Smith v. R.J. Reynolds Tobacco Co.

• Decision Date: 25 January 2018
• Docket Number: No. 13-14316,13-14316
• Citation: 880 F.3d 1272
• Parties: James SMITH, Sr., Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

880 F.3d 1272

James SMITH, Sr., Plaintiff-Appellee,

v.R.J. REYNOLDS TOBACCO COMPANY, et al., Defendant-Appellant.

No. 13-14316

United States Court of Appeals, Eleventh Circuit.

January 25, 2018

Kathryn E. Barnett, Law Office of Morgan & Morgan, Nashville, TN, Janna M. Blasingame, Stephanie J. Hartley, Richard Lantinberg, Norwood Wilner, The Wilner Firm, PA, Jacksonville, FL, Kenneth S. Byrd, Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein, LLP, Nashville, TN, Elizabeth Joan Cabraser, Jordan S. Elias, Richard M. Heimann, Kent L. Klaudt, Sarah Robin London, Jerome Mayer-Cantu, Scott Purington Nealey, Robert J. Nelson, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, DirecTV, Inc., Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Charles Easa Farah, Jr., Farah & Farah, PA, Jacksonville, FL, Samuel Issacharoff, New York University School of Law, New York, NY, for Plaintiff-Appellee.

Stephanie Ethel Parker, Jason Todd Burnette, Michael F. Stoer, John F. Yarber, Jones Day, Atlanta, GA, Paul D. Clement, Kirkland & Ellis, LLP, Washington, DC, Charles Richard Allan Morse, Jones Day, New York, NY, Robert B. Parrish, Jeffrey Alan Yarbrough, Moseley Prichard Parrish Knight & Jones, Jacksonville, FL, for Defendant-Appellant R.J. Reynolds Tobacco Company.

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

JULIE CARNES:

This is an Engle progeny case¹ brought by plaintiff James Smith, Sr. against defendant R.J. Reynolds Tobacco Co. ("Defendant") to recover damages based on the death of his wife, Wanette Smith, from tobacco-related diseases caused by Mrs. Smith’s decades-long history of smoking Defendant’s cigarettes. We face only one issue:² whether the district court should have reduced the jury’s compensatory damages award based on the degree of fault the jury attributed to Mrs. Smith.

I. Issues in This Appeal

In his wrongful death action, Smith asserted both intentional tort claims (fraudulent concealment and conspiracy to fraudulently conceal) and "non-intentional" tort claims (negligence and strict liability). In a negligence action in which both parties have acted negligently, Florida law requires that the plaintiff’s damages be reduced proportionately to the plaintiff’s own fault in causing his injuries. By its own terms, however, the Florida statute requiring such reduction is not applicable to an action based on an intentional tort.

The jury found for Smith on all claims—including the intentional tort claims—awarding him $600,000 in compensatory damages and $20,000 in punitive damages. Responding to the court’s instruction that required it to gauge the degree of responsibility Mrs. Smith bore for her injuries, the jury assessed Mrs. Smith with 45% of the fault, laying the remaining 55% of blame on Defendant. Defendant argued that, given this jury finding, the compensatory damages should be reduced by 45%, resulting in a compensatory damages award of $330,000. The district court, however, agreed with Smith that because there were intentional tort claims on which Smith prevailed, Defendant was not entitled to a reduction of the compensatory damages award. Defendant contends that the district court misapplied Florida law.

Second, even if Florida’s comparative negligence statute disallows a reduction of the jury’s compensatory damages figure based on Smith’s comparative fault, Defendant contends that Smith nonetheless forfeited his ability to insist on adherence to Florida law because Smith suggested to the jury that any award they made would be reduced based on his wife’s own negligence.

Defendant says that besides misleading the jury, Smith’s insistence that his wife’s own fault should be something the jury considered in arriving at a decision on damages permitted Smith to bolster his own position and gain favor with the jury, notwithstanding his actual position before the court that there could be no reduction of damages if the jury found Defendant liable on the intentional tort claims. Moreover, Defendant complains, the district court instructed the jury that it would reduce the award based on the jury’s finding of any fault on Mrs. Smith’s part, but then reversed course after the verdict and ignored its own instruction. In essence, Defendant argues that, combined with Smith’s disingenuous argument, the court’s instruction likely impacted the jury’s calculation of the compensatory damages award. Defendant contends that the court should have kept its word and reduced the damages award, as it told the jury it would do.

