CASE NO. 4D16-4310

__________________________________________________________________

IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT

_______________________________________________________________

R.J. REYNOLDS TOBACCO COMPANY,

Appellant/Defendant

v.

ALAN KONZELMAN, as personal representative of the ESTATE OF ELEANOR KONZELMAN,

Appellee/Plaintiff,

________________________________________________________________

INITIAL BRIEF OF APPELLANT R.J. REYNOLDS TOBACCO COMPANY

________________________________________________________________

On Appeal from the Seventeenth Judicial Circuit In and For Broward County (Case No. 2008-CV-019620 (19)), Hon. John J. Murphy, III

_______________________________________________________________

William L. Durham II

Florida Bar No. 91028 Val Leppert Florida Bar No. 97996 KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100

Counsel for Appellant

R.J. Reynolds Tobacco Company

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TABLE OF CONTENTS

STATEMENT OF THE CASE AND OF THE FACTS ....................................... 1 

A. The Bar Against Cumulative Awards of Punitive Damages ................... 2 

B.  Plaintiff’s Lawsuit .................................................................................... 3 

C.  Reynolds Invokes Section 768.73 ............................................................ 4 

D. Evidence Relevant to Non-Economic Damages ...................................... 6 

E.  Jury Verdicts and Post-Trial Motions ...................................................... 8 

SUMMARY OF ARGUMENT ............................................................................... 9 

ARGUMENT .......................................................................................................... 12 

I.  THE TRIAL COURT ERRED WHEN IT REFUSED TO APPLY FLORIDA’S BAR AGAINST SUCCESSIVE AWARDS OF PUNITIVE DAMAGES BASED ON THE SAME CONDUCT ................................................................................................. 12 

A. Standard of Review ................................................................................ 12 

B.  Section 768.73(2) Barred Plaintiff from Seeking or Recovering Punitive Damages .................................................................................. 12 

C.  The Current Version of Section 768.73(2) Applies in this Case ........... 15 

D. The Trial Court’s Citation to R.J. Reynolds Tobacco Co. v. Buonomo Was Misplaced ...................................................................... 18 

E.  Plaintiff’s Arguments To the Trial Court and the First District’s Recent Decision in Allen Are Incorrect and Conflict With Established Florida Law, including Nationwide .................................... 20 

II.  REYNOLDS IS ENTITLED TO A SUBSTANTIAL REMITTITUR OR A NEW TRIAL ON COMPENSATORY DAMAGES ................................................................................................ 32 

A. Standard of Review and Legal Principles .............................................. 32 

ii

B.  The Evidence Did Not Support an Award of $8.5 Million in Non-Economic Damages ............................................................................... 34 

C.  The Admission of Irrelevant “Reprehensibility” Evidence Inflamed the Jury’s Prejudices and Likely Influenced It To Award Excessive Compensatory Damages ........................................... 38 

III.  REYNOLDS PRESERVES ITS CONSTITUTIONAL CLAIMS REGARDING THE USE OF THE ENGLE FINDINGS. ..................... 41 

CONCLUSION ....................................................................................................... 42 

CERTIFICATE OF SERVICE ............................................................................ 44 

CERTIFICATE OF COMPLIANCE .................................................................. 45 

iii

TABLE OF AUTHORITIES

Cases 

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) ................................................................................. 29

Arnold Lumber Co. v. Harris, 503 So. 2d 925 (Fla. 1st DCA 1987) .................................................................... 19

Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954) ..................................................................................... 32

Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002) ................................................................... 30

Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977) ................................................................................. 31

Carr v. Carr, 569 So. 2d 903 (Fla. 4th DCA 1990) ................................................................... 19

Charles v. S. Baptist Hosp. of Fla., Inc., 209 So. 3d 1199 (Fla. 2017) ................................................................................. 21

City of St. Petersburg v. Hackman, 672 So. 2d 42 (Fla. 2d DCA 1996) ....................................................................... 35

D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003) ............................................................................ 19, 30

Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006) ............................................................................ 3, 24

Estate of Despain v. Avante Grp., Inc., 900 So. 2d 637 (Fla. 5th DCA 2005) ...................................................... 15, 16, 30

Fla. E. Coast Rwy. v. McRoberts, 149 So. 631 (Fla. 1933) ........................................................................................ 27

Fulton Cty. Adm’r v. Sullivan, 753 So. 2d 549 (Fla. 1999) ...................................................................... 16, 19, 30

iv

Glabman v. De La Cruz, 954 So. 2d 60 (Fla. 3d DCA 2007) ....................................................................... 37

Gordon v. State, 608 So. 2d 800 (Fla. 1992) ................................................................................... 29

Gresham v. Courson, 177 So. 2d 33 (Fla. 1st DCA 1965) ...................................................................... 31

In re: Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014) ................................................................. 25

ITT Hartford Ins. Co. v. Owens, 816 So. 2d 572 (Fla. 2002) ................................................................................... 31

J & S Installation Specialist, Inc. v. Mabry, 857 So. 2d 346 (Fla. 2d DCA 2003) ..................................................................... 24

Johnson v. United States, 780 F.2d 902 (11th Cir. 1986) .............................................................................. 33

Kantaras v. Kantaras, 884 So. 2d 155 (Fla. 2d DCA 2004) ..................................................................... 30

Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133 (Fla. 3d DCA 2008)................................................................... 21

Kopel v. Kopel, --- So. 3d ---, 2017 WL 372074 (Fla. Jan. 26, 2017) .................................................................. 25

Lassitter v. Int'l Union of Operating Eng’rs, 349 So. 2d 622 (Fla. 1976) ................................................................................... 38

Lee v. CSX Transp., Inc., 958 So. 2d 578 (Fla. 2d DCA 2007) .............................................................. 28, 30

Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013) ................................................................ 35, 36

Matos v. State, 899 So. 2d 403 (Fla. 4th DCA 2005) ................................................................... 11

MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129 (Fla. 3d DCA 2000)................................................................... 38

v

Moorey v. Eytchison & Hoppes, Inc., 338 So. 2d 558 (Fla. 2d DCA 1976) .............................................................. 16, 30

Nat’l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653 So. 2d 1055 (Fla. 4th DCA 1995) ................................................................. 41

Nationwide v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994) ......................................................... passim

Philip Morris Inc. v. French, 897 So. 2d 480 (Fla. 3d DCA 2004) ..................................................................... 38

Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ..................................................................... 35

Philip Morris USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016) ................................................................... 32

Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013) ............................................................................ 21, 41

Philip Morris USA, Inc. v. Naugle, 103 So. 3d 944 (Fla. 4th DCA 2012) ................................................................... 40

R.J. Reynolds Tobacco Co. v. Allen, -- So. 3d ---, 2017 WL 729817 (Fla. 1st DCA Feb. 24, 2017) .................... passim

R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013) .......................................................... 18, 19

R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016) ................................................................................. 22

R.J. Reynolds Tobacco Co. v. Odom, 210 So. 3d 696 (Fla. 4th DCA 2016) ................................................................... 31

R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) ................................................................... 26

R.J. Reynolds Tobacco Co. v. Smith, 131 So. 3d 18 (Fla. 1st DCA 2013) ...................................................................... 33

R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012) ................................................... 14, 32, 35, 36

vi

R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) ............................................................... 33, 40

Roden v. R.J. Reynolds Tobacco Co., 145 So. 3d 183 (Fla. 4th DCA 2014) ................................................................... 25

Schachner v. Sandler, 616 So. 2d 166 (Fla. 4th DCA 1993) ................................................................... 25

Shadd v. R.J. Reynolds Tobacco Co., 2017 WL 1959998 (Fla. 15th Cir. Ct. April 12, 2017) ..................... 16, 17, 22, 29

Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) .......................................................................... 16, 24

St. John v. Coisman, 799 So. 2d 1110 (Fla. 5th DCA 2001) .................................................... 15, 16, 30

State v. Dorian, 619 So. 2d 311 (Fla. 3d DCA 1993) ..................................................................... 26

Sun Intern. Bahamas, Ltd. v. Wagner, 758 So. 2d 1190 (Fla. 3d DCA 2000)...................................................... 15, 16, 30

Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002) ............................................................................ 27, 28

Walker v. Beech Aircraft Corp., 320 So. 2d 418 (Fla. 3d DCA 1975) .............................................................. 16, 30

Werneck v. Worrall, 918 So. 2d 383 (Fla. 5th DCA 2006) ............................................................ 33, 37

