R.J. Reynolds Tobacco Co. v. Evers

• Decision Date: 15 September 2017
• Docket Number: Case No. 2D16–1603
• Citation: 232 So.3d 457
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Cindy EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellee.
• Court: Florida District Court of Appeals

232 So.3d 457

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Cindy EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellee.

Case No. 2D16–1603

District Court of Appeal of Florida, Second District.

Opinion filed September 15, 2017.

Rehearing Denied January 3, 2018

Gregory G. Katsas and John M. Gore of Jones Day, Washington, D.C. (withdrew after briefing); John M. Walker of Jones Day, Atlanta, Georgia; Troy A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellant.

Hendrick Uiterwyk of Abrahamson & Uiterwyk, Tampa; Michael J. Trentalange of Trentalange & Kelley, P.A., Tampa; Celene H. Humphries, Maegen P. Luke, and Thomas Seider of Brannock & Humphries, Tampa, for Appellee.

MORRIS, Judge.

R.J. Reynolds Tobacco Company (R.J. Reynolds) appeals a second amended final judgment entered in favor of Cindy Evers, in her capacity as personal representative of the Estate of Jacqueline Loyd. Evers' wrongful death action was predicated on claims that Loyd was an Engle ¹ class member and that Loyd's lung cancer was, at least in part, caused by R.J. Reynolds and Lorillard Tobacco Company (for whom R.J. Reynolds is the successor in interest).

In bifurcated proceedings, a jury determined that Evers was entitled to both noneconomic compensatory damages and punitive damages (as against R.J. Reynolds only). The trial court subsequently directed a verdict in favor of R.J. Reynolds on certain claims, and as a result, the punitive damages award was vacated and the compensatory damages award was reduced. Evers appealed and R.J. Reynolds cross-appealed. See Evers v. R.J. Reynolds Tobacco Co., 195 So.3d 1139 (Fla. 2d DCA 2015).

In the first appeal, we reversed the directed verdict, thereby reinstating the punitive damages award. Id. at 1141. However, we declined to reach certain issues pertaining to the punitive damages award because those issues had not been ruled on by the trial court. Id. at 1141 n.2. On remand, the trial court entered the second amended final judgment, finding that the pre–1999 version of the punitive damages statute applied and that there was clear and convincing evidence supporting a punitive damages award in excess of the statutory cap. The trial court also concluded that the action was based on an intentional tort making the compensatory damages award ineligible for a comparative fault reduction. Finally, upon Evers' motion, the trial court concluded that interest on the judgment accrued from May 15, 2013, the date of the original judgment.

Although R.J. Reynolds raises numerous arguments on appeal, the issue of whether the compensatory damages award must be reduced by the percentage of Loyd's comparative fault is controlled by our recent opinion in Philip Morris USA Inc. v. Boatright, 217 So.3d 166 (Fla. 2d DCA 2017), appeal filed, SC17–894 (Fla. May 12, 2017). Therefore we will not address it further. However, as in Boatright, we certify conflict with R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), and the line of cases relying on it² to the extent that they hold that the core of these types of actions are grounded in negligence and that the comparative fault statute is applicable to reduce the verdict by the smoker's comparative fault. R.J. Reynolds also asks this court to revisit two arguments raised in the prior appeal regarding improper closing arguments made by Evers' counsel and the trial court's failure to give a jury instruction on a conspiracy claim. We decline to do so. R.J. Reynolds also argues that allowing res judicata to apply to the phase I Engle findings³ violates R.J. Reynolds' due process rights, but it acknowledges that issue has already been determined by case law, and it wishes to preserve the issue for further review. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 436 (Fla. 2013) (holding that the acceptance of the Engle findings as res judicata does not violate an Engle defendant's right to due process).

Instead, we affirm the decision of the trial court in all respects, and we write only to address the issues of the application of the pre–1999 version of the punitive damages statute and the evidence offered in support thereof and the award of interest dating back to the date of the original final judgment.

BACKGROUND

Evers sued R.J. Reynolds in 2007, alleging that her mother had been a member of the class prospectively certified in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The Engle class comprised all Florida residents who, as of November 21, 1996, suffered or had died from diseases caused by an addiction to cigarettes. See id. at 1274. Evers' amended complaint alleged claims of negligence, strict liability, fraudulent concealment, and conspiracy to commit fraudulent concealment. Prior to trial, the trial court ruled that Evers could only seek punitive damages on her claims for concealment and conspiracy.

