages
statutes that apply to this case are the pre-1999 or post-1999 versions.4 In 1999, the
Legislature enacted Chapter 99-225, Laws of Florida (the “1999 Act”), and section
23 of that law imposed more restrictive caps on the potential amount of punitive
damages and restricted the ability of plaintiffs to recover punitive damages against
a defendant who has paid punitive damages for the same course of tortious conduct
in a prior case.
Specifically, the post-1999 version modifies the common law rule that a
prior award of punitive damages against a defendant does not preclude subsequent
4 Although October 1, 1999, is the key date, for ease of reference, this brief
will use the terms “pre-1999” and “post-1999” when referring to the two versions of section 768.73.
15
awards for injuries arising from the same conduct. W.R. Grace & Co. v. Waters,
638 So. 2d 502, 504-05 (Fla. 1994). The pre-1999 version did not address this
issue at all, but under the post-1999 version, if the defendant makes a showing
“before trial” that it has previously paid punitive damages for the same course of
conduct, then the plaintiff may not recover punitive damages unless the court
determines by clear and convincing evidence that the prior award “was insufficient
to punish that defendant’s behavior.” § 768.73(2)(a), (b), Fla. Stat. (2010). Even
then, it requires any subsequent award be reduced by the amount of prior awards
the defendant has paid. Id. § 768.73(2)(b).
Reynolds suggests that the post-1999 version of the statute should apply
because Elaine died in 2010, seeking to prevent her from recovering punitive
damages because of the other punitive judgments it has already paid to Engle
plaintiffs. But binding precedent requires application of the pre-1999 version,
because this Court reversed the only trial court to have followed Reynolds’s logic.
R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013),
quashed on other grounds, Nos. SC14-81 & SC14-83, 2016 WL 374082 (Fla. Jan.
26, 2016). The trial court in Buonomo reduced the jury’s award of punitive
damages to three times the compensatory damage award, relying on another
amendment to the punitive damages statute in the 1999 Act. Id. at 1052. Having
earlier noted that the smoker began suffering from COPD in 1995 and died in 2008
16
after the lawsuit had been filed, id. at 1050, this Court held that the trial court erred
in relying on section 768.73(1)(a)1 because that provision did not exist until the
1999 amendments and “[i]t is … the 1995 version of the statute that governs the
instant case.” Id. at 1052.
Reynolds seeks to evade the holding in Buonomo because this Court noted
that Reynolds did not dispute that the 1995 version governed. That it now disputes
what it previously conceded is of no moment. A confession of error “is not binding
upon an appellate court, and it is the practice of Florida courts not to accept
erroneous concessions.” Glaze v. Worley, 157 So. 3d 552, 557 (Fla. 1st DCA 2015)
(Makar, J., concurring) (quoting Gonzalez v. Dep’t of Health, 124 So. 3d 449, 450
(Fla. 1st DCA 2013)). This Court makes a point to only accept a “proper
confession of error.” E.g., Hall v. U.S. Bank Nat’l Ass’n, 171 So. 3d 830, 30 (Fla.
4th DCA 2015).
And in Buonomo, this Court did not simply rely on Reynolds’s failure to
dispute that the 1995 version applied to reverse the trial court’s decision to the
contrary. Instead, it followed that notation with legal citations and parentheticals
demonstrating it had made a determination that the claim for punitive damages
arose before the 1999 Act even though the smoker died after its enactment.
Buonomo, 138 So. 3d at 1052 (citing Alamo Rent-A-Car, Inc. v. Mancusi, 632
So. 2d 1352, 1358 (Fla. 1994), and St. John v. Coisman, 799 So. 2d 1110, 1113
17
(Fla. 5th DCA 2001)). Both of the cases cited discuss applying the version of the
punitive damages statute in effect when the cause of action arose, so this Court did
not blindly adopt Reynolds’s position. Mancusi, 632 So. 2d at 1358; St. John, 799
So. 2d at 1113.
Since Buonomo, this same conclusion has been adopted by two other district
courts. In R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-4197, 2017 WL 729817,
at *4 (Fla. 1st DCA Feb. 24, 2017), Reynolds argued that provisions requiring
stricter caps and a finding of “conscious disregard” for the safety of others in the
1999 Act should have been applied. As here, Plaintiff’s suit had been filed as a
personal injury case due to Mrs. Allen’s COPD, but she too died after it was filed
and the complaint had been amended to substitute her personal representative and
to seek wrongful death damages. Id. at *5. The First District noted that upon her
death, Mrs. Allen’s case “did not self-destruct,” but instead “abated until a personal
representative was appointed and the existing suit was amended to add the
wrongful death claim.” Id. (internal quotation mark and citation omitted). Thus, her
personal representative, like Alan, “was not required to file a new suit, but instead
was allowed to proceed in the same suit initiated by Mrs. Allen.” Id. (citing
Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)).
Because Mrs. Allen’s lawsuit was an Engle progeny suit like this one, she
was only permitted “to take advantage of the findings in Engle” if her disease
18
manifested by November 21, 1996. Id. at *4. The court concluded: “Just as the
wrongful death action was allowed to relate back to the date of the Engle class for
statute of limitations purposes, the applicable statutory law also relates back to the
Engle class.” Id. at *5. The First District also noted that application of the 1999
Act would impair Mrs. Allen’s substantive right to seek punitive damages. Id.
Since Reynolds filed its initial brief in this case, its motion for rehearing en
banc has been granted in Allen. R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-
4197, Order Granting Rehearing En Banc (June 15, 2007) (order available at
online docket). But the panel decision was not vacated by the order granting
rehearing. Id. Moreover, although the order did not limit en banc review to any
particular issue, the dissenting judge on the panel opinion wrote only to express his
disagreement regarding a juror misconduct issue raised by Reynolds and did not
address punitive damages at all. Allen, 2017 WL 729817, at *6-*10 (Osterhaus, J.,
dissenting).