Williams v. State, 932 So. 2d 1233 (Fla. 1st DCA 2006) .................................................................. 26

Statutes 

§ 768.20, Fla. Stat. ................................................................................................... 27

§ 768.73(2)(a), Fla. Stat. ............................................................................................ 2

§ 768.73(2)(b), Fla. Stat. ..................................................................................... 2, 13

§ 768.73(2), Fla. Stat. ....................................................................................... passim

vii

§ 768.73(5), Fla. Stat. ....................................................................................... passim

§ 768.73, Fla. Stat. (1995) ........................................................................................ 19

§ 768.73, Fla. Stat. (1997) ........................................................................................ 19

§ 768.73, Fla. Stat. (1999) ........................................................................................ 19

§ 768.74(3), Fla. Stat. ............................................................................................... 32

§ 768.74, Fla. Stat. ................................................................................................... 32

§ 95.031, Fla. Stat. ................................................................................................... 25

Rules 

Fla. R. Civ. P. 1.190 .............................................................................. 23, 24, 25, 26

Other Authorities 

Thomas D. Sawaya, 6 Fla. Prac., Personal Injury & Wrongful Death Actions (2016-17 ed.) ............... 2

1

STATEMENT OF THE CASE AND OF THE FACTS

In this Engle progeny case, a jury awarded Plaintiff Alan Konzelman $8.5

million in compensatory damages for the wrongful death of his wife, Elaine

Konzelman, and $20 million in punitive damages against Defendant R.J. Reynolds

Tobacco Company. Reynolds raises two issues in this appeal. First, the trial

court refused to apply Florida’s statutory bar against successive awards of

punitive damages arising out of the same course of conduct, even though Plaintiff

admitted that Reynolds had already paid more than $165 million in punitive

damages in prior Engle cases alleging harm from the “exact same conduct”

alleged in this case.

Second, the trial court should have remitted the excessive $8.5 non-

economic damages award, which was 70 percent more than Plaintiff’s own

counsel requested, was far more than the evidence could possibly support, and

likely was influenced by the volumes of inflammatory evidence the trial court

allowed Plaintiff to present to the jury on the theory that it was relevant to prove

reprehensibility—evidence that was unconnected to Mrs. Konzelman and would

not have come in but for the trial court’s refusal to apply the statutory bar. The

Court should reverse the punitive damages verdict and remand for a substantial

remittitur or a new trial on compensatory damages.

2

A. The Bar Against Cumulative Awards of Punitive Damages

On October 1, 1999, the Legislature amended the statutes governing

punitive damages. Before then, “[t]here ha[d] been much debate” about “whether

a defendant may be subjected to multiple punitive damage awards for the same

conduct which injures more than one victim.” Thomas D. Sawaya, 6 Fla. Prac.,

Personal Injury & Wrongful Death Actions § 15:8 (2016-17 ed.). “The Florida

legislature, however, decided that it was time to end that debate by enacting Fla.

Stat. § 768.73(2)(a) . . . .” Id. That statute bars an award of punitive damages if

the defendant establishes before trial that such damages “have previously been

awarded against [it] in any state or federal court in any action alleging harm from

the same act or single course of conduct for which the claimant seeks

compensatory damages.” § 768.73(2)(a), Fla. Stat. If the defendant makes this

showing, the trial court can allow punitive damages only if it “determines by clear

and convincing evidence that the amount of prior punitive damages awarded was

insufficient to punish that defendant’s behavior.” § 768.73(2)(b).

If a court concludes that further punishment is necessary, the statute

provides that “[a]ny subsequent punitive damage awards must be reduced by the

amount of any earlier punitive damage awards rendered in state or federal court.”

Id. The Legislature specified that these provisions “shall be applied to all causes

of action arising after the [October 1, 1999] effective date.” § 768.73(5).

3

B. Plaintiff’s Lawsuit

In October 2007, Elaine Konzelman brought suit against Reynolds, alleging

that she suffered from chronic obstructive pulmonary disease (“COPD”) caused

by smoking cigarettes manufactured by Reynolds. Mrs. Konzelman died from

that disease on March 22, 2010, more than ten years after the Legislature enacted

section 768.73(2) to bar cumulative punitive damages awards. T.2.279.1 In May

2011, Plaintiff, as personal representative of Mrs. Konzelman’s estate, filed an

amended complaint seeking damages under the Wrongful Death Act. R.12-13.

Relying exclusively on the res judicata effect of findings in Engle v. Liggett Grp.,

Inc., 945 So. 2d 1246 (Fla. 2006), Plaintiff asserted claims for strict liability,

negligence, fraud, and breach of warranties, all based on the allegation that Mrs.

Konzelman “died” as a direct and proximate result of Reynolds’s allegedly

tortious conduct. R.9-13. Plaintiff also asserted an alternative survival claim

(R.13), but he abandoned it after the parties stipulated that smoking caused Mrs.

Konzelman’s death, see T.2.374-75. Thus, the only claim in this case was for

wrongful death. T.15.2764 (trial court agreeing that “this is a wrongful death

case. It’s not a—it’s not a personal injury action”).

In 2015, Plaintiff sought the trial court’s leave to amend his complaint to

add a demand for punitive damages. Plaintiff reiterated that he was relying on the 1 The trial transcript is cited as “T.[Volume]:[Page].” The record is cited as “R.[Page].” Appendix A contains all trial transcript excerpts cited in this brief.

4

conduct findings made in Engle, pointing out that Florida appellate courts “have

routinely affirmed and approved substantial punitive damage awards against the

Defendant tobacco companies for the exact same conduct that is alleged in this

lawsuit” and specifically referencing several prior Engle cases. R.587 (emphasis

added). The trial court granted leave for Plaintiff to request punitive damages.

C. Reynolds Invokes Section 768.73

Before trial, Reynolds invoked section 768.73’s bar against cumulative

punitive damages awards. Reynolds’s Notice of Invocation stated that Plaintiff’s

wrongful death claim arose in 2010 when Mrs. Konzelman died and was therefore

governed by the current (post-1999) version of section 768.73. Reynolds further

showed that it had paid more than $165 million in punitive damages in 23

different Engle progeny cases alleging harm from the same course of conduct

alleged in this case, with additional awards pending on appeal. R.4322-4339.2

Based on these facts, Reynolds explained that the current (post-1999) version of

section 768.73(2) barred Plaintiff from seeking punitive damages. R.4322-4324.

Plaintiff did not file a written response to Reynolds’s notice. Instead, he

adopted a response filed by a different plaintiff in an earlier Broward County

Engle case, which had argued that the pre-1999 version of the statute governed

Engle progeny wrongful death cases even where the decedent died after October

2 Since Reynolds submitted its notice of invocation in August 2016 the total number has risen to $220 million paid in 28 cases.

5

1, 1999. R.7861-7968. In that earlier case, the same trial court had denied

Reynolds’s invocation of section 768.73 even though it acknowledged that this

Court’s decision in Nationwide v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA

1994), holds that wrongful death cases are governed by the statutory law in effect

at the time of death and therefore “clearly seems to indicate a different result” than

the one the trial court reached. R.11116. The trial court’s basis for refusing to

apply the post-1999 version of the statute was that Nationwide was “not a class

action, Engle progeny case.” R.11116.

During the pre-trial argument in this case, Reynolds urged the trial court to

revisit its conclusion that the post-1999 statute does not apply. The court

subsequently issued a written order rejecting Reynolds’s invocation of section

768.73, reasoning that Plaintiff’s Wrongful Death Act complaint “relates back to

the filing of the initial complaint” and “further relates back to the filing of the

original Engle class action, such that the pre-1999 version of Section 768.73

applies to the instant action.” R.11044-45. Reynolds moved for reconsideration,

explaining (1) that the relation-back doctrine does not apply between two different

cases, and Plaintiff’s individual progeny action thus cannot “relate back” to the

Engle complaint; and (2) that the relation-back doctrine merely governs the

timeliness of an amended complaint and therefore cannot affect when Plaintiff’s

6

wrongful death claim accrued or what substantive law applies to that claim.

R.11138-11148.

After studying Reynolds’s submission, the trial court acknowledged that its

relation-back reasoning (which Plaintiff never advanced or defended) was

“flaw[ed]” and granted rehearing. T.16:2786; T.19:3387. But over Reynolds’s

objection, the court deferred the invocation of section 768.73(2) to a post-trial

hearing. This allowed Plaintiff to present inflammatory evidence supposedly

relevant to show “reprehensibility” and allowed the jury to award Plaintiff $20

million in punitive damages.

