IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT, STATE OF FLORIDA

R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Case No.: 4D16-430 L.T. No.: 08-CV-019620 (19) ALAN KONZELMAN, as personal representative of the estate of ELEANOR KONZELMAN, Appellee/Cross-Appellant.

ON APPEAL FROM THE CIRCUIT COURT, SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR

BROWARD COUNTY, FLORIDA

ANSWER/CROSS-INITIAL BRIEF OF ALAN KONZELMAN

Eric S. Rosen esr@kulaw.com Kelley Uustal, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, Florida 33316

John S. Mills jmills@mills-appeals.com Courtney Brewer cbrewer@mills-appeals.com service@mills-appeals.com (secondary) The Mills Firm, P.A. 325 North Calhoun Street Tallahassee, Florida 32301

Attorneys for Appellee/Cross-Appellant

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF CITATIONS ........................................................................................ iii

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

SUMMARY OF ARGUMENT ...............................................................................10

ARGUMENT ON MAIN APPEAL ........................................................................14

I. The 1999 Amendments to Section 768.73 Do Not Prohibit Plaintiff From Recovering Punitive Damages. ...................................14

A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date......................................................................14

B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event. ................................................................28

II. The Trial Court Reasonably Upheld the Jury’s Award of Non-Economic Damages. ............................................................................34

A. The Award Was Not Excessive. ...............................................35

B. Evidence of the Number of Deaths Caused by Smoking Had No Relevance to or Impact on the Non-Economic Damage Award. ........................................................................44

III. Reynolds Only Seeks to “Preserve” Its Undeveloped “Constitutional Claims.” .....................................................................46

ARGUMENT ON CROSS-APPEAL ......................................................................47

IV. The Trial Court Erred in Reducing Compensatory Damages by Comparative Fault Because Plaintiff Prevailed on His Intentional Tort Claims. ......................................................................47

CONCLUSION ........................................................................................................49

CERTIFICATE OF SERVICE ................................................................................50

ii

CERTIFICATE OF COMPLIANCE .......................................................................51

iii

TABLE OF CITATIONS

CASES

Abram v. State, Dep’t of Health, Bd. of Med., 13 So. 3d 85 (Fla. 4th DCA 2009) ................................................................. 14 Aills v. Boemi, 41 So. 3d 1022 (Fla. 2d DCA 2010) ........................................................ 38, 42 Alamo Rent-a-Car, Inc. v. Clay, 586 So. 2d 394 (Fla. 3d DCA 1991) .............................................................. 39 Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) .............................................................. 16, 17, 23 Atlas Props., Inc. v. Didich, 226 So. 2d 684 (Fla. 1969) ............................................................................ 21 Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999) ............................................................. 47 Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977) .......................................................................... 39 Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662 (Fla. 1955) .............................................................................. 40 Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013) ................................................................ 17, 20, 26 Cardona v. Gutierrez, 562 So. 2d 766 (Fla. 4th DCA 1990) ............................................................. 37 Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000) ............................................................................ 46 Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla. 1988) ............................................................................ 27

iv

Citrus Cty. v. McQuillin, 840 So. 2d 343 (Fla. 5th DCA 2003) ............................................................. 40 City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961) ............................................................................ 23 Conner v. Cone, 235 So. 2d 492 (Fla. 1970) ............................................................................ 31 Coolen v. State, 696 So. 2d 738 (Fla. 1997) ...................................................................... 44-45 Dyes v. Spick, 606 So. 2d 700 (Fla. 1st DCA 1992) ............................................................. 40 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006) ............................................................................ 1 Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014) ...................................................................... 31, 32 Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209 (Fla. 4th DCA 2017) ........................................................... 28 Fla. Dep’t of Agric. & Cons. Servs. v. Mendez, 98 So. 3d 604 (Fla. 4th DCA 2012) ............................................................... 46 Fulton Cty. Adm’r v. Sullivan, 753 So. 2d 549 (Fla. 1999) ............................................................................ 26 Glaze v. Worley, 157 So. 3d 552 (Fla. 1st DCA 2015) ............................................................. 16 Gonzalez v. Dep’t of Health, 124 So. 3d 449 (Fla. 1st DCA 2013) ............................................................. 16 Gov’t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla. 1995) ............................................................................ 20

v

Hall v. U.S. Bank Nat’l Ass’n, 171 So. 3d 830 (Fla. 4th DCA 2015) ............................................................. 16 Hawk v. Seaboard Sys. R.R., Inc., 547 So. 2d 669 (Fla. 2d DCA 1989) .............................................................. 42 In re Holder, 945 So. 2d 1130 (Fla. 2006) .......................................................................... 28 Int’l Union of Operating Eng’rs, Local No. 675 v. Lassitter, 295 So. 2d 634 (Fla. 4th DCA 1974) ............................................................. 43 Jones v. Alayon, 162 So. 3d 360 (Fla. 4th DCA 2015) ............................................................. 34 Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254 (Fla. 5th DCA 2010) ............................................................. 27 Lopez v. Cohen, 406 So. 2d 1253 (Fla. 4th DCA 1981) ........................................................... 41 Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013) .........................................................passim Martin v. United Sec. Servs., Inc., 314 So. 2d 765 (Fla. 1975) ...................................................................... 21, 24 MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129 (Fla. 3d DCA 2000) ............................................................ 43 McKibben v. Malloy, 293 So. 2d 48 (Fla. 1974) .............................................................................. 22 Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) ............................................................................ 48 Meyer v. Thompson, 861 So. 2d 1256 (Fla. 4th DCA 2003) ........................................................... 48