The Second District recently followed this Court and the First District’s
leads, concluding that the pre-1999 version applied despite the smoker’s death in
2007. R.J. Reynolds Tobacco Co. v. Evers, No. 2D16-1603, 2017 WL 4077870
(Fla. 2d DCA Sept. 15, 2017). The Second District summarized the underlying
reasoning: “While Evers did not file the wrongful death action until 2007 when
Loyd died, her right to do so was based on Loyd’s status as an Engle class
19
member, i.e., Loyd’s manifestation of a tobacco-related disease or medical
condition prior to November 21, 1996.” Id. at *3.
To be sure, this case originated as Elaine’s claim for the personal injuries
she suffered after smoking Reynolds’s cigarettes. Had she waited to file those
claims until 2007, Reynolds no doubt would have argued her claims were untimely
because she was diagnosed with COPD back in 1995. The only reason Elaine’s
case is timely and not subject to statute of limitations argument is because she is a
member of the Engle class and therefore subject to the tolling provided by that
litigation. There is no doubt the pre-1999 statute applied to that lawsuit.
Further supporting application of the pre-1999 statute, this Court has
rejected an identical argument that Reynolds made with regard to an amendment to
another statute limiting a plaintiff’s damages. As this Court is well-aware,
Reynolds and Engle progeny plaintiffs have long disputed whether plaintiffs’
compensatory damages may be reduced by the jury’s comparative fault findings
under section 768.81, Florida Statutes. (It is an issue preserved on cross-appeal
here.) This Court’s seminal case on the issue noted that the parties disputed which
version of the comparative fault statute applied and the Court noted that the general
rule was that the “version in effect at the time the cause of action accrued”
applies. R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487, 492 n.3 (Fla. 4th
DCA 2015) (emphasis added). In addressing the wrongful death claim at issue, the
20
Court then concluded “Plaintiff’s cause of action accrued in 1994, when Mr.
Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute
governs.” Id. Mr. Schoeff did not die until 1995. (R:11,963.)
The result in all these cases is consistent with the very policy behind the
Wrongful Death Act itself—“to shift the losses resulting when wrongful death
occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat.;
see also Capone, 116 So. 3d at 376 (stating that purpose is “to prevent a tortfeasor
from evading liability for his misconduct when such misconduct results in death”).
The Act was created to correct the common law “paradox” permitting a tortfeasor
to escape liability “in situations where the damages were so severe as to result in
death.” Variety Children’s Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983).
Again, the causes of action supporting the demand for punitive damages in this
case are the actions for negligence, strict liability, fraud, and conspiracy, all of
which accrued well before Elaine’s individual personal injury suit was filed, let
alone when wrongful death damages were sought. See Valiant Ins. Co. v. Webster,
567 So. 2d 408, 411 (Fla. 1990) (“While the Wrongful Death Act creates
independent claims for the survivors, these claims are also derivative in the sense
that they are dependent upon a wrong committed upon another person.”), receded
from on other grounds in Gov’t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla.
1995). Reynolds’s attempt to use the Wrongful Death Act to evade liability for its
21
misconduct because it resulted in Mrs. Konzelman’s death could not be more
contrary to long-standing legislatively established core public policies in Florida.
Indeed, the Florida Supreme Court has rejected the argument that the
Wrongful Death Act was unconstitutional for eliminating the plaintiff’s right to
recover punitive damages expressly because it found that the act did not abolish
that part of the personal injury action. Martin v. United Sec. Servs., Inc., 314 So. 2d
765, 767, 771-72 (Fla. 1975). The supreme court made clear that it would be
“difficult for us to accept the proposition that the legislature intended a tortfeasor
to be punished for his malicious and reckless acts when they maim another but not
for those same acts when they kill the victim.” Id. at 771; see also Atlas Props.,
Inc. v. Didich, 226 So. 2d 684, 689 (Fla. 1969) (“any interpretation other than
allowing recovery for punitive damages after the death of the injured party would
be extremely difficult to justify”). Yet that is exactly the result Reynolds seeks
here.
Downplaying its concession and losses on this issue before this Court,
Reynolds instead relies on the reasoning from an inapt decision, Nationwide
Mutual Fire Insurance Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994).
There the Court held that the 1990 amendments to the Wrongful Death Act,
which expanded the survivors who can recover damages, applied where the
decedent died after its effective date. Id. at 1058. In rejecting the argument that a
22
wrongful death action accrues on the date of the accident for purposes of
determining the applicable version of the wrongful death statutes, the Court relied
on two factors that easily distinguish those amendments from the amendments at
issue here.
First, the Legislature had provided that the amendment to the Wrongful
Death Act “shall apply to causes of action accruing on or after” October 1, 1990.
Ch. 90-14, § 3, Laws of Fla. The post-1999 version of section 768.73, however,
uses different language, tying application not to when the cause of action
“accrues,” but when it “arises.” While those two terms are undoubtedly
interchangeable in most contexts, there is reason to give them slightly different
meanings here. It makes sense for amendments to the wrongful death act to apply
based on the date of death because the act governs the remedies available upon
death. But it makes no sense for amendments to the punitive damages statutes,
which the Legislature intends to apply prospectively only, to eliminate or reduce
the decedent’s right to seek punitive damages (and her heirs right to share in that)
based on when the decedent dies. And this Court should avoid constructions that
would lead to absurd results. McKibben v. Malloy, 293 So. 2d 48, 51 (Fla. 1974).
Instead, amendments to any statutes governing tort actions generally should be
applied based on when the underlying cause of action accrued, as this Court held in
Schoeff.
23
Second, this Court recognized that the inquiry did not end with what the
Legislature said because it then went on to examine whether the changes in
available damages could be applied retrospectively. It found that they could
because the “wrongful death statute is remedial.” Nationwide, 645 So. 2d at 1058
(citing § 768.17, Fla. Stat.); see also City of Lakeland v. Catinella, 129 So. 2d 133,
136-67 (Fla. 1961) (remedial statutes do not fall within the general presumption
against retrospective application).