D. Evidence Relevant to Non-Economic Damages

Plaintiff sought non-economic damages for the loss of his wife’s

“companionship and protection, and his mental pain and suffering” as a result of

her injury and death. T.19:3415. The evidence showed the following: after

graduating from the Merchant Marine Academy in 1950, Plaintiff began to work

as an engineer on seagoing merchant vessels, often serving as much as 50 days at

a time on board. T.13:2268. In 1981, during a stop in Hawaii, he met his future

wife Elaine in the jewelry store where she worked. T.13.2272. After a long-

distance relationship that lasted a little more than a year, the two married on New

Year’s Eve in 1982 and settled in Florida. T.13.2273. It was his fourth marriage

and her second. T.13.2330-31.

7

Plaintiff’s long stretches at sea continued after his marriage; his work

records, introduced at trial, indicated that he was gone as much as 50 percent of

the time. T.13.2267-69, 2329-31. During his absences, the Konzelmans would

communicate only sporadically, mostly by phone when he was in

port. T.13.2339-40. These absences continued once Mrs. Konzelman was

diagnosed with COPD in 1995. Id. During her illness, Mrs. Konzelman was

frequently admitted for as much as six months at a time to assisted living facilities

in Florida and—at the insistence of her children, who lived there—in California,

though Plaintiff continued to reside in Florida. T.13.2290-91. Plaintiff’s counsel

later argued that during Mrs. Konzelman’s illness, “there were times where

[Plaintiff] was away and there was times when he came back,” and that he worked

to support his wife. T.19.3486.

The only concrete evidence Plaintiff offered regarding his efforts to care for

Mrs. Konzelman during her illness was his testimony that he had to “push her in

the wheelchair and help her in and out of the wheelchair, help get her in and out of

bed.” T.13.2287. He also testified that he missed his wife because she was “a

great companion to me” and that they were “[v]ery compatible” and “had so much

in common as far as our interests,” including travel. T.13.2292. Since his wife’s

death, Plaintiff has reconnected with a woman he knew before his marriage to

8

Mrs. Konzelman and has taken trips to Italy and the Caribbean with

her. T.13.2351-52.

In closing, Plaintiff’s counsel argued that even though the Konzelmans

were separated for much of their marriage, “when they were together, they were

together and they traveled and they had a wonderful, great, great

life.” T.19.3485. Counsel argued that Plaintiff “was there for [his wife] and he

took care of her” and suggested that $5 million in non-economic damages was

appropriate, calling it a “significant” and “substantial number.” T.19.3486.

E. Jury Verdicts and Post-Trial Motions

The jury awarded Plaintiff $295,000 in economic damages (a stipulated

amount) and $8.5 million in non-economic damages—$3.5 million more than the

“significant” and “substantial number” Plaintiff had requested. T.22.3806. The

jury found that punitive damages were warranted, T.21.3659, and in phase two

awarded Plaintiff an additional $20 million in punitive damages, T.22.3835, again

much more than the $14 million his counsel had requested, see T.22.3806-07.

Reynolds filed a motion to set aside the verdict in accordance with its

directed verdict motions and alternatively sought a new trial. Reynolds further

asked the trial court to either remit the excessive compensatory damages award or

grant a new trial on damages. R.11649, 11715. Finally, Reynolds renewed its

request that the court apply section 768.73’s bar against cumulative punitive

9

damages claims—the issue the trial court had deferred to a post-trial hearing.

After hearing argument, the trial court denied all of Reynolds’s post-trial motions

by signing Plaintiff’s proposed order without any further comment. R.11992,

found at Appendix B. The order offered no explanation of why the court refused

to apply section 768.73’s bar; it merely cited this Court’s opinion in R.J. Reynolds

Tobacco Co. v. Buonomo, where the parties had agreed that the pre-1999 version

of the statute applied.

SUMMARY OF ARGUMENT

I. Section 768.73 bars successive punitive damages awards when

multiple cases allege harm from the same course of conduct. Here, Plaintiff

admitted that Reynolds has paid more than $165 million in punitive damages in

prior Engle cases alleging harm from the “same exact course of conduct” that

Plaintiff alleged in this case. Section 768.73(2) therefore foreclosed Plaintiff from

recovering punitive damages in this case.

Rather than follow this legislative command, the trial court concluded that

this case was controlled by the pre-1999 version of section 768.73, which did not

bar successive awards of punitive damages for the same conduct. That was error.

Section 768.73’s statutory bar applies by its plain text to all causes of action

accruing after October 1, 1999, and Plaintiff’s cause of action for the wrongful

death of Mrs. Konzelman accrued when Mrs. Konzelman died in 2010. Because

10

Plaintiff’s cause of action accrued after October 1, 1999, the current version of

section 768.73 with the statutory bar applied.

The trial court’s ruling to the contrary (and a recent First District decision

reaching a similar result) violated established Florida precedent holding (1) that a

cause of action for wrongful death accrues at the time of death, and (2) that courts

must apply the version of section 768.73 in effect at the time the cause of action

accrues. This Court’s decision in Nationwide v. MacDonald, 645 So. 2d 1057

(Fla. 4th DCA 1994), leaves no doubt that wrongful death cases are governed by

the substantive law in effect at the time of death, and not the law in effect at the

time the decedent first began suffering from the injury. Id. at 1058. The trial

court therefore erred in applying the law in effect when Mrs. Konzelman began

suffering from COPD in the mid-1990s. Even the trial court has acknowledged

that applying the pre-1999 version in these circumstances would “conflict with”

Nationwide, which “clearly seems to indicate a different result” than the one the

court reached here.

The trial court’s error resulted in precisely what the Legislature sought to

prevent: a $20 million punitive damages award piled on top of other, massive

punitive damages that Reynolds has already paid. The same decades-old public

statements, internal tobacco industry documents, and corporate decisions that

prior Engle plaintiffs relied on in obtaining punitive awards exceeding $165

11

million were again front and center in this case—and the trial court allowed the

jury to punish Reynolds yet again for that “same exact course of conduct.” The

trial court’s decision to allow Plaintiff to seek and the jury to award punitive

damages was contrary to Florida law and cannot stand.

II. The Court should vacate the $8.5 million award of compensatory

non-economic damages and either remit the award or order a new trial on

damages. The evidence did not support an award of this size, and the fact that it

greatly exceeded the $5 million Plaintiff urged the jury to award suggests that it

was the product of passion and prejudice, likely stoked by the volumes of

inflammatory evidence—unconnected to Mrs. Konzelman—that the trial court

allowed Plaintiff to present under the guise of proving reprehensibility to support

punitive damages.

III. Reynolds preserves its objections to Plaintiff’s use of the Engle Phase

I findings to establish essential elements of his claims, but it recognizes that its

objections are foreclosed by precedent.

12

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT REFUSED TO APPLY FLORIDA’S BAR AGAINST SUCCESSIVE AWARDS OF PUNITIVE DAMAGES BASED ON THE SAME CONDUCT

A. Standard of Review

The interpretation of a statute is a legal issue this Court considers de novo,

with no deference to the trial court. See Matos v. State, 899 So. 2d 403, 408 (Fla.

4th DCA 2005).

B. Section 768.73(2) Barred Plaintiff from Seeking or Recovering Punitive Damages

Section 768.73(2) bars duplicative punitive damages awards when multiple

cases allege harm from the same course of conduct. Two observations make clear

that the statute prohibited Plaintiff from seeking punitive damages in this case:

1. Subsection (2)(a) of section 768.73 provides that “punitive damages

may not be awarded against a defendant in a civil action if that defendant

establishes, before trial, that punitive damages have previously been awarded

against that defendant in any state or federal court in any action alleging harm

from the same act or single course of conduct for which the claimant seeks

compensatory damages.” Here, there is no question that subsection (2)(a) barred

Plaintiff’s request for punitive damages. Before trial, Reynolds established that it

had paid in excess of $165 million in punitive damages in prior Engle progeny

cases alleging harm from the same course of conduct that Plaintiff alleged here.