vi

Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994) ........................................................... 21 Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) ................................................................ 26 Nordt v. Wenck¸ 653 So. 2d 450 (Fla. 3d DCA 1995) .............................................................. 43 Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ........................................................passim Philip Morris USA Inc. v. Cohen, No. SC13-35, 2016 WL 375143 (Fla. Jan. 29, 2016) .............................. 43, 44 Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36 (Fla. 3d DCA 2015) ................................................................ 41 Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013) ................................................................ 46, 47, 49 Philip Morris USA Inc. v. McKeever, 207 So. 3d 907 (Fla. 4th DCA 2017) ............................................................. 44 Philip Morris USA v. Williams, 549 U.S. 346 (2007)..................................................................... 30, 31, 32, 34 R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-4197, 2017 WL 729817 (Fla. 1st DCA Feb. 24, 2017) .......... 17, 18 R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013) ....................................................passim R.J. Reynolds Tobacco Co. v. Buonomo, Nos. SC14-81 & SC14-83, 2016 WL 374082 (Fla. Jan. 26, 2016) ............... 15 R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016) ............................................................. 47

vii

R.J. Reynolds Tobacco Co. v. Evers, No. 2D16-1603, 2017 WL 4077870 (Fla. 2d DCA Sept. 15, 2017) ............. 18 R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) ............................................................. 49 R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) ......................................................passim R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012) ................................................... 37, 38, 40 R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) ......................................................... 42, 43 Rudy’s Glass Constr. Co. v. Robins, 427 So. 2d 1051 (Fla. 3d DCA 1983) ............................................................ 41 Shere v. State, 742 So. 2d 215 (Fla. 1999) ............................................................................ 47 Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) .......................................................................... 25 St. John v. Coisman, 799 So. 2d 1110 (Fla. 5th DCA 2001) ..................................................... 16-17 St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000) ............................................................................ 33 State v. Robinson, 873 So. 2d 1205 (Fla. 2004) .......................................................................... 31 Tobias v. Osorio, 681 So. 2d 905 (Fla. 4th DCA 1996) ............................................................. 39 Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002) ............................................................................ 27

viii

Valiant Ins. Co. v. Webster, 567 So. 2d 408 (Fla. 1990) ...................................................................... 20, 27 Variety Children’s Hosp. v. Perkins, 445 So. 2d 1010 (Fla. 1983) .......................................................................... 20 W.R. Grace & Co. v. Waters, 638 So. 2d 502 (Fla. 1994) ................................................................ 15, 31, 33

STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES OF COURT

§ 768.17, Fla. Stat. ............................................................................................. 20, 23 § 768.21(2), Fla. Stat. (2010) ................................................................................... 25 § 768.73, Fla. Stat. ............................................................................................passim § 768.73(1)(a)1, Fla. Stat. ........................................................................................ 16 § 768.73(2), Fla. Stat. ........................................................................................passim § 768.73(2)(a), Fla. Stat. .......................................................................................... 15 § 768.73(2)(b), Fla. Stat. ........................................................................ 11, 15, 30, 32 § 768.81, Fla. Stat. ............................................................................................. 19, 48 § 768.81(4), Fla. Stat. (1995) ................................................................................... 47 Ch. 90-14, § 3, Laws of Fla. .................................................................................... 22 Ch. 99-225, Laws of Fla. (the “1999 Act”) ............................................................. 14 Ch. 99-225, § 23, Laws of Fla. ................................................................................ 14 Ch. 99-225, § 35, Laws of Fla. ................................................................................ 32

ix

SECONDARY SOURCES Fla. HB 1067 (2015) ................................................................................................ 24 Fla. SB 978 (2015) ................................................................................................... 24 Mary Ellen Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo, Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.), http://www.tampabay.com/blogs/the-buzz-florida-politics/bill-to-shield-tobacco-industry-from-damages-in-engle-lawsuits-in-limbo/2222608 ................................. 24

1

STATEMENT OF THE CASE AND OF THE FACTS

In this Engle progeny case, R.J. Reynolds Tobacco Company appeals a

judgment entered in favor of Alan Konzelman, as personal representative of the

estate of his late wife, Eleanor “Elaine” Konzelman (“Plaintiff”).1 Reynolds claims

the trial court erred in (I) refusing to apply the 1999 amendments to section 768.73,

Florida Statutes, which it contends bar Plaintiff from recovering any punitive

damages, and (II) denying a remittitur or new trial on the amount of non-economic

damages, which it contends was excessive. It also asserts that it “preserves” some

unelaborated “constitutional claims regarding the use of the Engle findings.”

Plaintiff cross-appeals the trial court’s decision to reduce compensatory damages

by Elaine’s comparative fault.

Born in 1930, Elaine smoked for more than 40 years, quitting only after she

was intubated in the hospital due to breathing troubles and diagnosed with chronic

obstructive pulmonary disorder (COPD) in 1995. (T:1784, 2209-12, 2519.) At the

time of her diagnosis, she had developed a serious cough and been experiencing

shortness of breath and wheezing for two years. (T:2234-39.) Consistent with the

supreme court’s direction in Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1277

1 First names are used to refer to the Konzelmans individually.

2

(Fla. 2006), Elaine filed her initial complaint alleging claims for negligence, strict

liability, fraudulent concealment, and conspiracy in 2007. (SR:87-98.)