As to Defendant’s first argument, the Florida Supreme Court has recently resolved an intermediate appellate court split and ruled Smith’s way: when a complaint in an Engle case contains both negligence and intentional tort claims, a plaintiff’s success on an intentional tort claim—no matter whether the action in its entirety could arguably be characterized as a negligence action—defeats a defendant’s claim to reduction of a compensatory damages award based on the plaintiff’s degree of fault.

As to the district court’s misleading instruction to the jury, that instruction was in fact incorrect. But because it was Defendant who requested this instruction—not Smith, who requested an instruction that would have more accurately explained to the jury the possibility that its proportional assessment might have no effect on the damages award—Defendant cannot now complain. And as to Smith’s concession to the jury that it should consider Mrs. Smith’s own fault and attribute an appropriate percentage of responsibility to her—which also happened to be Defendant’s argument—we conclude that Smith’s argument was consistent with the very instruction that Defendant had requested. We find no waiver by Smith. Accordingly, we affirm the district court’s decision not to reduce the compensatory damages award. We explain.

II. Trial Proceedings Giving Rise to the Alleged Error

Per his complaint, Smith envisioned that comparative negligence by his deceased wife would be an appropriate matter for the jury to determine. Although the parties do not focus on the evidence at trial on this subject, it is clear from a review of the closing arguments that evidence was elicited concerning Mrs. Smith’s own responsibility for her injuries. What is important in understanding the present issues is the position each party took as to the appropriate instructions to give the jury on this matter.

The first thing worth noting is that neither party requested the instructions one might expect if one assumes that a plaintiff typically seeks to obtain the highest possible award for compensatory damages from the jury and that a defendant aims for the lowest award. That is, underlying Defendant’s arguments here is the fear that, in trying to decide something as subjective as the monetary value of a given person’s life, if a jury is told that the monetary value it sets will be reduced by whatever percentage of responsibility it assigns to the plaintiff, the jury may tend to go higher in pegging that life’s value than it might otherwise find warranted because the jury knows that this valuation is not the number that will ultimately control. So—particularly when it is uncertain whether the trial court will actually be permitted to reduce a damages award based on a jury’s finding of comparative fault—it follows that a defendant would likely want the jury informed that its percentage reduction might never be applied so that the jury will understand the significance of the number it assigns to the value of the plaintiff’s life and will not go higher than what it actually thinks that value to be, which a defendant would fear the jury otherwise might do if it expects that its award will be reduced by the percentage it has designated. Likewise, under the same circumstances, a plaintiff might well prefer that the jury believe the value it ascribes to the decedent’s life will definitely be reduced by the percentage of fault ascribed to the latter: hoping that the jury may well go higher on its valuation assessment than it would were there no possibility of a reduction based on the decedent’s fault.

Yet, in this case—for reasons perhaps understandable on Plaintiff’s part but less so on Defendant’s part—the parties played against type, going the opposite direction than that indicated above. Specifically, in his first proposed instruction, Smith requested that the court reveal to the jury that allocating a percentage of fault to Mrs. Smith would not necessarily mean that the compensatory damages would be reduced. Smith indicated that instructions in other Engle cases had been more cryptic on this matter and that "to reflect Florida law and to avoid any confusion, [Smith’s] Proposed Instructions and Verdict Form do not state that damages for all claims will be reduced by the percentage of fault on the decedent ..." Instead, Smith recommended that the following instruction should be given:

Allocating a percentage of fault to [decedent’s name] will only reduce the amount of the recovery on some claims. Under the law, some claims are subject to reduction due to the fault of the claimant and others are not. In other words, if you find that [decedent’s name] was, for example, 50% responsible for [his/her] own death, you would fill in that percentage as your finding on the verdict form. The Court will enter a judgment based on your verdict and on entering judgment will make any reduction required by law to reduce the damages by the percentage of fault that you find is chargeable to [decedent’s name].

Defendant’s proposed instructions, however, were silent as to any possibility that the percentage of fault attributed to Mrs. Smith would not automatically result in a reduction of the compensatory damages.

Thereafter, the district court directed the parties to submit a different set of proposed instructions that more closely complied with the standard instructions given in another federal Engle case. Smith and Defendant jointly presented a set of instructions...