13

R.11614-29. Far from disputing this fact, Plaintiff told the trial court when

seeking leave to amend to request punitive damages that prior Engle progeny

appellate decisions “have routinely affirmed and approved substantial punitive

damage awards against [Reynolds] for the exact same conduct that is alleged in

this lawsuit.” R.587 (emphasis added). As examples of cases where punitive

damages were awarded “for the exact same conduct that is alleged in this lawsuit,”

Plaintiff listed the Engle cases Mrozek, Alexander, Cohen, Kayton (Tate), Martin,

and Putney, see R.587, which are among the 23 cases Reynolds listed in support

of its invocation of section 768.73(2), see R.587-90. Accordingly, subsection

(2)(a)’s bar applied here.

2. If a defendant makes the showing required in subsection (2)(a), “a

court may permit a jury to consider an award of subsequent punitive damages”

only if the exception in subsection (2)(b) applies. That exception requires the trial

court to determine “by clear and convincing evidence that the amount of prior

punitive damages awarded was insufficient to punish that defendant’s behavior.”

§ 768.73(2)(b). But even if the trial court concludes that further punishment is

necessary, the last sentence of subsection (2)(b) provides that “[a]ny subsequent

punitive damage awards must be reduced by the amount of any earlier punitive

damage awards rendered in state or federal court.” Id.

14

In this case, the exception in subsection (2)(b) played no role at all.

Plaintiff admitted “that the prior awards paid by R[eynolds] exceed the [$20

million] award in this case.” R.11853. Thus, any attempt to overcome the

presumptive bar by showing that further punishment is necessary under subsection

(2)(b) would have been futile, as the last sentence of that provision obligated the

trial court to reduce the $20 million award to zero. In fact, any constitutionally

permissible amount of punitive damages that a jury could have awarded in this

case would have been eclipsed by the more than $165 million that Reynolds has

already paid in prior cases. See, e.g., R.J. Reynolds Tobacco Co. v. Townsend, 90

So. 3d 307, 314 (Fla. 1st DCA 2012) (holding that $40.8 million punitive damages

award was unconstitutionally excessive).

Section 768.73(2) therefore barred Plaintiff’s request for punitive damages

from the outset, because there was never any possibility that Plaintiff could

recover a constitutionally permissible award that would not have been fully offset

by the more than $165 million Reynolds previously had paid “for the exact same

conduct.” R.587. The trial court thus erred not just in allowing the $20 million

punitive damages award to stand, but in allowing Plaintiff to seek punitive

damages at trial in the first place. The latter error resulted in the court admitting

volumes of inflammatory evidence of tobacco industry conduct that Plaintiff

argued was relevant to prove “reprehensibility,” which likely contributed to the

15

excessive compensatory damages award—confirming the wisdom of the

Legislature’s directive to decide the applicability of section 768.73(2) “before

trial.”

C. The Current Version of Section 768.73(2) Applies in this Case

Instead of applying section 768.73(2) as set forth above, the trial court

concluded that this case was governed by the pre-1999 version of the statute,

which did not bar duplicative claims for punitive damages. The trial court was

wrong, because the pre-1999 version ceased to have effect more than ten years

before Plaintiff’s cause of action accrued upon Mrs. Konzelman’s death in 2010.

As explained below, the current version, with the statutory bar, became effective

on October 1, 1999 and controlled in this case:

1. Section 768.73 states that its provisions “shall be applied to all causes

of action arising after the effective date of this act.” § 768.73(5). Consistent with

this legislative directive, Florida courts routinely apply the version of section

768.73 that was in effect at the time the plaintiff’s underlying cause of action

accrued. See St. John v. Coisman, 799 So. 2d 1110, 1113 (Fla. 5th DCA 2001)

(“The applicable Florida statute is the 1993 version of section 768.73, because that

is the statute in effect when this cause of action arose.”); Sun Intern. Bahamas,

Ltd. v. Wagner, 758 So. 2d 1190, 1191 (Fla. 3d DCA 2000) (holding “that the

punitive damages award must be remitted . . . pursuant to section 768.73, Florida

16

Statutes (1997) (the version of the statute, since substantially amended, applicable

to Wagner’s case)”); cf. Estate of Despain v. Avante Grp., Inc., 900 So. 2d 637,

641 n.3 (Fla. 5th DCA 2005) (declining to apply the post-1999 version of section

768.72 “[b]ecause the cause of action in the instant case accrued prior to” the

October 1, 1999 effective date). That rule is consistent with Supreme Court

precedent holding that “a demand for punitive damages is not a separate and

distinct cause of action; rather it is auxiliary to, and dependent upon, the existence

of an underlying claim.” Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219,

1221 (Fla. 2016). Determining which version of section 768.73 applies therefore

requires determining when a plaintiff’s underlying cause of action accrued.

2. In this case, Plaintiff’s only cause of action was brought pursuant to

the Wrongful Death Act.3 Florida law is clear that a “cause of action for wrongful

death accrues on the date of death.” Fulton Cty. Adm’r v. Sullivan, 753 So. 2d

549, 552 (Fla. 1999). See also Nationwide, 645 So. 2d at 1058 (holding that cause

of action for wrongful death accrues at the time of the decedent’s death); Moorey

v. Eytchison & Hoppes, Inc., 338 So. 2d 558, 559 (Fla. 2d DCA 1976) (same);

Walker v. Beech Aircraft Corp., 320 So. 2d 418, 420 (Fla. 3d DCA 1975) (same).

Plaintiff’s claims therefore accrued when Mrs. Konzelman died on March 22,

3 As noted earlier, Plaintiff originally pled an alternative survival action, but he abandoned that cause of action before trial when the parties stipulated that smoking Reynolds’s cigarettes was a legal cause of Mrs. Konzelman’s COPD and death.

17

2010, which means that this case is governed by the statutory law in effect in

2010, including the current (post-1999) version of section 768.73. See §

768.73(5), Fla. Stat.; Coisman, 799 So. 2d at 1113; Wagner, 758 So. 2d at 1191;

Despain, 900 So. 2d at 641 n.3; Shadd v. R.J. Reynolds Tobacco Co., 2017 WL

1959998, **2-3 (Fla. 15th Cir. Ct. April 12, 2017) (concluding that the date of

death controls which version of section 768.73 applies in a wrongful death case).

This Court’s decision in Nationwide is controlling on this point. There, the

decedent was injured in a car accident in 1989 and died from those injuries in

1992. See 645 So. 2d at 1057. In between the injury and death, the Legislature

amended the Wrongful Death Act, providing that the amendment “was effective

October 1, 1990, and applied to causes of action accruing on or after that date.”

Id. at 1058. Recognizing that “[a] cause of action for wrongful death accrues on

the date of the decedent’s death,” this Court held that the 1990 amendment of the

statute controlled the rights of the parties because the decedent died in 1992, two

years after the amendment became effective. Id. In so holding, this Court

specifically rejected the argument that the case was governed by the pre-

amendment law because the decedent first began suffering from his injury before

the amendment. Id. Instead, the date of death controlled. Id.

Nationwide leaves no doubt that Plaintiff’s ability to recover punitive

damages is controlled by the version of section 768.73 in effect at the time of Mrs.

18

Konzelman’s death in 2010, and not by the pre-1999 version that was in effect

when she first developed COPD in the mid-1990s. As Judge Meenu Sasser in

Palm Beach County has concluded, Nationwide compels the application of the

current (post-1999) version when the decedent in a wrongful death case died after

October 1, 1999, regardless of whether the decedent began suffering from a

smoking-related disease before that date. See Shadd, 2017 WL 1959998, **2-3.

Indeed, the trial court in this case admitted in an earlier Engle progeny case that

Nationwide “clearly seems to indicate a different result” than the one it reached

here. R.11116. That observation was correct: like the statute at issue in

Nationwide, the Legislature provided that the current version of section 768.73

“shall be applied to all causes of action arising after the [October 1, 1999]

effective date.” § 768.73(5), Fla. Stat. Because Plaintiff’s only cause of action

arose in 2010, the version of the statute in effect in 2010 applied, including the bar

against duplicative punitive damages awards for the same conduct.

D. The Trial Court’s Citation to R.J. Reynolds Tobacco Co. v. Buonomo Was Misplaced

As explained earlier, supra at 6, the trial court recognized that its initial

order denying Reynolds’s invocation of section 768.73 was “flaw[ed]” and

deferred the issue for post-trial consideration. Following post-trial briefing and

argument, the trial court signed Plaintiff’s proposed order, which stated simply

“Denied” with a citation to R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d

19

1049 (Fla. 4th DCA 2013), quashed on other grounds sub nom. 2016 WL 374082

(Fla. 2016). R.11992. But Buonomo does not support the trial court’s ruling.