The 1999 Act, on the other hand, has no expression of legislative intent that
its restrictions on the ability to recover punitive damages are remedial and certainly
nothing suggesting an intent to destroy existing rights. The Florida Supreme Court
has held that changes to section 768.73 that would reduce the availability of
punitive damages may not be applied retrospectively absent clearly explained
legislative intent in the very authority on which this Court relied in Buonomo.
Mancusi, 632 So. 2d 1352. An amendment to a punitive damages statute is a
change in substantive law that must be
presumed to operate prospectively rather than retrospectively unless the Legislature clearly expresses its intent that the statute is to operate retrospectively. This is especially true when retrospective operation of a law would impair or destroy existing rights.
Id. at 1358 (citations omitted).
Further evidence that the Legislature intended the 1999 Act to operate only
prospectively is found in the failed attempt in 2015 by members of both houses to
24
make it retroactive. Fla. HB 1067 (2015); Fla. SB 978 (2015). Those bills sought to
apply the provisions of section 768.73 to “all civil actions in which judgment has
not been entered, regardless of when the cause of action arose.” Id. Both bills
targeted Engle plaintiffs—smokers and their families—and the tobacco companies
“hired more than 40 lobbyists” to get it passed, “not including another 50-plus
lobbyists who are also working on litigation reform as part of the state and federal
tort reform efforts which the tobacco industry has long supported.” Mary Ellen
Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo,
Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.),
http://www.tampabay.com/blogs/the-buzz-florida-politics/bill-to-shield-tobacco-
industry-from-damages-in-engle-lawsuits-in-limbo/2222608. Both bills failed.
In sum, the only way to reconcile this Court’s holdings in Buonomo, Schoeff,
and Nationwide is to conclude that the applicability of amendments that change the
remedies provided by the Wrongful Death Act is determined by the date of death,
but that the applicability of statutes applying to tort actions generally, including
section 768.73, is determined by the date the underlying causes of action accrued
regardless of death. Those underlying claims remain the same; the only thing the
wrongful death conversion does is alter how the compensatory damages are
measured and who receives them. See Martin, 314 So. 2d at 767 (noting that the
Wrongful Death Act provisions “consolidate survival and wrongful death actions
25
and substitute for a decedent’s pain and suffering for the survivors’ pain and
suffering as an element of damages”). Relatedly: “A claim for punitive damages
focuses on ensuring the correct remedy for the underlying violation—one that
punishes the defendant and deters others from engaging in similar conduct.” Soffer
v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1230 (Fla. 2016) (emphasis
added).5
Reynolds attempts to avoid this result by contending that “the only loss or
damage claimed is the wrongful death of Elaine Konzelman” and that her “claims
died with her.” Neither assertion is accurate. First, the damages authorized by the
Wrongful Death Act and sought in this case were “loss of decedent’s
companionship and protection and for mental pain and suffering from the date of
injury.” § 768.21(2), Fla. Stat. (2010) (emphasis added). (See also T:3415
(instruction to jury that damages are those incurred “as a result of Elaine
Konzelman’s injury and death”) (emphasis added).)
Second, Elaine’s causes of action were not eliminated or nullified upon her
death; they “merged” together with a new wrongful death claim that “substituted”
the right to recover her compensatory damages with the right to recover the
5 Though the supreme court cited language from the 1999 Act, e.g., Soffer,
187 So. 3d at 1232-33, that has no bearing on the analysis here. This issue was neither raised nor addressed by the court. And the smoker in that case died in 1992, id. at 1222, so even under Reynolds’s argument, the 1999 Act was not applicable.
26
compensatory damages suffered by her estate and survivors. Capone, 116 So. 3d at
375-77. Reynolds keeps pointing to the term “abate” in the statute seemingly
without any recognition of the supreme court’s determination of what that term
meant: “Thus, the Act implemented a process of substitution; that is, where an
injured plaintiff succumbs to injuries allegedly inflicted by a tortfeasor, the
damages that the decedent could have recovered for pain and suffering had he or
she not died are, in effect, transferred to the survivors of the decedent.” Id. at 375.
Stated another way, the “theoretical event” of abatement “does not automatically
terminate a lawsuit”: “A pending lawsuit does not simply self-destruct like the
secret message on a rerun of ‘Mission Impossible.’ ” Id. at 369 (quoting Niemi v.
Brown & Williamson Tobacco Corp., 862 So. 2d 31, 33 (Fla. 2d DCA 2003)). To
find that the pre-existing right to seek punitive damages was not merged and
instead was eliminated to be replaced with a nominal “right” to seek punitive
damages that is nullified by the 1999 Act would promote the very policies the
Legislature sought to avoid in the clearest terms possible—allowing a tortfeasor to
escape punishment because its victim died.
Another case Reynolds cites that is even less on point than Nationwide is
Fulton County Administrator v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999), which
mentions in passing that a wrongful death action in Florida accrues on the date of
death for purposes of the two-year statute of limitations. But that decision was not
27
even applying Florida law. Nor did it consider applying a statutory amendment to
eliminate an existing right. And, as in nearly every case Reynolds cites except for
Nationwide, the decedent in Fulton County did not die following institution of a
claim for personal injuries; instead the action was first commenced as a wrongful
death action.
What Reynolds seeks is a determination that the conversion of a personal
injury lawsuit to a wrongful death lawsuit restarts the clock on the underlying
claims. But Reynolds’s position ignores the longstanding recognition that rights
under the Wrongful Death Act are derivative of the pre-existing substantive rights
held by the decedent before her death. E.g., Valiant Ins. Co. v. Webster, 567 So. 2d
408, 411 (Fla. 1990); Celotex Corp. v. Meehan, 523 So. 2d 141, 147 (Fla. 1988);
Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254, 1258 (Fla. 5th DCA 2010).
So, even though the Wrongful Death Act, as amended up to the time of death,
controls who may sue and what compensatory damages may be recovered, the
rights being sued upon are those that accrued at the time the decedent’s underlying
tort claims accrued.
For instance, Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 116 (Fla.