Elaine’s COPD got progressively worse and eventually killed her in 2010

(T:2287, 2552.) Alan was substituted as personal representative for Elaine’s estate

and sought to amend the complaint accordingly, seeking wrongful death damages

or, alternatively, survival damages from Elaine’s personal injury. (R:1, 9-10.) The

amended complaint was otherwise materially identical to the original complaint.

(R:4-11.) Reynolds and its codefendant (who was later dismissed) opposed the

amendment, contending that the wrongful death action was distinct from Elaine’s

personal injury action, requiring Plaintiff to now bring a separate action. (R:28-31.)

The trial court granted Plaintiff’s motion. (R:104.)

Plaintiff thereafter sought to amend the complaint for leave to seek punitive

damages. (R:564-79, 586-638.) Reynolds opposed, but did not claim that punitive

damages were barred under section 768.73, Florida Statutes. (R:701-21.) The trial

court granted Plaintiff’s motion for leave to add a claim for punitive damages on

the intentional torts only, based on then-existing law. (R:867.)

Nearly nine months later and just a month before trial started, Reynolds filed

a notice arguing that section 768.73, Florida Statutes, barred Plaintiff from

obtaining punitive damages because Elaine died in 2010, requiring application of

the post-1999 version of the punitive damages statute. (R:4322-39.) In response,

3

Plaintiff adopted the response from another Engle progeny case in which this exact

same argument was made and rejected. (R:7861-7971; SR:100-120.) Plaintiff

noted therein that under Reynolds’s argument, a smoker who sustained injuries in

the class period of the early 1990s would have the right to seek punitive damages

only if tobacco’s conduct had not killed him or her. (R:7868.) Such an

interpretation would be contrary to the express purpose of the wrongful death

statute and would deprive plaintiffs of their vested, substantive rights to punitive

damages. (R:7867.)

The trial court concluded that Plaintiff’s punitive damages claim was not

barred. (R:11,043-45.) The trial commenced that same day, and Reynolds moved

for reconsideration on the issue two and a half weeks later. (R:11,138-47.) Plaintiff

responded in opposition (R:11,263-72) and filed transcripts from the previous

Engle progeny case on this issue (R:11,277-11,336). The trial court asked both

sides to fully brief the issue. (R:11,608-09; T:3387.) But given that the First and

Second District Courts of Appeal were considering the same question and that the

trial in this case was already well under way, the trial court deferred its decision

until after the trial concluded. (R:11,608-09; T:3387.)

The jury heard argument and evidence about the impact of Elaine’s sickness

and death on Alan. Alan and Elaine had been married for 29 years at the time of

her death. They met in Hawaii in 1981, a chance encounter at the jewelry shop

4

where Elaine worked. (T:2271-72.) They hit it off, travelling together and staying

in contact until they were married at the end of 1982, when Elaine moved to Alan’s

home in Florida. (T:2273-77.)

Alan was in Hawaii when he met Elaine because he worked as an engineer

on merchant ships, a career that spanned some 61 years. (T:2267-68.) The job

required lots of travel throughout their marriage. (T:2269.) A tour was about 50-60

days, so Alan would be gone for that block of time and then home for a similar

period; he estimated he was gone from home about half the time. (T:2280, 2339.)

When he was not out to sea, he was off work completely, allowing the couple to

spend all his down time together. (T:2269, 2549.)

The couple enjoyed each other’s company “very much,” were affectionate,

and spent a lot of time together travelling or sailing their boat throughout their

nearly-three decade marriage. (T:1967.) Alan, “a man of few words,” told the jury

they had a lot of fun together. (T:2280, 2557.) One of Elaine’s daughters,2 Sandra

Mattson, told the jury that the couple loved each other very much and that Alan

cared deeply for Elaine. (T:2549.) Elaine was very active and her health was

excellent until and even after her COPD diagnosis; the couple was even able to

2 Both Alan and Elaine had been previously married. (T:1917, 2271.) The

father of Elaine’s children was her first husband. (T:2515-17.)

5

travel to Venice and the Galapagos Islands together after 1995. (T:2281, 2285-86,

2536.)

Starting around the early 2000s, though, their active life came to a halt when

Elaine started to lose energy. (T:2287.) She had to use oxygen to help her breathe

by 2002. (T:3173.) Eventually, she was confined to a wheelchair because she had

trouble standing. (T:2287.) Alan had to help her get in and out of bed. (T:2287.)

Alan was still working to support the couple throughout this period, so

Sandra would come to Florida to help take care of her mother when Alan had to be

away for work. (T:2551.) Sandra noted that “[Alan] was conflicted … because he

had to go to work, but he wanted to stay with [Elaine], too.” (T:2557.) When Alan

and Sandra were both working, Elaine would stay in assisted living facilities.

(T:2289, 2341, 2551.) This reality made Alan feel “helpless,” but he monitored the

facilities carefully; the testimony at trial was supported by various medical records

and directives reflecting his presence and continuous involvement in her care.