Buonomo did not analyze which version of section 768.73 applies to a wrongful

death case where the decedent dies after 1999. It did not discuss the longstanding

rule that a wrongful death claim accrues on the death of the decedent or even cite

Nationwide. Rather, it noted that the parties in that case did not dispute that the

pre-1999 version of the statute applied: “It is, however, the 1995 version of the

statute that governs the instant case—a fact the parties do not dispute.” Buonomo,

138 So. 3d at 1052.4

Buonomo therefore does not bind the Court here or release it from its

obligation to follow Nationwide. See, e.g., Carr v. Carr, 569 So. 2d 903, 903

(Fla. 4th DCA 1990) (panels of this Court “must follow the law of our own cases

4 The issue in Buonomo was not the bar on successive punitive awards—which exists only in the post-1999 version of section 768.73—but rather the statute’s 3:1 ratio limit—a limit that existed, albeit in different form, in the pre-1999 version as well. Compare § 768.73, Fla. Stat. (1995) and § 768.73, Fla. Stat. (1997) with § 768.73, Fla. Stat. (1999); see Buonomo, 138 So. 3d at 1052-53. Plaintiff had asserted in the trial court that the 1995 version of the statute applied, and Reynolds argued that the trial court’s reduction of the punitive award to a 3:1 ratio with the compensatory award was required under that version of the statute. See Appendix C3, Reply Brief / Answer Brief on Cross Appeal of Appellant R.J. Reynolds Tobacco Company in R.J. Reynolds v. Buonomo at 33-35. Reynolds would request that the Court take judicial notice of this brief. See Arnold Lumber Co. v. Harris, 503 So. 2d 925 (Fla. 1st DCA 1987) (the court may properly take judicial notice of briefs in another appeal to flesh out what the opinion in that case did not reveal). Counsel for Plaintiff has no objection to Reynolds making the request for judicial notice in the brief instead of by a separately filed request.

20

until we are overruled or until we recede from them” after en banc consideration).

Nor does it negate this Court’s obligation to apply section 768.73’s clear language

or excuse it from following binding Florida Supreme Court precedent holding

both that a wrongful death cause of action accrues at the time of death, e.g.,

Sullivan, 753 So. 2d at 552, and that courts must apply the version of the statute in

effect when the cause of action accrued, e.g., D’Angelo v. Fitzmaurice, 863 So. 2d

311, 314 n.9 (Fla. 2003).

E. Plaintiff’s Arguments To the Trial Court and the First District’s Recent Decision in Allen Are Incorrect and Conflict With Established Florida Law, including Nationwide

Plaintiff offered the trial court a smorgasbord of reasons why it should

apply the pre-1999 version of section 768.73 despite established Florida law to the

contrary. In R.J. Reynolds Tobacco Co. v. Allen, -- So. 3d ---, 2017 WL 729817

(Fla. 1st DCA Feb. 24, 2017) (motion for rehearing pending), a panel of the First

District recently relied on several of those reasons in applying the pre-1999

version of sections 768.72 and 768.73(1) even though the decedent in that case

died in 2009. With respect, the Allen panel got it wrong. Although it recognized

that “[t]ypically, the applicable version of a statute is the one in effect when the

cause of action arose,” and that in wrongful death actions “the cause of action

accrues on the date of a decedent’s death,” it concluded that Engle progeny cases

21

are just “different.” 2017 WL 729817, at *4 (citations and quotations omitted).5

In reaching this remarkable conclusion—that courts can disregard established

legal rules that apply to all other cases and treat Engle cases differently—the panel

overlooked or misapprehended several legal principles, and its decision conflicts

with decisions of the Florida Supreme Court, this Court, and other District Courts

of Appeal:

1. The Allen panel’s assertion that Engle cases are somehow “different”

and exempt from the “typical” legal rules is contrary to the Florida Supreme

Court’s assurances that the Engle defendants would not be treated differently than

any other civil litigant. See Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419,

432 (Fla. 2013) (“[T]he Engle defendants receive the same process as any civil

defendant.”). Depriving the Engle defendants of the application of the law that

applies to all other litigants is patently unfair and runs afoul of the basic premise

that the class action device cannot be used to alter or abridge the substantive rights

of the parties. See Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1138 (Fla.

3d DCA 2008) (citing and quoting with approval several cases holding that “due

5 Allen reached this conclusion on facts similar to those here: a disease that manifested before 1999 and caused the smoker’s death after the October 1, 1999 effective date of the amendments to the statute. It did not address the situation where the disease that caused the smoker’s death manifested after the October 1, 1999 effective date of the amendments.

22

process requires that class actions not be used to diminish the substantive rights of

any party to the litigation” (internal quotation marks omitted)).

Even further, the Allen panel’s ad hoc distinction disregards section

768.73’s command that the current version “shall be applied to all causes of action

arising after” its October 1, 1999 effective date. § 768.73(5), Fla. Stat. (emphasis

added). Excluding Engle cases even where, as here, the plaintiff’s sole cause of

action accrued after October 1, 1999 is irreconcilable with this plain language.

See Charles v. S. Baptist Hosp. of Fla., Inc., 209 So. 3d 1199, 1206-07 (Fla. 2017)

(plain language controls when the statute is unambiguous); Shadd, 2017 WL

1959998, at *4 (explaining that Allen’s holding “appears contrary to the plain

language of section 768.73(2)” because “the statute makes no special exception

for Engle cases”).

2. The Allen panel reasoned that the pre-1999 version of section 768.73

applies in Engle cases because Engle requires class members to prove a class-

qualifying disease that manifested on or before the November 21, 1996 class cut-

off date. 2017 WL 729817, at **4-5. But that analysis mistakenly conflates

manifestation of an Engle qualifying disease with the accrual of a plaintiff’s cause

of action. Addressing this very issue in R.J. Reynolds Tobacco Co. v. Ciccone,

190 So. 3d 1028 (Fla. 2016), the Supreme Court held that disease manifestation

for class membership purposes has nothing to do with when a cause of action

23

accrues—“[a]ccrual is simply not the relevant inquiry for determining Engle class

membership.” Id. at 1039. That is because “the policy undergirding the

‘manifestation’ of an injury for the accrual of a cause of action is not the same as

the policy rationale for the ‘manifestation’ requirement to establish Engle class

membership.” Id. Instead, the Supreme Court held that manifestation for class

membership purposes requires only a showing that the smoker “began suffering

from or experiencing symptoms” of the disease before the class cut-off date. Id. at

1041. That a decedent’s disease manifested within the class period is thus

irrelevant in determining when a wrongful death cause of action accrued and

which version of the statute governs the claim. The Allen panel badly misread

Ciccone.

3. The Allen panel also reasoned that the pre-1999 version of section

768.73 applied because “the applicable statutory law” relates back to the filing of

the Engle class action complaint in 1994. 2017 WL 729817, at *5. Although

Plaintiff here never advanced this rationale, the trial court sua sponte adopted it in

its initial order. R.11043-11045. But after Reynolds moved for reconsideration

and Plaintiff would not defend the trial court’s relation-back rationale, see

R.11263-11272, the trial court granted rehearing and acknowledged that its

reasoning was “flaw[ed],” T.16.2786. Two points illustrate why:

24

a. The relation-back doctrine cannot connect an Engle progeny

plaintiff’s individual lawsuit to the Engle class filing. Rule 1.190(c) embodies

Florida’s relation-back doctrine and applies only to “amended and supplemental

pleadings” filed in the same case. See Fla. R. Civ. P. 1.190. The rule’s language

specifically refers to an amended pleading relating back to an original pleading:

“When the claim or defense asserted in the amended pleading arose out of the

conduct, transaction, or occurrence set forth or attempted to be set forth in the

original pleading, the amendment shall relate back to the date of the original

pleading.” Fla. R. Civ. P. 1.190(c) (emphasis added). The title and text of the

rule make clear that the relation-back doctrine applies only to amended pleadings

filed in the same case—not to a new and different case.

The Allen panel was therefore plainly incorrect to suggest that Allen’s

complaint related back to the filing of the Engle class complaint. 2017 WL

729817, at *5. Neither Allen’s complaint nor Plaintiff’s complaint in this case

was an amended pleading filed in the Engle case. Instead, the Engle case became

final when the Supreme Court issued its mandate in January 2007; the Court

decertified the class and then required each progeny plaintiff “to file a new

complaint and go through the procedural morass of initiating a new cause of

action.” Soffer, 187 So. 3d at 1228 (emphases added); Engle, 945 So. 2d at 1277.