2002), held that the filing of a wrongful death action did not revive a stale claim
that had been barred by the statute of limitations before the decedent’s death. Thus,
a defendant’s limitations defense is just as valid before the decedent’s death as it
28
was after. Id.; see also Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209,
1212 (Fla. 4th DCA 2017) (concluding that death of smoker who was not an Engle
class member due to limitations statute did not permit survivors to bring progeny
case). But, this principle flows both ways. Just as defendants are allowed defenses
that accrued before the decedent’s death, so too are survivors allowed rights that
accrued before the decedent’s death. Reynolds still has not been punished for the
harm it caused Plaintiff; this Court should adhere to its previous decision to ensure
the fundamental purpose behind the Wrongful Death Act is fulfilled.
B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event.
This Court need and should not reach the question of the constitutionality of
the statute if it can resolve this case by agreeing that the amendments do not apply
here. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (“Of course, we have
long subscribed to a principle of judicial restraint by which we avoid considering a
constitutional question when the case can be decided on nonconstitutional
grounds.”). But if this Court concludes that the 1999 Act prohibits Plaintiff from
seeking punitive damages because Elaine died after its enactment, Plaintiff
maintains that the law strips him of his constitutionally-guaranteed rights to
substantive due process and equal protection. Chiefly, even under the most lenient
constitutional standard there is—rational basis review—the specific limitation on
successive punitive damage awards in the post-1999 version of section 768.73(2)
29
that Reynolds seeks to enforce cannot stand. A quick review of the 1999 Act’s
limitations shows why.
The post-1999 version does not purport to provide that a defendant can only
be punished once for the same course of conduct. To the contrary, although
subsection (2)(a) is a presumptive ban, subsection (2)(b) provides that
notwithstanding that presumption, the trial court should “permit a jury to consider
an award of subsequent punitive damages” if the court “determines by clear and
convincing evidence that the amount of prior punitive damages awarded was
insufficient to punish that defendant’s behavior.” There can be no question that the
relatively few punitive damage awards to have been upheld against Reynolds are
insufficient punishment, given that the industry’s misconduct is the worst of the
worst and that it injured or killed millions of people. E.g., Lorillard Tobacco Co. v.
Alexander, 123 So. 3d 67, 82-83 (Fla. 3d DCA 2013). Reynolds and its co-
conspirators took an already dangerous product and intentionally designed it to
make it even more dangerous. They engaged in a decades-long, sophisticated
conspiracy to fraudulently conceal that information, knowing that millions would
die just so these companies could make more money.
Even absent those facts, the prior awards’ punishment for Reynolds’s course
of conduct are insufficient as a matter of constitutional law because, well after the
1999 Act was passed, the United States Supreme Court held that states must
30
provide some protection against a jury awarding punitive damages to punish a
defendant for harm to anyone but the plaintiff. Philip Morris USA v. Williams, 549
U.S. 346, 353-54 (2007). A Williams instruction is given in every Engle progeny
case, as was the case here (T:3793), which means that the punitive damage awards
in those cases were necessarily limited to punishment for the injuries to those
plaintiffs and could not, as a matter of constitutional law, have served to punish for
the harm to the Konzelman family.
Nevertheless, as Reynolds puts it, the rest of the statute makes clear that a
factual demonstration that Reynolds had not yet been sufficiently punished “would
have been futile.” (Init. Br. 14.) That is because of the last clause of subsection
(2)(b): “Any subsequent punitive damage awards must be reduced by the amount
of any earlier punitive damage awards rendered in state or federal court.” There is
no dispute that the total prior awards paid by Reynolds exceed the award in this
case. That is precisely because the Constitution forbade the jury in this case (or any
of the prior cases) from setting punitive damages in an amount designed to punish
for the entire course of conduct.
It is this internal conflict in section 768.73(2) that belies any rational basis to
the statute. Unless that last clause of subsection (2)(b) is judicially excised, the
1999 Act draws arbitrary, capricious, and unreasonable lines, violating equal
protection and substantive due process protections in the state and federal
31
constitutions. See Estate of McCall v. United States, 134 So. 3d 894, 901 (Fla.
2014) (“To satisfy the rational basis test, a statute must bear a rational and
reasonable relationship to a legitimate state objective, and it cannot be arbitrary or
capriciously imposed.”); State v. Robinson, 873 So. 2d 1205, 1214 (Fla. 2004)
(“The rational relationship test used to analyze a substantive due process claim is
synonymous with the reasonableness analysis of an equal protection claim.”).
Indeed, the clause cannot serve the purpose for the distinction—to ensure adequate
punishment while only barring duplicate punishment.
It is a well-established principle of constitutional law “that a statute which
depends upon the existence of a certain state of facts for its validity may cease to
be constitutionally valid when that certain set of facts ceases to exist.” Conner v.
Cone, 235 So. 2d 492, 498 (Fla. 1970) (citation omitted). The Williams decision
ended any set of facts that could support the clause at issue. Indeed, Williams
provided exactly the sort of “uniform solution” applicable across the 50 states that
the supreme court had concluded would be the only manner by which multiple
punitive damages awards for the same course of conduct could be addressed. W.R.
Grace & Co., 638 So. 2d at 505. Post-Williams, there is no longer a possibility that
a prior award can constitute punishment for injuring a subsequent plaintiff.
Thus, the sole reason for treating a subsequent plaintiff differently from a
prior plaintiff is a legislative determination that a defendant should be punished for
32
its entire course of conduct, but only once. But in light of Williams, the
Legislature’s patent purpose of ensuring sufficient punishment for a course of
conduct can only be achieved if the last clause is eliminated. Thankfully, the 1999
Act has a severability clause:
If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable.
Ch. 99-225, § 35, Laws of Fla. To give effect to the remaining provisions and to
uphold the clear legislative intent behind the amendments to section 768.73(2), the
Court should invalidate the last clause of subsection (2)(b).
The 1999 Act further violates equal protection for the simple fact that it
treats persons injured by the tobacco companies differently solely on the arbitrary
distinction of who gets to a jury verdict first. That is not a rational basis to allow
the claim for one injured party and deny it for another. See Estate of McCall, 134
So. 3d at 902 (invalidating cap that “limited the recovery of a surviving child (and
surviving parents) simply because others also suffered losses”).