(T:2289, 2358-60; e.g., Ex. R33:1339, 1342, 2654, 2820, 3157, 3502, 4148, 4322,

5000, 5157, 5248, 5576-77.) Indeed, when Alan was not working, he was with

Elaine 24 hours a day. (T:2554.)

3 Citations to “Ex. R3” refers to volume 3 of the trial exhibits transmitted to

this Court on September 18, 2017. The page numbers refer to the PDF pagination.

6

In 2008, Elaine spent some time in California at Sandra’s insistence.

(T:2614-15.) But Elaine wanted to return home, so Alan and Sandra rented an RV

to transport her back to Florida. (T:2551-52.) Her health continued to deteriorate

until she could not even get out of bed. (T:2289-90.) She was on oxygen 24 hours a

day and had to stay in assisted living facilities and eventually hospice even when

Alan was not out to sea. (T:2290.) He visited her daily and would take her to

dinner when she was capable. (T:2290, 2553-54, 2622-23.) The couple was “still

really close in the way that they spoke with each other and loved each other.”

(T:2554.)

Sandra explained that the illness took a toll on Alan’s health “and it became

like too much, too much to handle almost.” (T:2554.) Alan required heart surgery

in late 2009-early 2010, so Elaine moved back to California near her daughter,

staying in an assisted living facility there. (T:2291, 2552.) As soon as his health

permitted him to, Alan joined them in California and was at Elaine’s bedside on

the day she passed away in March 2010. (T:2291, 2556.) Elaine had requested to

have her body cremated and that her “ashes be returned to Alan and scattered out

to sea with Alan’s.” (Ex. R3:3289.)

Alan testified that he still loves and misses Elaine. (T:2292.) Sandra thought

that the loss had “devastated” Alan, finding “just no words to even describe what

the man’s gone through with his wife.” (T:2557.) His health and finances declined

7

as he struggled to care for Elaine and dealt with the conflicting pressures of

needing to work to support his wife and wanting to stay by her side. (T:2557.)

The jurors heard about how Alan had “reconnected” (Init. Br. 7-8) and taken

trips with a woman Alan met before he and Elaine were married. (T:2351.) They

also learned that Alan did not reach out to this woman until a year and a half after

Elaine’s death and that the reconnection fizzled, as the two had not spoken since

2014. (T:2356, 3315.)

Before closing argument, the jury was instructed that non-economic

damages should compensate Alan for the loss of Elaine as well as his mental pain

and suffering due to Elaine’s injury and death, but should not be used to punish

Reynolds. (T:3415-16.) In closing argument on the appropriate amount of non-

economic damages, Plaintiff’s counsel asked for $5 million for Alan’s “substantial

loss,” but told the jury: “This is a suggestion, you can go higher, you can go lower,

it’s just a suggestion … .” (T:3486-87.) Plaintiff also argued in closing that if the

jury attributed any fault to Elaine, it should be 10% to Reynolds’s 90%. (T:3483-

84.) In its closing, Reynolds suggested that the $5 million request was suspect

because it seemed like Alan was not around very much and even implied that Alan

had lied to Elaine about his work in 2008 and 2009 or had been involved with

someone else prior to Elaine’s death. (T:3582-92.) Reynolds did not suggest any

amount it would deem appropriate for Alan’s damages.

8

After a nearly three-week Phase I trial, the jury concluded Elaine was an

Engle class member, that Plaintiff’s claims were not barred by the statute of

limitations, and that Reynolds was liable for its intentional misconduct. (R:11,550-

51.) It awarded Plaintiff’s requested $295,000 in medical expenses. (R:11,552.) It

awarded Plaintiff more than requested ($8.5 million) in non-economic

compensatory damages, but also concluded Elaine was more at fault (15%) than

counsel had suggested. (R:11,551-52.) Finally, the jury determined Plaintiff was

entitled to punitive damages. (R:11,552.) After Phase II, the jury awarded Plaintiff

$20 million in punitive damages. (T:3835.)

Following the jury’s verdict, Reynolds filed a brief and reply in support of

the application of section 768.73(2), asserting that Plaintiff’s claims did not accrue

until Elaine died in 2010. (R:11,610-29, 11,936-46.) Plaintiff filed a brief in

opposition to the statute’s application, raising the same arguments he makes herein.

(R:11,844-56.) Following a hearing (SR:1-86), the trial court agreed with Plaintiff

and denied Reynolds’s motion to bar punitive damages in this case, citing this

Court’s opinion in R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla.

4th DCA 2013).(R:11,992.) Similarly, Reynolds’s motion for a directed verdict on

the punitive damages claim was denied. (R:11,206-18, 11,650, 11,992.)

Reynolds also sought a new trial on non-economic damages or a

“substantial” remittitur, asserting these damages were “grossly excessive.”

9

(R:11,724-34.) It did not assert that the verdict was infected by the evidence

regarding the number of deaths caused by smoking, although it did raise that as a

separate evidentiary issue. (R:11,723-24, 11,731-32.) Plaintiff responded,

documenting the evidence that showed Alan and Elaine had a “special, close, and

loving relationship” that was ended by Elaine’s death following years of Alan

having to endure “watching his wife suffer and ultimately die from a horrible and

debilitating disease.” (R:11,896-11,906.)

