R.J. Reynolds Tobacco Co. v. Sury

• Decision Date: 21 August 2013
• Docket Number: No. 1D12–2110.,1D12–2110.
• Citation: 118 So.3d 849
• Parties: R.J. REYNOLDS TOBACCO COMPANY and Lorillard Tobacco Company, Appellant, v. Robert SURY, as Personal Representative for the Estate of William Sury, Appellee.
• Court: Florida District Court of Appeals

118 So.3d 849

R.J. REYNOLDS TOBACCO COMPANY and Lorillard Tobacco Company, Appellant,

v.Robert SURY, as Personal Representative for the Estate of William Sury, Appellee.

No. 1D12–2110.

District Court of Appeal of Florida, First District.

June 24, 2013.

Rehearing Denied Aug. 21, 2013.

Robert B. Parrish of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, for Appellant.

John S. Mills, Tallahassee and John S. Kalil, Jacksonville, for Appellee.

CLARK, J.

R.J. Reynolds Tobacco Company (“RJR”) appeals the amended final judgment for plaintiff Dr. Robert Sury, the personal representative of the estate of William Sury. We affirm the amended final judgment in all respects, but write to address the issue of apportionment of the damage award in light of the multiple causes of action, the jury verdict, and the applicability of section 786.81, Florida Statutes.

In November, 2007, Appellee, Dr. Robert Sury, along with several other plaintiffs, commenced a lawsuit against RJR and Lorillard Tobacco Co. by filing the initial complaint in Bowman v. R.J. Reynolds Tobacco Co., Case No.2007 CA 011175 (4th Cir. Duval County). Although the elder Mr. Sury died in 1997, Dr. Sury and the other plaintiffs brought their suit as authorized by Engle v. Liggett Group, Inc., 945 So.2d 1246, 1274 (Fla.2006).¹

Dr. Sury proceeded to trial on his Third Amended Complaint (Complaint), seeking damages for the wrongful death of his father due to lung cancer resulting from Mr. Sury's addiction to cigarettes containing nicotine. The Complaint included counts for: strict liability; negligence; fraud and fraudulent concealment; civil conspiracy; breach of express and implied warranties; successor liability; and punitive damages. In the Complaint, Dr. Sury acknowledged that his father shared some fault for his smoking-related injuries and he therefore sought “potential apportionmentof fault and damages on all counts other than those alleging intentional torts.”

After the lengthy trial, the jury returned a verdict for plaintiff Dr. Robert Sury. The jury specifically found that both RJR and Lorillard were negligent and strictly liable for placing the defective product (cigarettes) on the market. Considering the intentional torts of fraudulent concealment and civil conspiracy to fraudulently conceal, the jury made particular findings that both companies' fraudulent acts were the legal cause of Mr. Sury's death. The jury assigned contributory fault, finding the decedent Mr. Sury 60% at fault, RJR 20% at fault, and Lorillard Tobacco 20% at fault. The jury determined that plaintiff Robert Sury suffered $1 million in damages for the loss of his father. The jury declined to award any punitive damages.

The issue of apportionment of the damage award was raised by the parties when they submitted their respective proposed final judgments and presented argument to the court. The plaintiff urged the court to award the entire $1 million against the defendants jointly and severally because the jury found liability on both the negligent tort counts and the intentional tort counts. The defendants countered that the plaintiff had waived any objection to apportionment of the award because Plaintiff acknowledged throughout the trial that his father shared some fault for his choice to smoke cigarettes and failure to overcome his addiction. In addition to waiver, the defendants argued that this case was essentially a products liability claim and that section 768.81, Florida Statutes, required reduction of the award according to the contributory fault found by the jury.

After hearing argument on the motion, the trial court discussed its reasoning and the opinion in Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986), and concluded that section 768.81, Florida Statutes, did not require apportionment of damages for intentional torts, such as fraudulent concealment and civil conspiracy to fraudulently conceal in this case. The trial court also rejected the defendants' waiver argument. In its Amended Final Judgment, the trial court awarded Dr. Sury the full $1 million, against RJR and Lorillard Tobacco Co. “jointly and severally.”

The trial court properly rejected the defendants' claim that Dr. Sury waived the award of unreduced damages. While acknowledging the decedent's partial responsibility for his injuries and death resulting from his smoking behavior and failure to overcome his eventual addiction to cigarettes containing nicotine, the plaintiff's Complaint clearly and specifically sought “potential apportionment of fault and damages on all counts other than those alleging intentional torts.” Dr. Sury never argued to the jury or the court that the damages for his father's terminal illness should be reduced by his portion of fault. The defendants were on notice from the date of the Complaint that Dr. Sury alleged intentional torts as well as negligent torts. Further, the defendants agreed to the verdict form which listed each cause of action, including the intentional torts, and requested the jury to indicate whether the defendants had committed each individual tort or not.

As recognized in Smith v. R.J. Reynolds Tobacco Co., No. 3:09–cv–10048 (M.D.Fla. May 2, 2013), the respective roles of the jury and of the court are separate and distinct. The jury was properly tasked with determining RJR's liability or lack thereof, and if liable, the particular legal theory or theories under which it determined liability. The jury was properly requested to determine a total damage amount. The jury was not, and need not have been, instructed about the legal consequences attached to the classification of each tort in terms of the damages awarded.The application of the law to the facts found by the jury, including any apportionment of the actual award, was properly left to the court. There was no inkling that the jury failed to follow the jury instructions or otherwise deliberated improperly.

Applying the law to the facts found by the jury, the trial court properly ruled that section 768.81, Florida Statutes, did not require reduction of the damages awarded in this case, where the jury found the defendants liable under...