The timing of when a person is injured or when that person’s case gets
through the trial process is not a matter that is within the control of the injured
party and yet that is the very thing that separates those who can recover from those
who cannot. The enormity of a defendant’s case-specific conduct does not matter,
33
nor does the extent of the plaintiff’s injuries; instead, everything depends on
chronology. See id. at 904 (finding statute unconstitutional that “treats similarly
situated, eligible survivors differently by reducing the damages awarded without
regard to the fault of the wrongdoer and based solely upon a completely arbitrary
factor, i.e., how many survivors are entitled to recovery”).
A plaintiff’s ability to claim and recover punitive damages is not just a “race
to the courthouse”; it is also a race through the adjudicatory process. A plaintiff
could file the first suit against a defendant but still earn a “subsequent” punitive
award depending on how fast later-filing plaintiffs could get a verdict. Thus, the
ability to recover punitive damages could depend on whether a plaintiff files suit in
a county with a busy docket, or whether a plaintiff’s assigned judge has available
trial dates, or whether a mistrial occurs due to any number of reasons far beyond a
plaintiff’s control. All of these reasons for depriving plaintiffs of punitive damages
as second comers are “purely arbitrary” and “unrelated to any state interest.” St.
Mary’s Hosp. v. Phillipe, 769 So. 2d 961, 972 (Fla. 2000). The supreme court
concluded as much in rejecting the argument that such a limitation was warranted
prior to passage of the 1999 Act. W.R. Grace & Co., 638 So. 2d at 505 (rejecting
argument in part because it was impossible to “devise a fair and effective
solution”).
34
Not only is section 768.73(2) now unnecessary, but it actually subverts the
legislative purpose in providing for punitive damages. Because the award to the
first plaintiff is limited to the harm caused to that plaintiff under Williams, the
effect of the bar to successive awards is to punish the defendant for only a fraction
of the harm caused by its misconduct. Yet it insulates the defendant from further
liability, contrary to the clause’s patent purpose of ensuring sufficient punishment.
In short, the statute does not meet the original objective of avoiding multiple
punishments for the same conduct; all it does is foreclose the right of a subsequent
plaintiff to assert a claim at all. Far from ensuring full punishment and no more, the
statute rewards wrongdoers who commit bad acts on a massive scale. Lacking any
rational relationship to its stated purpose and the classifications drawn, the 1999
Act violates both substantive due process and equal protection.
II. THE TRIAL COURT REASONABLY UPHELD THE JURY’S AWARD OF NON-ECONOMIC DAMAGES.
Standard of Review. Reynolds concedes that the trial court’s order denying
a motion for remittitur is reviewed only for an abuse of discretion. Philip Morris
USA Inc. v. Cohen, 102 So. 3d 11, 18 (Fla. 4th DCA 2012). The trial court’s ruling
on the admissibility of evidence is also reviewed for an abuse of discretion. Jones
v. Alayon, 162 So. 3d 360, 364 (Fla. 4th DCA 2015).
35
A. The Award Was Not Excessive.
The jury’s compensatory damages award of $8.5 million is not the product
of passion and prejudice but instead is perfectly in accordance with the evidence in
this case and awards to other Engle surviving spouses. Alan and Elaine had been
married for 29 years at the time of Elaine’s death. As Reynolds repeatedly
emphasizes, Alan’s job as an engineer on merchant ships required him to be away
from home for a couple of months at a time, after which he was home for a couple
of months without work obligations, allowing the two to spend all of their time
together. (T:2269, 2280, 2339, 2549.) Thus, the time apart was no different than a
couple that works eight or more hours away from each other each day, spending
only nights and weekends together. During their time together, they globe-trotted
and sailed their boat, maintaining a very active lifestyle until Elaine’s COPD
brought it to a halt. (T:1967, 2281, 2285-86, 2536.)
When Elaine got sick, Alan cared for her as much as his job and own health
permitted him to. (T:2287, 2289.) Alan needed to continue working to support
them. The long distance did not, however, keep Alan from ensuring that Elaine
was well cared for when he was unable to be there himself. (T:2551, 2557, 2289,
2360.) He even twice transported her to California so she could be near her
daughter when his own health or work prevented him from caring for her. (T:2551-
52.) When he was not working, Alan was with Elaine around the clock or carefully
36
monitoring her care. (T:2554; Ex. R3:1339, 1342, 2654, 2820, 3157, 3502, 4148,
4322, 5000, 5157, 5248, 5576-77.) When her health got so bad that she had to have
24-hour care, Alan would visit her every day. (T:2290, 2553-54, 2622-23.)
The stress and sadness of caring for Elaine eventually took a toll on Alan’s
own health and he felt “helpless.” (T:2289, 2554.) Elaine was in California the last
few months of her life to be near her daughter because Alan had undergone heart
surgery just a few months prior. (T:2291, 2552.) As soon as he could, Alan
traveled to California too and was with Elaine the day she died. (T:2291, 2556.)
Alan was “devastated” by Elaine’s death; he still loves and misses her. (T:2292,
2557.)
In short, the evidence supports the jury’s award for the pain and suffering
Alan endured as a result of watching his wife deteriorate and eventually die from
an excruciating disease. In arguing to the contrary, Reynolds misrepresents the
testimony in two instances. First, it states that there was no testimony besides
Alan’s “concerning the depth of Plaintiff’s grief or its impact on his life.” (Init. Br.
35.) But Elaine’s daughter testified extensively about how Elaine’s illness “took a
toll on Alan,” with the emotional and financial impact being “too much to handle
almost” or “one of the hardest things,” and that she ultimately had “just no words
to even describe what the man’s gone through with his wife.” (T:2554, 2557.)
Further belying Reynolds’s assertion was Elaine’s own words, which showed that
37
the couple was still very close a year before she died when she requested to have
her body cremated and that her “ashes be returned to Alan and scattered out to sea
with Alan’s.” (Ex. R3:3288.)