Although the trial court held a hearing and gave Reynolds a chance to argue

all points in its post-trial motions, the only issue Reynolds addressed was the

application of the punitive damages statute. (SR:3-78.) Reynolds “rest[ed] on the

papers” and only briefly touched on its remittitur argument, asserting:

And then the remittitur argument that we have here with $8.5 million, which is, of course, a lot more than what plaintiff suggested. Of course, he said they can go higher, they can go lower, but point is I think it’s sufficiently briefed. If the Court has questions about it, I’m happy to present argument on those issues as well, your honor.

(SR:79-80.) The trial court denied Reynolds’s motion. (R:11,992.)

Though cognizant that the trial court was bound to follow this Court’s

decision in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA

2015), Plaintiff asked that the jury be told that the trial court would not reduce the

compensatory damages by the jury’s comparative fault findings if the jury found

for Plaintiff on the intentional tort claims. (R:11,169; T:2754.) The trial court noted

10

Plaintiff’s objection but denied his request. (T:2754.) The trial court reduced the

judgment accordingly, awarding Plaintiff $7,475,750 in compensatory damages

(which included the jury’s economic damages award). (R:11,987.)

SUMMARY OF ARGUMENT

I. The trial court did not err in applying the pre-1999 punitive damages

statute, which was the statute in existence when Plaintiff’s underlying claims arose.

Those underlying claims are for the identical negligence, strict liability, fraud, and

conspiracy that caused Elaine’s COPD in 1995, leading to her personal injury

action and claim for punitive damages. That same punishment is no less warranted

because Reynolds’s misconduct was so bad that Elaine died in 2010. Reynolds

point to no principled basis in the law for concluding otherwise.

Applying the 1995 statute is consistent with this Court’s previous reversal

of a trial court decision to apply that applied the 1999 Act in an Engle progeny

case because the smoker died after 1999. Contrary to Reynolds’s contention that

this decision was reversed merely because of its concession, this Court does not

reverse when no error occurred simply because the other side concedes. Moreover,

two other district courts have applied the pre-1999 statute in similar circumstances.

Not only is all of the case law in Plaintiff’s favor, this result is most

consistent with the Legislature’s stated policy and motivations. The Wrongful

Death Act itself seeks to ensure a wrongdoer does not evade liability or

11

punishment by causing death rather than only injury. The death does not alter the

underlying lawsuit that is the basis for punitive damages, but instead only creates a

substitution process to ensure that the causes of action are not also lost. Similarly,

amendments to the punitive damages statute may not be applied to already-existing

actions absent clearly expressed legislative intent that does not exist here.

Even if this Court disagrees, the 1999 Act still should not be applied because

it is unconstitutional. Indeed, the 1999 Act fails rational basis review and violates

both equal protection and substantive due process. Of particular note is the final

provision of section 768.73(2)(b), which provides that even after a trial court has

concluded prior damages were insufficient to punish the misconduct at issue (and

here, that misconduct is among the worst of the worst and requires further

punishment), a plaintiff’s award of punitive damages still must be reduced by prior

awards. This provision lacks a rational basis because it can cut off, as is the case

here, a defendant’s punishment before it ever comes close to an adequate

accounting.

Additionally, the very basis for the statute has been rendered a nullity, as all

Engle juries are instructed that they may only award punitive damages for the harm

caused to the particular plaintiff in a case, consistent with United States Supreme

Court law. There is no longer any danger that a defendant will be punished twice

for causing harm to the same person, rendering the 1999 Act unnecessary.

12

Finally, the 1999 Act further violates equal protection because it

distinguishes between plaintiffs based solely on the timing of their lawsuits and the

time they take to wind through the litigation process. Those plaintiffs who, for

example, are injured first, try their cases in a county with no docket backlogs

before a fast-acting trial judge, and never have to contend with a mistrial caused by

factors like juror illness or defense misconduct will be able to obtain punitive

damages at the expense of later plaintiffs based solely on arbitrary factors

completely out of a plaintiff’s control.

II. The trial court did not abuse its discretion in refusing to alter the

jury’s verdict regarding Plaintiff’s non-economic damages. After 29 years of

marriage, the proper measure of Alan’s pain in losing his wife to an excruciating

and devastating disease is a matter entrusted to the jury. The jury heard evidence as

to how Alan and Elaine’s active lifestyle was brought to a halt in their golden

years. It also heard how Alan struggled with the conflict he felt at needing to work

to financially support Elaine while wanting to remain by her side to provide

emotional and physical support. That pressure took a toll on Alan’s own health;

indeed, he had to have heart surgery just a few months before Elaine passed away.

The trial judge reasonably refused to disturb the jury’s verdict. Alan’s

damages are much less than other amounts that this and other district courts have

affirmed in Engle surviving spouse cases. That the jury awarded more than

13

Plaintiff’s counsel requested is of no moment, given that counsel also stated the

jury could go higher or lower and that Reynolds refused to suggest any amount.

Given that the evidence amply supported the jury’s award, Reynolds has no

basis to claim that several mentions of the number of deaths caused by smoking

was the actual reason for the jury’s non-economic award. It states “volumes” of

other evidence improperly inflated the award, but fails to identify it or any ruling

by the trial court it seeks to overturn. Moreover, the jury was instructed not to

award non-economic damages to punish Reynolds or to do anything other than

compensate Alan for his suffering. Finally, Reynolds specifically ties its argument

to its contention that punitive damages should have been barred, but evidence

regarding the number of deaths caused by smoking would still have been

admissible as it is also relevant to comparative fault and reliance issues that were

up for consideration no matter how issue one is resolved.