At the end of the first phase of the trial, the jury determined that Loyd was an Engle class member and that Evers was entitled to recover on all of her claims. The jury allocated thirty-one percent of the fault to Loyd, sixty percent to R.J. Reynolds, and nine percent to Lorillard, and the jury awarded $2,950,000 to Evers for noneconomic compensatory damages. At the end of the second phase of the trial, the jury awarded $12,360,024 in punitive damages as they related to Evers' conspiracy and concealment claims. The trial court subsequently directed a verdict in R.J. Reynolds' favor on the concealment and conspiracy claims, thereby vacating the punitive damages award. The trial court also reduced the compensatory damages award to $2,035,500 to reflect the jury's allocation of comparative fault.

After this court reversed the directed verdict on appeal and the case was remanded, Evers moved for entry of judgment in the full amount of the jury's compensatory and punitive damages amounts. R.J. Reynolds opposed the motion, arguing in relevant part that the post–1999 statutory cap on punitive damages applied to this case.⁴ Ultimately, the trial court entered the second amended final judgment, awarding Evers the original compensatory and punitive damages award amounts. After Evers filed a subsequent motion to amend, the trial court awarded interest accruing from the date of the original final judgment.

ANALYSIS

I. The trial court properly applied section 768.73(1)(a) and (b), Florida Statutes (1995), to the punitive damages award.

We first address R.J. Reynolds' argument that the jury's punitive damages award should be capped at an amount that is three times the compensatory damages award amount. R.J. Reynolds contends that the post-1999 version of section 768.73 is applicable because Evers' wrongful death action is based on Loyd's death in 2007. See Ch. 99–225, § 23(5), at 1418, Laws of Fla. (explaining that 1999 amendments apply only to "all causes of action arising after the effective date of this act," which was October 1, 1999). And R.J. Reynolds argues that in order to exceed the statutory cap pursuant to the post–1999 version, the jury was required to make findings regarding certain aggravating circumstances, which did not occur in this case. In the alternative, R.J. Reynolds argues that even if the pre–1999 version of the statute applied, the same three-to-one cap applied unless Evers proved by clear and convincing evidence that the award was not excessive, and R.J. Reynolds asserts that she failed to do so.

"Typically, the applicable version of a statute is the one ‘in effect when the cause of action arose.’ " R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D491, D493, ––– So.3d ––––, 2017 WL 729817 (Fla. 1st DCA Feb. 24, 2017), (first quoting D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 n.9 (Fla. 2003) ; and then citing §§ 768.72(4) & 768.73(5), Fla. Stat.), reh'g granted (June 15, 2017).⁵ And "[i]n many wrongful death actions, the cause of action accrues on the date of a decedent's death." Id. (citing Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So.2d 1057 (Fla. 4th DCA 1994) ). "However, Engle-progeny cases are different." Id. (citing Engle, 945 So.2d 1246 ).

In order for a case to qualify as an Engle-progeny case, "a plaintiff's (or plaintiff's decedent's) ‘symptoms of a tobacco-related disease or medical condition’ must have manifested by November 21, 1996." Id. (citing R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1030 (Fla. 2016) ). Here, Evers' amended complaint alleged that Loyd suffered from or was diagnosed with one or more of the diseases enumerated in Engle on or before November 21, 1996. And there is no dispute that the jury determined that Loyd was an Engle class member. Thus, Evers, as the personal representative of Loyd's estate, "qualified for the res judicata benefits of the Engle class." Id.; see also Toombs v. Alamo Rent–A–Car, Inc., 833 So.2d 109, 118 (Fla. 2002) (quoting Celotex Corp. v. Meehan, 523 So.2d 141, 147 (Fla. 1988), for the proposition that "[a] wrongful death action is derivative of the injured person's right, while living, to recover for personal injury"); Schoeff, 178 So.3d at 492 n.3 (concluding, in an Engle-progeny case, that plaintiff's cause of action in a wrongful death case accrued in 1994 when her husband was diagnosed with lung cancer ).

Although it was Evers who sought damages in this case—rather than Loyd—Evers' wrongful death action, like all Engle-progeny complaints, relates back to the 1994 Engle class-action complaint. Consequently, "the applicable statutory law [regarding punitive damages] also relates back to the Engle class." Allen, 42 Fla. L. Weekly at D493, ––– So.3d at ––––. This is because "a claim for punitive damages is not a separate, free-standing cause of action," but is instead "actually dependent on the underlying cause of action." Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1229–30 (Fla. 2016). To the extent that R.J. Reynolds'...