Second, Reynolds mentioned that Alan “now travels in the company of a
female friend he knew before his marriage” (Init. Br. 35), but both Alan and this
“female friend” testified that their reconnection, which did not take place until a
year and a half after Elaine’s death, had quickly fizzled and they had not spoken
since 2014. (T:2356, 3315.) In any event, this Court has recognized that while
Florida law makes evidence of re-marriage admissible, such evidence does not
mitigate non-economic damages. Cardona v. Gutierrez, 562 So. 2d 766, 769 (Fla.
4th DCA 1990).
The award in this case is well within the range of compensatory damage
verdicts upheld in other Engle progeny cases for a surviving spouse who had to
watch his or her partner suffer an excruciating illness. See Philip Morris USA, Inc.
v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ($10 million); R.J. Reynolds
Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012) ($10.8 million);
Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013) ($10
million). Indeed, Reynolds can point to no Engle progeny appeal reversing the
denial of a remittitur under these facts. Instead it points to the above-cited cases
affirming awards in the $10 million range. In each of those cases, the surviving
38
spouses cared for their dying husbands in the final grueling months of their illness.
Alexander, 123 So. 3d at 71; Cohen, 102 So. 3d at 19; Townsend, 90 So. 3d at 312.
The couples had been married for 30-plus years; in each case the wives had been
on their own in the ensuing years following their husbands’ deaths. Alexander, 123
So. 3d at 71; Cohen, 102 So. 3d at 19; Townsend, 90 So. 3d at 312. The verdict
here is in no way an outlier for an Engle progeny case, and the result is fully
supported by the evidence.
That there are differences in the circumstances of these cases does not make
the lesser award here unreasonable. See Aills v. Boemi, 41 So. 3d 1022, 1028 (Fla.
2d DCA 2010) (“because no injury is exactly like another and different individuals
may be adversely affected to a greater or lesser degree by similar injuries, …
comparisons must be made with caution”). Instead, these circumstances are matters
the jury was entitled to take into account, as Reynolds argued extensively in
closing argument. (T:3582-92.) That the jury did and came up with a figure that is
less than the damages awarded in other cases, or that it perhaps rejected
Reynolds’s spin on the evidence due to credibility assessments are determinations
well within the jury’s province.
Reynolds also argues that Alan’s emotional loss does not reach the level of
“depth and intensity” that is demonstrated in other similar cases, pointing out the
brevity of Alan’s own testimony regarding his suffering from the loss of his wife.
39
(Init. Br. 35, 37.) But Elaine’s daughter explained that Alan was “a man of few
words” who at first appeared “gruff and rough” though he was really a “teddy
bear” once you got to know him. (T:2557.) Whether his testimony reflected a man
who did not love or miss his wife or instead reflected his guarded personality and
demeanor was another matter for the jury to resolve. See Alamo Rent-a-Car, Inc. v.
Clay, 586 So. 2d 394, 395 (Fla. 3d DCA 1991) (familial bond “is one which may
be properly assessed only by the representative of the community as a whole, the
jury”).
“[T]he amount of damages rests solely within the jury’s discretion, and the
jury’s decision must be given great credence.” Tobias v. Osorio, 681 So. 2d 905,
907 (Fla. 4th DCA 1996); see also Bould v. Touchette, 349 So. 2d 1181, 1184-85
(Fla. 1977) (holding that the compensatory damages verdict “should not be
disturbed unless it is so inordinately large as obviously to exceed the maximum
limit of a reasonable range within which the jury may properly operate.”). That
these sort of distinctions and comparisons are difficult is precisely why our system
entrusts them to juries:
Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.
40
Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla. 1955); see also
Citrus Cty. v. McQuillin, 840 So. 2d 343, 348 (Fla. 5th DCA 2003) (determining
the “dollar value on a human life, measured by the loss and grief of a loved one”
must generally be left to the jury, not the courts); accord R.J. Reynolds Tobacco
Co. v. Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012). The determinations they
make are entitled to a great deal of deference: “The trial court does not sit as a
seventh juror. Neither does the reviewing court reserve the prerogative to overturn
a damages verdict with which it merely disagrees.” Dyes v. Spick, 606 So. 2d 700,
702 (Fla. 1st DCA 1992).
The jury and the trial court “had the unique opportunity to observe [Alan]
and to hear and consider all the evidence” and “were in a position to evaluate and
determine the intensity and weight of [his] loss and to place a monetary value on
that loss.” Alexander, 123 So. 3d at 78. The jury saw fit to compensate Alan for the
pain and suffering he endured in losing the love of his life. And the trial judge, also
having been given the opportunity to listen to the evidence and the testimony in
this trial, denied Reynolds’s post-trial motion for a remittitur. (R:11,992.)
Though the non-economic damages amounted to more than the $5 million
that Plaintiff’s counsel suggested in closing, Reynolds has not cited a case that
would require reversal on that basis alone. Instead, this Court has long held “that a
jury might properly award damages equal to or in excess of those requested by
41
counsel in closing argument.” Lopez v. Cohen, 406 So. 2d 1253, 1256 (Fla. 4th
DCA 1981). Indeed, the Third District affirmed an award that was twice the
amount requested by the plaintiff. Rudy’s Glass Constr. Co. v. Robins, 427 So. 2d
1051, 1053 (Fla. 3d DCA 1983); see also Philip Morris USA, Inc. v. Cuculino, 165
So. 3d 36, 38-39 (Fla. 3d DCA 2015) (affirming $12.5 million award where
plaintiff’s counsel suggested a $10 million award even though court also concluded
improper arguments had been made by plaintiff). That the jury was fully
independent and not swayed by passion or prejudice is further reflected in its
conclusion that Elaine was 50% more at fault than Plaintiff’s counsel had
suggested. (R:11,551; T:3483-84); see Cuculino, 165 So. 3d at 39 (finding jury’s
verdict reflected it was not overly prejudiced by closing arguments “because the
jury did not completely find in favor of Mr. Cuculino”).