III. Reynolds concedes its due process claim is foreclosed.

IV. Although this Court concluded to the contrary in R.J. Reynolds

Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), on cross-appeal

Plaintiff preserves his argument that the trial court should not have reduced his

compensatory damages by the jury’s comparative fault finding.

14

ARGUMENT ON MAIN APPEAL

I. THE 1999 AMENDMENTS TO SECTION 768.73 DO NOT PROHIBIT PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES.

Standard of Review. Plaintiff agrees that this Court considers the

interpretation and constitutionality of this statute de novo. E.g., Abram v. State,

Dep’t of Health, Bd. of Med., 13 So. 3d 85, 88 (Fla. 4th DCA 2009).

A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date.

There is no dispute that Elaine’s causes of action for negligence, strict

liability, fraudulent concealment, and conspiracy all accrued well before October 1,

1999, or that she died after that date. The dispute is whether the punitive damages

statutes that apply to this case are the pre-1999 or post-1999 versions.4 In 1999, the

Legislature enacted Chapter 99-225, Laws of Florida (the “1999 Act”), and section

23 of that law imposed more restrictive caps on the potential amount of punitive

damages and restricted the ability of plaintiffs to recover punitive damages against

a defendant who has paid punitive damages for the same course of tortious conduct

in a prior case.

Specifically, the post-1999 version modifies the common law rule that a

prior award of punitive damages against a defendant does not preclude subsequent

4 Although October 1, 1999, is the key date, for ease of reference, this brief

will use the terms “pre-1999” and “post-1999” when referring to the two versions of section 768.73.

15

awards for injuries arising from the same conduct. W.R. Grace & Co. v. Waters,

638 So. 2d 502, 504-05 (Fla. 1994). The pre-1999 version did not address this

issue at all, but under the post-1999 version, if the defendant makes a showing

“before trial” that it has previously paid punitive damages for the same course of

conduct, then the plaintiff may not recover punitive damages unless the court

determines by clear and convincing evidence that the prior award “was insufficient

to punish that defendant’s behavior.” § 768.73(2)(a), (b), Fla. Stat. (2010). Even

then, it requires any subsequent award be reduced by the amount of prior awards

the defendant has paid. Id. § 768.73(2)(b).

Reynolds suggests that the post-1999 version of the statute should apply

because Elaine died in 2010, seeking to prevent her from recovering punitive

damages because of the other punitive judgments it has already paid to Engle

plaintiffs. But binding precedent requires application of the pre-1999 version,

because this Court reversed the only trial court to have followed Reynolds’s logic.

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

quashed on other grounds, Nos. SC14-81 & SC14-83, 2016 WL 374082 (Fla. Jan.

26, 2016). The trial court in Buonomo reduced the jury’s award of punitive

damages to three times the compensatory damage award, relying on another

amendment to the punitive damages statute in the 1999 Act. Id. at 1052. Having

earlier noted that the smoker began suffering from COPD in 1995 and died in 2008

16

after the lawsuit had been filed, id. at 1050, this Court held that the trial court erred

in relying on section 768.73(1)(a)1 because that provision did not exist until the

1999 amendments and “[i]t is … the 1995 version of the statute that governs the

instant case.” Id. at 1052.

Reynolds seeks to evade the holding in Buonomo because this Court noted

that Reynolds did not dispute that the 1995 version governed. That it now disputes

what it previously conceded is of no moment. A confession of error “is not binding

upon an appellate court, and it is the practice of Florida courts not to accept

erroneous concessions.” Glaze v. Worley, 157 So. 3d 552, 557 (Fla. 1st DCA 2015)

(Makar, J., concurring) (quoting Gonzalez v. Dep’t of Health, 124 So. 3d 449, 450

(Fla. 1st DCA 2013)). This Court makes a point to only accept a “proper

confession of error.” E.g., Hall v. U.S. Bank Nat’l Ass’n, 171 So. 3d 830, 30 (Fla.

4th DCA 2015).

And in Buonomo, this Court did not simply rely on Reynolds’s failure to

dispute that the 1995 version applied to reverse the trial court’s decision to the

contrary. Instead, it followed that notation with legal citations and parentheticals

demonstrating it had made a determination that the claim for punitive damages

arose before the 1999 Act even though the smoker died after its enactment.

Buonomo, 138 So. 3d at 1052 (citing Alamo Rent-A-Car, Inc. v. Mancusi, 632

So. 2d 1352, 1358 (Fla. 1994), and St. John v. Coisman, 799 So. 2d 1110, 1113

17

(Fla. 5th DCA 2001)). Both of the cases cited discuss applying the version of the

punitive damages statute in effect when the cause of action arose, so this Court did

not blindly adopt Reynolds’s position. Mancusi, 632 So. 2d at 1358; St. John, 799

So. 2d at 1113.