And that is what the plaintiff did in Allen and what Plaintiff did here—they filed

25

new, individual cases under new case numbers. Rule 1.190 therefore plays no role

in the relationship between the original Engle case and these progeny cases; the

rule does not apply between two different cases filed under two different case

numbers. See J & S Installation Specialist, Inc. v. Mabry, 857 So. 2d 346, 348

(Fla. 2d DCA 2003) (holding that “[t]he filing of the second action did not ‘relate

back’ to the date of the filing of the first action”).

b. In any event, the relation-back doctrine does not change the

date of accrual of the cause of action or control the statutory law that governs it.

Rather, it merely allows a plaintiff to file an amended complaint “after the statute

of limitations has run” if the amended complaint arose from the same transaction

or occurrence as the original timely-filed complaint. Schachner v. Sandler, 616

So. 2d 166, 167 (Fla. 4th DCA 1993); Kopel v. Kopel, --- So. 3d ---, 2017 WL

372074, at *2 (Fla. Jan. 26, 2017) (“An amended complaint raising claims for

which the statute of limitations has expired can survive a motion to dismiss if the

claims relate back to the timely filed initial pleading.”). But that does not change

the date that the claim accrued, which occurs when “the last element constituting

the cause of action occurs.” § 95.031, Fla. Stat.

For that reason, relation-back cases like Roden v. R.J. Reynolds Tobacco

Co., 145 So. 3d 183 (Fla. 4th DCA 2014) (cited by the trial court here), and In re:

Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014) (cited by the panel in Allen),

26

are inapposite. In both cases, the courts held that a wrongful death claim related

back to the original personal injury claim for purposes of determining whether the

statute of limitations had run on the wrongful death claim. See Roden, 145 So. 3d

at 187; In re: Engle Cases, 45 F. Supp. 3d at 1360-61. But the question of when

the wrongful death claim had accrued or which law would govern it was not at

issue in either Roden or In re: Engle Cases, for the simple reason that claims

accrual and relation-back are separate and distinct issues. The only role Rule

1.190 could have played in Allen (or in this case) would have been to allow an

amended wrongful death complaint after the limitations period had expired.

The Allen panel’s expansion of Rule 1.190(c) is unprecedented and

incorrect. No other Florida appellate decision has ever allowed this procedural

rule to serve any purpose other than to authorize the filing of an amended

complaint after the statute of limitations has run. Rule 1.190(c) does not control

when a wrongful death claim accrues or the substantive law that governs that

claim. See State v. Dorian, 619 So. 2d 311, 313 (Fla. 3d DCA 1993) (“Unlike

statutes, rules of procedure do not create substantive rights.”), disapproved on

other grounds, 642 So. 2d 1359 (Fla. 1994); Williams v. State, 932 So. 2d 1233,

1237 (Fla. 1st DCA 2006) (“Substantive law creates substantive rights; rules of

procedure, however, merely provide the remedies to enforce rights.” (quotations

omitted)).

27

4. The Allen panel was also wrong to find support in R.J. Reynolds

Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), review granted,

2016 WL 3127698 (Fla. May 26, 2016). See Allen, 2017 WL 729817, at *5. In

Schoeff, this Court concluded that the 1992 version of the comparative fault

statute applied because the cause of action accrued when the decedent’s cancer

was diagnosed in 1994. See 178 So. 3d at 492 n.3. But the dispute in Schoeff was

not about whether the Court should look to the date of death or the date of injury

to determine which version of the comparative fault statute applied. Rather, the

issue was whether the court could apply the 2011 version of the statute because

the Legislature had included a retroactivity clause. R.11954, 11959. Neither side

in Schoeff argued that the Court should look to the date of death in deciding which

version of the statute applied. R.11954, 11959, 11949-50. That was for good

reason: The decedent in Schoeff died in 1995 (R.11963), a year after his diagnosis

in 1994, which meant that the same version of the statute was in effect at the time

of injury and at the time of death. Schoeff has no bearing here.

5. The Allen panel further reasoned that the plaintiff’s wrongful death

claim was governed by the pre-1999 version of section 768.73 because her

husband’s personal injury claim would have been governed by the pre-1999

version had he not died. See 2017 WL 729817, at *5. That conclusion is contrary

to the Wrongful Death Act, which expressly provides that “when a personal injury

28

to the decedent results in death, no action for the personal injury shall survive, and

any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. It

also conflicts with the Supreme Court’s clear holding that a claim under the

wrongful death act is not a continuation of the decedent’s pre-death personal

injury claim, but a “distinct right of action from the right of action the decedent

had prior to death.” Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 111 (Fla.

2002) (citing cases). See also Fla. E. Coast Rwy. v. McRoberts, 149 So. 631, 633

(Fla. 1933) (Wrongful Death Act claim is “a totally new right of action for the

wrongful death” from decedent’s prior personal injury claim that proceeds “on

different principles”).

As the Supreme Court has explained, the Wrongful Death Act created “in

the expressly enumerated beneficiaries an entirely new cause of action, in an

entirely new right, for the recovery of damages suffered by them, not the

decedent, as a consequence of the wrongful invasion of their legal right by the

tortfeasor.” Toombs, 833 So. 2d at 112 (quotations omitted). Critical to the issue

here, the Wrongful Death Act does not “transfer . . . the right of action which the

injured party might have maintained for his injury had he lived.” Id. at 111-12;

Lee v. CSX Transp., Inc., 958 So. 2d 578, 582 (Fla. 2d DCA 2007) (same). If the

Allen panel’s logic were right, then a wrongful death claimant could recover

damages for the decedent’s pain and suffering; after all, the decedent could have

29

recovered those damages had he not died. But that is just not Florida law—a

wrongful death claimant does not have the same rights and remedies as a plaintiff

suing for personal injury.

6. The Allen panel likewise was wrong to conclude that applying the

current (post-1999) version of section 768.73 would violate the plaintiff’s

substantive rights because the decedent’s personal injury action would have been

governed by the pre-1999 version which was more favorable to the plaintiff. See

2017 WL 729817, at *5. That reasoning conflicts with Nationwide, where this

Court held that applying a statutory amendment that became effective after the

decedent’s injury but before her death does not amount to a retrospective

application in a wrongful death case and therefore does not violate any substantive

rights. See 645 So. 2d at 1058; see also Shadd, 2017 WL 1959998, *4 (observing

that Allen conflicts with Nationwide).

Far from “impair[ing]” any substantive rights, applying the current statute

acknowledges the substantive rights that the plaintiff actually has. And there is

nothing “inequitable,” see Allen, 2017 WL 729817, at *5 n.7, about allowing

plaintiffs to seek only those damages to which they are legally entitled. This is

particularly true with respect to punitive damages, given that the Legislature “may

place conditions upon [the] recovery [of punitive damages] or even abolish it

altogether.” Gordon v. State, 608 So. 2d 800, 801 (Fla. 1992). Exercising that

30

legislative authority does not violate any substantive rights unless an amendment

is applied retrospectively. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d

1352, 1358 (Fla. 1994). Applying the 1999 amendment to section 768.73 to a

cause of action that accrued more than ten years later in 2010 is obviously

prospective and therefore does not impair any substantive rights. Nationwide, 645

So. 2d at 1058.

7. As a result of its unprecedented and incorrect analysis, the panel

opinion in Allen conflicts both with numerous cases holding that a wrongful death

cause of action accrues at the time of death, e.g., Sullivan, 753 So. 2d at 552;

Walker, 320 So. 2d at 420; Moorey, 338 So. 2d at 559; Lee, 958 So. 2d at 580, and

with scores of cases holding that courts must apply the version of the statute in

effect when the cause of action accrues, e.g., D’Angelo, 863 So. 2d at 314 n.9;

Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002), including

the relevant version of Florida’s punitive damages statute, e.g., Estate of Despain,

900 So. 2d at 641 n.3; Coisman, 799 So. 2d at 1113; Wagner, 758 So. 2d at 1191,

which provides explicitly that it “shall be applied to all causes of action arising

after the [October 1, 1999] effective date,” § 768.73(5), Fla. Stat. The Allen

panel’s conclusion (and the trial court’s ruling in this case) is irreconcilable with

the statute and the established body of case law addressing the accrual of claims

and the applicability of amendments.