While this Court focused in part on the amount plaintiff’s counsel requested
for punitive damages in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487,
491-92 (Fla. 4th DCA 2015), it held the $30 million award excessive because the
trial court made a finding that there was “no logical or sound reason for the jury to
have exceeded the award sought.” There is no such finding in this case. Moreover,
this Court emphasized that “Plaintiff’s counsel begged the jury not to award her
more than $25 million in punitive damages.” Id. In contrast, Plaintiff’s counsel
42
here emphasized $5 million was “just a suggestion” and the jury was free to go
higher or lower. (T:3487.)
And in finding that an $8 million non-economic award to a surviving adult
child who was 54 when her father died was excessive, the First District
emphasized that not only was that twice the amount the plaintiff had suggested, but
the jury “assigned to [the smoker] half of the percentage of fault her counsel
acknowledged during closing argument.” R.J. Reynolds Tobacco Co. v. Webb, 93
So. 3d 331, 339 (Fla. 1st DCA 2012). In contrast, this jury awarded far less than
twice plaintiff’s request and found the smoker to be more at fault than suggested.
The only thing the jury’s findings demonstrate is careful independence and a
straightforward exercise of the very judgment our system entrusts to jurors.
Furthermore, Reynolds failed to offer an alternative figure to the jury that
may be considered appropriate. (T:3580-92); cf. Aills v. Boemi, 41 So. 3d 1022,
1028 n.3 (Fla. 2d DCA 2010) (“When the defendant does not assist the jury in
establishing a range for a verdict, it is more difficult for the defendant to later
suggest that a verdict below the plaintiffs’ request is somehow a verdict which
exceeds the maximum limit of the reasonable range in which the jury was free to
operate.” (quoting Hawk v. Seaboard Sys. R.R., Inc., 547 So. 2d 669, 674 (Fla. 2d
DCA 1989) (Altenbernd, J., concurring)).
43
Reynolds points to nothing in the record that was “indicative of the improper
influences of passion and prejudice working on the jury.” Nordt v. Wenck¸ 653
So. 2d 450, 452 (Fla. 3d DCA 1995). “The fact that a damages award is large does
not in itself render it excessive nor does it indicate that the jury was motivated by
improper consideration in arriving at the award.” Cohen, 102 So. 3d at 18, quashed
on other grounds, No. SC13-35, 2016 WL 375143 (Fla. Jan. 29, 2016). No
irrelevant or overly emotional testimony was presented. See Webb, 93 So. 3d at
338-39 (citing as indicative of the jury’s improper motive the fact that Ms. Webb
gave very emotional testimony about her “personal medical difficulties” and her
father’s close relationship and assistance with her first-born child, who had a fatal
rare chromosomal disorder). The other cases Reynolds cites for its arguments are
also easily distinguished. One involved a compensatory damages verdict nearly six
times what counsel asked for, as well as additional indications that the jury was
motivated by passion or prejudice. Int’l Union of Operating Engineers, Local No.
675 v. Lassitter, 295 So. 2d 634, 639 (Fla. 4th DCA 1974). The other involved a
large award to each of the adult children of the decedent, all of whom had a
“strained” relationship with their father. MBL Life Assur. Corp. v. Suarez, 768 So.
2d 1129, 1136 (Fla. 3d DCA 2000). Here, the trial court reasonably concluded the
damages award was not excessive, a conclusion supported by the record and case
law.
44
B. Evidence of the Number of Deaths Caused by Smoking Had No Relevance to or Impact on the Non-Economic Damage Award.
If this Court affirms on the first issue raised on appeal, it need not consider
Reynolds’s argument regarding the admission of number of deaths. There can be
no question such evidence is relevant to Reynolds’s reprehensibility. Indeed, this
Court affirmed the admission of this same evidence without comment in Philip
Morris USA Inc. v. McKeever, 207 So. 3d 907, 907 (Fla. 4th DCA 2017).6 This
Court also has noted in other contexts the relevancy of the number of deaths to the
reprehensibility analysis. See Cohen, 102 So. 3d at 17 (approving of jury’s
consideration of potential harm to others caused by smoking because “conduct that
risks harm to many is likely more reprehensible than conduct that risks harm to
only a few [and] a jury consequently may take this fact into account”) (citation
omitted), quashed on other grounds, 2016 WL 375143.
In any event, Reynolds makes clear its argument regarding the evidence
goes to its claim that the jury’s compensatory damages award was prejudiced by
the admission of this evidence, a claim it did not make below. (R:11,727-32.) Its
brief notation via footnote that such evidence is not relevant to reprehensibility
waives its argument thereto. See Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla.
6 Although the opinion affirmed the issue without comment, on October
10, 2017, this Court granted Plaintiff’s request to take judicial notice of the briefs in that case, which reflect that this issue was raised there.
45
1997) (concluding argument made in footnote was not “fully brief[ed]” and
therefore “constitute[d] a waiver of the[] claims”).
Turning to the claims that Reynolds does make in its brief, they too are
meritless. Evidence regarding the number of deaths caused by smoking has
relevance beyond reprehensibility in these cases, but there has been no showing it
played any role in the compensatory damages assessment. First, statistics about the
number of people who die from smoking reflects both on Reynolds’s comparative
negligence in this case and the reasonability of Elaine’s reliance on Reynolds’s
fraud. The evidence shows that (1) the dangers of smoking are so astronomical that
the jury should apportion a high degree of fault to Reynolds in light of its conduct
to foster and maintain addiction to those cigarettes and to manipulate consumer
expectations to believe the dangers had not been proven (the comparative fault
issue), and (2) numerous other smokers relied on the industry’s concealment, as
evidenced by the fact that they continued to smoke at such rates and in such
amounts that hundreds of thousands of them die every year (the reliance issue).
These were reasonable bases for admitting the evidence.
Second, Reynolds cannot show that the admission of the evidence infected
the jury’s compensatory damages verdict. The jury was instructed to consider only
the damage caused by Elaine’s death and not to award compensatory damages to
punish Reynolds. (T:3415-16.) None of the elements described touched on the
46
deaths of others. And “juries are presumed to follow the instructions given them”
absent specific evidence to the contrary. Carter v. Brown & Williamson Tobacco
Corp., 778 So. 2d 932, 942 (Fla. 2000).