Since Buonomo, this same conclusion has been adopted by two other district

courts. In R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-4197, 2017 WL 729817,

at *4 (Fla. 1st DCA Feb. 24, 2017), Reynolds argued that provisions requiring

stricter caps and a finding of “conscious disregard” for the safety of others in the

1999 Act should have been applied. As here, Plaintiff’s suit had been filed as a

personal injury case due to Mrs. Allen’s COPD, but she too died after it was filed

and the complaint had been amended to substitute her personal representative and

to seek wrongful death damages. Id. at *5. The First District noted that upon her

death, Mrs. Allen’s case “did not self-destruct,” but instead “abated until a personal

representative was appointed and the existing suit was amended to add the

wrongful death claim.” Id. (internal quotation mark and citation omitted). Thus, her

personal representative, like Alan, “was not required to file a new suit, but instead

was allowed to proceed in the same suit initiated by Mrs. Allen.” Id. (citing

Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)).

Because Mrs. Allen’s lawsuit was an Engle progeny suit like this one, she

was only permitted “to take advantage of the findings in Engle” if her disease

18

manifested by November 21, 1996. Id. at *4. The court concluded: “Just as the

wrongful death action was allowed to relate back to the date of the Engle class for

statute of limitations purposes, the applicable statutory law also relates back to the

Engle class.” Id. at *5. The First District also noted that application of the 1999

Act would impair Mrs. Allen’s substantive right to seek punitive damages. Id.

Since Reynolds filed its initial brief in this case, its motion for rehearing en

banc has been granted in Allen. R.J. Reynolds Tobacco Co. v. Allen, No. 1D15-

4197, Order Granting Rehearing En Banc (June 15, 2007) (order available at

online docket). But the panel decision was not vacated by the order granting

rehearing. Id. Moreover, although the order did not limit en banc review to any

particular issue, the dissenting judge on the panel opinion wrote only to express his

disagreement regarding a juror misconduct issue raised by Reynolds and did not

address punitive damages at all. Allen, 2017 WL 729817, at *6-*10 (Osterhaus, J.,

dissenting).

The Second District recently followed this Court and the First District’s

leads, concluding that the pre-1999 version applied despite the smoker’s death in

2007. R.J. Reynolds Tobacco Co. v. Evers, No. 2D16-1603, 2017 WL 4077870

(Fla. 2d DCA Sept. 15, 2017). The Second District summarized the underlying

reasoning: “While Evers did not file the wrongful death action until 2007 when

Loyd died, her right to do so was based on Loyd’s status as an Engle class

19

member, i.e., Loyd’s manifestation of a tobacco-related disease or medical

condition prior to November 21, 1996.” Id. at *3.

To be sure, this case originated as Elaine’s claim for the personal injuries

she suffered after smoking Reynolds’s cigarettes. Had she waited to file those

claims until 2007, Reynolds no doubt would have argued her claims were untimely

because she was diagnosed with COPD back in 1995. The only reason Elaine’s

case is timely and not subject to statute of limitations argument is because she is a

member of the Engle class and therefore subject to the tolling provided by that

litigation. There is no doubt the pre-1999 statute applied to that lawsuit.

Further supporting application of the pre-1999 statute, this Court has

rejected an identical argument that Reynolds made with regard to an amendment to

another statute limiting a plaintiff’s damages. As this Court is well-aware,

Reynolds and Engle progeny plaintiffs have long disputed whether plaintiffs’

compensatory damages may be reduced by the jury’s comparative fault findings

under section 768.81, Florida Statutes. (It is an issue preserved on cross-appeal

here.) This Court’s seminal case on the issue noted that the parties disputed which

version of the comparative fault statute applied and the Court noted that the general

rule was that the “version in effect at the time the cause of action accrued”

applies. R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487, 492 n.3 (Fla. 4th

DCA 2015) (emphasis added). In addressing the wrongful death claim at issue, the

20

Court then concluded “Plaintiff’s cause of action accrued in 1994, when Mr.

Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute

governs.” Id. Mr. Schoeff did not die until 1995. (R:11,963.)

The result in all these cases is consistent with the very policy behind the

Wrongful Death Act itself—“to shift the losses resulting when wrongful death

occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat.;

see also Capone, 116 So. 3d at 376 (stating that purpose is “to prevent a tortfeasor

from evading liability for his misconduct when such misconduct results in death”).

The Act was created to correct the common law “paradox” permitting a tortfeasor

to escape liability “in situations where the damages were so severe as to result in

death.” Variety Children’s Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983).

Again, the causes of action supporting the demand for punitive damages in this

case are the actions for negligence, strict liability, fraud, and conspiracy, all of

which accrued well before Elaine’s individual personal injury suit was filed, let

alone when wrongful death damages were sought. See Valiant Ins. Co. v. Webster,

567 So. 2d 408, 411 (Fla. 1990) (“While the Wrongful Death Act creates

independent claims for the survivors, these claims are also derivative in the sense

that they are dependent upon a wrong committed upon another person.”), receded

from on other grounds in Gov’t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla.

1995). Reynolds’s attempt to use the Wrongful Death Act to evade liability for its

21

misconduct because it resulted in Mrs. Konzelman’s death could not be more

contrary to long-standing legislatively established core public policies in Florida.