31

* * * * *

The Florida Legislature decided to limit successive awards of punitive

damages when multiple cases allege harm from the same course of conduct. Yet

the trial court “ignore[d] what the legislature has declared to be the public policy

of this state,” Kantaras v. Kantaras, 884 So. 2d 155, 159 (Fla. 2d DCA 2004)

(quotation marks omitted), when it allowed the jury to award $20 million in

punitive damages against Reynolds even though Plaintiff admitted that Reynolds

had previously paid more than $165 million in punitive damages “for the exact

same conduct that is alleged in this lawsuit.” R.11614.

Reynolds was entitled to application of the law that existed when Plaintiff’s

cause of action accrued in 2010. This Court should reject as patently unlawful

any special exception to the “typical” application of Florida law judicially created

just to deprive the Engle defendants of the benefit of the current version of section

768.73(2) to which all other defendants are entitled. The trial court was not free

to circumvent the Legislature’s command by applying an outdated version of the

statute that ceased to have effect more than ten years before Plaintiff’s only cause

of action accrued. The $20 million punitive damages award cannot stand.

32

II. REYNOLDS IS ENTITLED TO A SUBSTANTIAL REMITTITUR OR A NEW TRIAL ON COMPENSATORY DAMAGES

A. Standard of Review and Legal Principles

This Court reviews “an order denying a motion for remittitur or a new trial

under an abuse of discretion standard.” R.J. Reynolds Tobacco Co. v. Odom, 210

So. 3d 696, 698-99 (Fla. 4th DCA 2016) (quotations omitted). If the damages are

excessive, then “remittitur or new trial on damages is the remedy,” ITT Hartford

Ins. Co. v. Owens, 816 So. 2d 572, 576 (Fla. 2002), because “[i]t is the plain duty

of the court to see that the just limits [of a jury award] are not exceeded,”

Gresham v. Courson, 177 So. 2d 33, 38 (Fla. 1st DCA 1965) (quotation marks

omitted). See also Bould v. Touchette, 349 So. 2d 1181, 1184-85 (Fla. 1977) (a

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”). In fact, the judicial power to set aside an excessive damages

award is “one of the historic safeguards . . . without which the jury system would

be a capricious and intolerable tyranny, which no people could long endure.”

Bartholf v. Baker, 71 So. 2d 480, 484 (Fla. 1954) (en banc) (quotation marks

omitted) (emphasis omitted).

Florida law thus subjects damages awards to “close scrutiny by the courts”

to ensure that they are “adequate and not excessive.” § 768.74(3), Fla. Stat. To

that end, section 768.74 provides criteria for reviewing a damages award,

33

including whether the “amount awarded is supported by the evidence” and “could

be adduced in a logical manner,” whether the amount “is indicative of prejudice,

passion, or corruption,” and whether it “bears a reasonable relation to the amount

of damages proved and the injury suffered.” § 768.74, Fla. Stat.

“Under Florida law an award of non-economic damages must ‘bear a

reasonable relation to the philosophy and general trend of prior decisions in such

cases.” Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 470 (Fla. 4th DCA

2016) (citation omitted). But even if an award is similar to other affirmed awards,

the Court must examine the record critically to ensure it rests on “a proper

evidentiary basis.” Townsend, 90 So. 3d at 312. This means that for non-

economic damages in particular, courts must ensure that an award has a “logical

nexus in deduction or analogy to the amount of pain and suffering incurred,” and

should vacate an award and grant remittitur or a new trial where that nexus is not

demonstrated. Werneck v. Worrall, 918 So. 2d 383, 388 (Fla. 5th DCA 2006) (per

curiam); see also R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 336 (Fla. 1st

DCA 2012) (court should not permit a jury to award non-economic damages

greater “than what is reasonably supported by the evidence at trial”); Johnson v.

United States, 780 F.2d 902, 908 (11th Cir. 1986) (applying Florida law and

vacating an award of, inter alia, non-economic damages because there was

“nothing in the record before the district court to justify the amount of damages

34

awarded”). “[A] greater degree of skepticism” is called for when a court reviews

“mega-noneconomic damage awards in cases such as this.” R.J. Reynolds

Tobacco Co. v. Smith, 131 So. 3d 18, 19-20 (Fla. 1st DCA 2013) (Wetherell, J.,

concurring).

B. The Evidence Did Not Support an Award of $8.5 Million in Non-Economic Damages

Here, the jury awarded $8.5 million in non-economic compensatory

damages, 70 percent more than the $5 million requested by Plaintiff’s counsel, an

amount he described as “substantial,” T.19.3487—which itself is an indication

that the award was the product of passion and emotion, and not one that “a jury of

reasonable men could have returned.” Webb, 93 So. 3d at 336; id. at 339 (when

determining whether an award is excessive, reviewing courts may take into

account fact that the jury exceeded the plaintiff’s requested amount).

This excessive award was plainly unsupported by the thin evidence of loss

presented in this case. By his own admission, Plaintiff was apart from his wife for

as much as half the time they were married, and when he was at sea the two

communicated infrequently. T.13.2329-30. Even when Mrs. Konzelman became

too incapacitated to care for herself, these absences continued, and she was cared

for by her children from a previous marriage or placed in assisted care facilities, at

times in a different state, for as much as six months at a time. T.13.2341.

35

Further, Plaintiff’s testimony relating to the emotional damages he

sustained consisted of a few brief paragraphs: he missed his wife’s

“companionship” because they were “very compatible [and] had so much in

common [and] enjoyed the same things,” such as travelling. T.13.2292. There

was no other testimony from friends or family concerning the depth of Plaintiff’s

grief or its impact on his life. And Plaintiff has not been forced to give up favorite

activities or face growing old alone. Instead, he now travels in the company of a

female friend he knew before his marriage to Mrs. Konzelman, see T.13.2351-52,

which provides at least some degree of the “affection, solace, comfort,

companionship, conjugal life, fellowship, society and assistance” that is otherwise

lost with a spouse’s death, see City of St. Petersburg v. Hackman, 672 So. 2d 42,

45 (Fla. 2d DCA 1996).

To be sure, Florida courts have affirmed non-economic damage awards to

surviving spouses as high as $10.8 million in three Engle progeny wrongful death

cases. See Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012),

quashed sub nom. R.J. Reynolds Tobacco Co. v. Cohen, No. SC13-35, 2016 WL

375143 (Fla. Jan. 29, 2016) ($10 million); Townsend, 90 So. 3d at 314 (Fla. 1st

DCA 2012) ($10.8 million); Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67

(Fla. 3d DCA 2013) ($10 million). But the evidence of suffering and loss in this

case is in distinct contrast to the evidence in those cases. For example, in Cohen,

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this Court affirmed a $10 million award of non-economic damages in a case

where evidence of both the surviving spouse’s care for her husband and the

emotional damage wrought by his death was extensive and compelling. 102 So.

3d at 19. The evidence showed that the Cohens were “constant companions” who

had been married for more than 40 years at the time of Mr. Cohen’s death. Id.

Mrs. Cohen “tore both of her rotator cuffs” caring for her dying husband, and she

testified that “the emotional injury” of her husband’s death “was worse than the

physical pain” she endured caring for him. Id. She did not remarry in the 16

years between his death and the trial and therefore faced the prospect of

“grow[ing] old alone.” Id.

Likewise, in Townsend, a divided panel of the First District barely upheld a

$10.8 million non-economic award to a surviving spouse that even the majority

described as “certainly at the outer limit of reasonableness.” 90 So. 3d at 312. In

that case, Mrs. Townsend lost her 59-year-old husband after 39 years of marriage,

just as they were about to retire “and realize their life-long dream of traveling

together.” Id. She cared for him “as he lay dying during the final six months” of

his life, never recovered from the “acute impact” of his death, never remarried,

and thus had spent some 17 years mourning the loss by the time of trial. Id.

While caring for her husband, she was also “required to . . . work to provide

support for the couple while Mr. Townsend traveled to Chicago for medical

37

treatment and surgery relating to his lung cancer,” and the evidence showed that

“Mr. Townsend’s suffering and premature death at age 59 from smoking . . . had,

and is likely to continue to have, an acute impact on [her] for the rest of her life.”