Reynolds points to a total of four times these figures were even mentioned at
trial, once in opening, once during examination of an expert witness, and twice in
closing argument. (Init. Br. 40.) The mentions in Phase II of the trial obviously
have no bearing on the jury’s compensatory damages award. As for what the
remaining “volumes of inflammatory evidence” were, Reynolds never illuminates
that assertion with a citation to the record to show what the evidence was, whether
it preserved whatever its objections were, or that there was any ruling by the trial
court of which it seeks reversal. E.g., Fla. Dep’t of Agric. & Cons. Servs. v.
Mendez, 98 So. 3d 604, 608 (Fla. 4th DCA 2012). Thus, Reynolds’s claim that the
jury’s compensatory damages award was inflated by this evidence finds no support
in the actual record in this case.
III. REYNOLDS ONLY SEEKS TO “PRESERVE” ITS UNDEVELOPED “CONSTITUTIONAL CLAIMS.”
Reynolds claims a due process violation, but provides no actual legal
argument. It concedes the issue it is raising is precluded by Philip Morris USA, Inc.
v. Douglas, 110 So. 3d 419 (Fla. 2013). It then asserts that there is an additional
issue regarding intentional torts unaddressed by Douglas, but never cites any
adverse ruling on the issue and concedes that it is foreclosed. Since Reynolds has
47
failed to sufficiently brief the issue, it has abandoned whatever additional issue it
contends was not addressed by Douglas. See Shere v. State, 742 So. 2d 215, 217
n.6 (Fla. 1999) (finding claims were “insufficiently presented for review” where
appellant “did not present any argument or allege on what grounds the trial court
erred in denying these claims”).
ARGUMENT ON CROSS-APPEAL
IV. THE TRIAL COURT ERRED IN REDUCING COMPENSATORY DAMAGES BY COMPARATIVE FAULT BECAUSE PLAINTIFF PREVAILED ON HIS INTENTIONAL TORT CLAIMS.
Standard of Review. The trial court’s interpretation of the comparative fault
statute is a question of law reviewed de novo. R.J. Reynolds Tobacco Co. v.
Schoeff, 178 So. 3d 487, 492, 496 (Fla. 4th DCA 2015).
Although Plaintiff concedes that a comparative fault reduction in this case is
now required under Schoeff and R.J. Reynolds Tobacco Co. v. Calloway, 201 So.
3d 753, 766-67 (Fla. 4th DCA 2016), he preserves his argument that those
decisions should be reversed. Namely, damages for intentional torts should not be
reduced, under either the plain language of the comparative fault statute or the
common law. § 768.81(4), Fla. Stat. (1995); Meyer v. Thompson, 861 So. 2d 1256,
1258 (Fla. 4th DCA 2003); Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968,
976 (Fla. 4th DCA 1999).
48
In Schoeff, this Court relied on Merrill Crossings Associates v. McDonald,
705 So. 2d 560 (Fla. 1997), where the supreme court concluded that a negligent
tortfeasor was not entitled to have its liability reduced by the fault of intentional
tortfeasors. Schoeff, 178 So. 3d at 495. But those circumstances are the exact
opposite of Engle cases, where intentional tortfeasors (the tobacco defendants)
seek to have their liability reduced by the negligence of others (the smokers).
Additionally, if Schoeff is correct, then in Merrill Crossings and any other
negligence case grounded on the failure to prevent an intentional tort, comparative
fault would not apply to reduce the liability of one negligent defendant by the fault
of another negligent defendant. Not only does this fly in the face of the plain
language of section 768.81, but it conflicts with the actual result in Merrill
Crossings.
Moreover, Engle progeny cases simply are not “based on conduct grounded
in negligence.” Schoeff, 178 So. 3d at 496. Indeed, in describing the conduct
underlying the negligence claims, this Court quoted several key actions by Engle
defendants that can only be described as intentional, such as how they
“manipulated the nicotine in cigarettes” and “produced advertisement and
marketing strategies destined to mislead the public.” Id.
In actuality, these cases are premised both on the intentional decision by
Reynolds and its conspirators to design their cigarettes to be as addictive as
49
possible, foregoing available and safer alternative designs, and on their relentless
efforts over decades to conceal from the public the dangers their own research
proved. E.g., Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, 80-83 (Fla. 3d
DCA 2013); R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1070 (Fla. 1st
DCA 2010). At the linchpin of all Engle plaintiffs’ claims is the defendants’
intentional conduct.
This is doubly so because Engle progeny plaintiffs never limit their evidence
to only negligent conduct, as that is established by proving that the plaintiff was a
class member. See Douglas, 110 So. 3d at 430 (“Like the strict liability claim, the
Phase I jury already determined that the defendants’ conduct subjects them to
liability to Engle class members under this negligence theory.”). All the evidence
presented to these juries regarding Reynolds and its conspiracy focuses on the
tobacco companies’ intentional misconduct. This Court should reverse the trial
court’s reduction of Plaintiff’s damages, were it not bound to do otherwise under
Schoeff.
CONCLUSION
For the foregoing reasons, the judgment should be affirmed and this Court
should include a citation to Schoeff in denying the cross-appeal.
50
Eric S. Rosen Florida Bar No. 46383 [email protected] Kelley Uustal, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, Florida 33316 Telephone: (954) 522-6601 Facsimile: (954) 522-6608
Respectfully submitted, /s/ Courtney Brewer John S. Mills Florida Bar No. 0107719 [email protected] Courtney Brewer Florida Bar No. 890901 [email protected] [email protected] (secondary) The Mills Firm, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 (850) 765-0897 (850) 270-2474 facsimile
Counsel for Appellee/Cross-Appellant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following counsel for Appellant/Cross-Appellee by email on October 11, 2017:
William L. Durham II [email protected] Val Leppert [email protected] Chad A. Peterson [email protected] [email protected] KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309
/s/ Courtney Brewer
Attorney
51
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14-point font and complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).
/s/ Courtney Brewer
Attorney