Id. Finally, in Alexander, the court affirmed an award of $10 million in a case

described as “almost identical” to Townsend, where the surviving spouse acted as

“nurse and primary caretaker” of the decedent “until his painful death,” by which

time the decedent “was incontinent and could no longer move or breathe without

help.” 123 So. 3d at 71.

While there is no question that Plaintiff suffered a tragic loss, none of the

factors highlighted by the courts in these extreme cases is present here: Plaintiff

was not his wife’s primary nurse or caretaker during her illness and suffered no

physical injuries caring for her. Unlike the decedent in Townsend, Mrs.

Konzelman did not die prematurely, but lived to the age of 80. And the thin

evidence of emotional loss here falls far short of the depth and intensity of the

evidence courts have pointed to in affirming awards at the outer edge of

reasonableness in other cases. Taken together, the evidence of Plaintiff’s limited

involvement in his wife’s care during her illness and the equally limited evidence

of emotional damages fail to establish the required “logical nexus” between the

$8.5 million awarded and “the amount of pain and suffering incurred.” Werneck,

918 So. 2d at 388.

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C. The Admission of Irrelevant “Reprehensibility” Evidence Inflamed the Jury’s Prejudices and Likely Influenced It To Award Excessive Compensatory Damages

Given the lack of evidence to support the $8.5 million award to Plaintiff,

the jury’s verdict “could only have been a product of passion and emotion.”

Glabman v. De La Cruz, 954 So. 2d 60, 63 (Fla. 3d DCA 2007). The likely

source of that “passion and emotion” was the volumes of inflammatory evidence

the trial court allowed Plaintiff to present to the jury under the guise of proving

reprehensibility—evidence that plainly would have been irrelevant and

inadmissible had the trial court properly excluded punitive damages from the case

under section 768.73.6 It is well settled that jury passion can be inferred when an

excessively large award is unsupported by record evidence. See MBL Life Assur.

Corp. v. Suarez, 768 So. 2d 1129, 1136 (Fla. 3d DCA 2000) ($1 million award to

each adult child was unsupported by evidence and thus “could only have been a

product of passions and emotions” (quotation marks omitted)); Lassitter v. Int'l

Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla. 1976) (remittitur

appropriate where the award “is so great or small as to indicate that the jury must

6 To be clear, Reynolds does not agree that this evidence—which had no connection to Mrs. Konzelman—would have been admissible to prove reprehensibility even if punitive damages had properly been in the case. But this evidence certainly would have been inadmissible if the trial court had applied the correct version of section 768.73. The court’s error in allowing Plaintiff’s request for punitive damages to be part of the trial thus affected the jury’s compensatory damages verdict as well.

39

have found it while under the influence of passion, prejudice, or gross mistake”).

This is particularly true in a tobacco case like this one, where courts have already

recognized that “prejudice against the tobacco companies, a present-day popular

villain, [can] interfere[] with the jury’s ability to assess the damages based on a

reasonable view of the evidence.” Philip Morris Inc. v. French, 897 So. 2d 480,

487 (Fla. 3d DCA 2004). Plaintiff fed into this prejudice by presenting volumes

of explosive evidence concerning tobacco industry conduct under the guise of

proving reprehensibility, which would have never come into the case if the trial

court had correctly applied section 768.73(2)’s bar against Plaintiff’s request for

punitive damages. See supra, Section I.

For example, Plaintiff presented evidence and argument regarding the

annual and cumulative numbers of smoking-related deaths since 1964. Before

trial, Reynolds sought to exclude this evidence, and Plaintiff argued that it was

admissible as evidence of reprehensible conduct, emphasizing that “the fact that

smoking does kill X amount of people per year and [tobacco companies] deny that

. . . is reprehensible.” T.2.356. The court denied Reynolds’s motion,

acknowledging that “there is no similarity [between Reynolds’s alleged conduct in

this case and the conduct that caused the prior deaths] as to addiction or other

health aspects of the parties,” but finding that the evidence was admissible to

40

show reprehensibility because “there is sufficient similarity that it was smoking

caused deaths.” T.4:948-49.

This ruling opened the door to testimony about the aggregate number of

smoking-related deaths at every stage of the trial. In his opening, Plaintiff’s

counsel repeatedly asserted that “[t]obacco use causes more deaths in our country

than HIV, alcohol use, cocaine use, homicide, suicides, motor vehicle crashes,

fires combined . . . . 20 million people have died, including Elaine Konzelman,

since 1964.” T.5.1013. Plaintiff continued to emphasize this point through his

expert witness, Dr. K. Michael Cummings. T.7.1455 (“Q. Doctor, how many

people have died from smoking-related illness since 1964? A. Over 20 million.”).

Counsel returned to this theme in closing argument in the first phase of the trial,

asking the jury, “[Y]ou heard there is 500,000 deaths every year from smoking-

related diseases. All right?” T.19.3429; see also T.19.3479. Finally, Plaintiff’s

counsel repeated these arguments during the second phase of the trial, in which

the jury considered the amount of punitive damages to award. T.22.3799 (arguing

that “the amount of untold suffering of the 500,000 people that die each year or

the 20 million that have died since the 1960s, that had a huge, huge impact on not

just [Plaintiff’s] family, but families around—across this country. I mean,

unimaginable, that conduct. They did not care who they hurt. They didn’t care.”).

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None of this “reprehensibility” evidence would have been admissible had

the trial court properly applied section 768.73 and excluded punitive damages

from the trial. This evidence appealed to the jury’s passion and prejudice,

resulting in a non-economic damages award that far exceeded Plaintiff’s own

requested award and likely included elements of punishment, contrary to Florida

law. See Philip Morris USA, Inc. v. Naugle, 103 So. 3d 944, 948 (Fla. 4th DCA

2012) (ordering a new trial on damages where a large damage award was

“indicative of improper influences of passion and prejudice” and “likely

include[ed] punishment for non-party harms in awarding punitive damages”); see

also Webb, 93 So. 3d at 339; Nat’l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653

So. 2d 1055, 1059 (Fla. 4th DCA 1995) (awards that exceed counsel’s request

may be the result of passion or prejudice). The Court should vacate the $8.5

million award and remand for a substantial remittitur or a new trial on

compensatory damages.

III. REYNOLDS PRESERVES ITS CONSTITUTIONAL CLAIMS REGARDING THE USE OF THE ENGLE FINDINGS.

Reynolds respectfully preserves its contention that allowing Plaintiff to use

the Engle findings to prove the conduct elements of his individual claims violates

Reynolds’s federal constitutional right to due process of law. Reynolds

recognizes that the Supreme Court found differently with respect to product defect

and negligence claims. See Douglas, 110 So. 3d at 432.

42

Even if it were not a due process violation to use the Engle findings to

establish defect and negligence in favor of Plaintiff, Douglas did not address

concealment and conspiracy to conceal claims. In Engle, it was alleged that the

defendants concealed multiple facts over multiple different time frames. The jury

needed to find only one concealed fact to rule against the defendants. No one

knows what fact or facts the Engle jury found had been concealed, so there is no

way to tell whether the concealment found by the Engle jury has any relevance to

Plaintiff’s claims. Pretending that the Engle verdict means more than it says

amounts to imposing liability on Reynolds based on imaginary findings in

violation of the Due Process Clause. Furthermore, even were it permissible for

Plaintiff to use the Engle findings to prove conduct elements (which is not the

case), Plaintiff waived any right to rely on those findings by introducing evidence

of allegedly tortious conduct by Reynolds. Introducing evidence in an attempt to

prove tortious conduct is fundamentally inconsistent with invoking preclusion

principles.

CONCLUSION

For all of the reasons set forth above, the Court should reverse the punitive

damages verdict and remand for a substantial remittitur or a new trial on

compensatory damages.

Respectfully submitted.

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/s/ Val Leppert William L. Durham II Florida Bar No. 91028 Val Leppert Florida Bar No. 97996 KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100

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CERTIFICATE OF SERVICE

I HERE CERTIFY that a true and correct copy of the foregoing initial brief

was e-filed in this Court and served by electronic mail to all counsel of record this

2nd day of June, 2017.

/s/ Val Leppert

Attorney for Appellant R.J. Reynolds Tobacco Company

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CERTIFICATE OF COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), counsel for

Appellant hereby certifies that the foregoing brief complies with the applicable

font requirements because it is written in 14-point Times New Roman font.

DATED: June 2, 2017.

/s/ Val Leppert Attorney for Appellant R.J. Reynolds Tobacco Company