Indeed, the Florida Supreme Court has rejected the argument that the

Wrongful Death Act was unconstitutional for eliminating the plaintiff’s right to

recover punitive damages expressly because it found that the act did not abolish

that part of the personal injury action. Martin v. United Sec. Servs., Inc., 314 So. 2d

765, 767, 771-72 (Fla. 1975). The supreme court made clear that it would be

“difficult for us to accept the proposition that the legislature intended a tortfeasor

to be punished for his malicious and reckless acts when they maim another but not

for those same acts when they kill the victim.” Id. at 771; see also Atlas Props.,

Inc. v. Didich, 226 So. 2d 684, 689 (Fla. 1969) (“any interpretation other than

allowing recovery for punitive damages after the death of the injured party would

be extremely difficult to justify”). Yet that is exactly the result Reynolds seeks

here.

Downplaying its concession and losses on this issue before this Court,

Reynolds instead relies on the reasoning from an inapt decision, Nationwide

Mutual Fire Insurance Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994).

There the Court held that the 1990 amendments to the Wrongful Death Act,

which expanded the survivors who can recover damages, applied where the

decedent died after its effective date. Id. at 1058. In rejecting the argument that a

22

wrongful death action accrues on the date of the accident for purposes of

determining the applicable version of the wrongful death statutes, the Court relied

on two factors that easily distinguish those amendments from the amendments at

issue here.

First, the Legislature had provided that the amendment to the Wrongful

Death Act “shall apply to causes of action accruing on or after” October 1, 1990.

Ch. 90-14, § 3, Laws of Fla. The post-1999 version of section 768.73, however,

uses different language, tying application not to when the cause of action

“accrues,” but when it “arises.” While those two terms are undoubtedly

interchangeable in most contexts, there is reason to give them slightly different

meanings here. It makes sense for amendments to the wrongful death act to apply

based on the date of death because the act governs the remedies available upon

death. But it makes no sense for amendments to the punitive damages statutes,

which the Legislature intends to apply prospectively only, to eliminate or reduce

the decedent’s right to seek punitive damages (and her heirs right to share in that)

based on when the decedent dies. And this Court should avoid constructions that

would lead to absurd results. McKibben v. Malloy, 293 So. 2d 48, 51 (Fla. 1974).

Instead, amendments to any statutes governing tort actions generally should be

applied based on when the underlying cause of action accrued, as this Court held in

Schoeff.

23

Second, this Court recognized that the inquiry did not end with what the

Legislature said because it then went on to examine whether the changes in

available damages could be applied retrospectively. It found that they could

because the “wrongful death statute is remedial.” Nationwide, 645 So. 2d at 1058

(citing § 768.17, Fla. Stat.); see also City of Lakeland v. Catinella, 129 So. 2d 133,

136-67 (Fla. 1961) (remedial statutes do not fall within the general presumption

against retrospective application).

The 1999 Act, on the other hand, has no expression of legislative intent that

its restrictions on the ability to recover punitive damages are remedial and certainly

nothing suggesting an intent to destroy existing rights. The Florida Supreme Court

has held that changes to section 768.73 that would reduce the availability of

punitive damages may not be applied retrospectively absent clearly explained

legislative intent in the very authority on which this Court relied in Buonomo.

Mancusi, 632 So. 2d 1352. An amendment to a punitive damages statute is a

change in substantive law that must be

presumed to operate prospectively rather than retrospectively unless the Legislature clearly expresses its intent that the statute is to operate retrospectively. This is especially true when retrospective operation of a law would impair or destroy existing rights.

Id. at 1358 (citations omitted).

Further evidence that the Legislature intended the 1999 Act to operate only

prospectively is found in the failed attempt in 2015 by members of both houses to

24

make it retroactive. Fla. HB 1067 (2015); Fla. SB 978 (2015). Those bills sought to

apply the provisions of section 768.73 to “all civil actions in which judgment has

not been entered, regardless of when the cause of action arose.” Id. Both bills

targeted Engle plaintiffs—smokers and their families—and the tobacco companies

“hired more than 40 lobbyists” to get it passed, “not including another 50-plus

lobbyists who are also working on litigation reform as part of the state and federal

tort reform efforts which the tobacco industry has long supported.” Mary Ellen

Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo,

Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.),

http://www.tampabay.com/blogs/the-buzz-florida-politics/bill-to-shield-tobacco-

industry-from-damages-in-engle-lawsuits-in-limbo/2222608. Both bills failed.

In sum, the only way to reconcile this Court’s holdings in Buonomo, Schoeff,

and Nationwide is to conclude that the applicability of amendments that change the

remedies provided by the Wrongful Death Act is determined by the date of death,

but that the applicability of statutes applying to tort actions generally, including

section 768.73, is determined by the date the underlying causes of action accrued

regardless of death. Those underlying claims remain the same; the only thing the

wrongful death conversion does is alter how the compensatory damages are

measured and who receives them. See Martin, 314 So. 2d at 767 (noting that the

Wrongful Death Act provisions “consolidate survival and wrongful death actions

25

and substitute for a decedent’s pain and suffering for the survivors’ pain and

suffering as an element of damages”). Relatedly: “A claim for punitive damages

focuses on ensuring the correct remedy for the underlying violation—one that

punishes the defendant and deters others from engaging in similar conduct.” Soffer

v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1230 (Fla. 2016) (emphasis

added).5

Reynolds attempts to avoid this result by contending that “the only loss or

damage claimed is the wrongful death of Elaine Konzelman” and that her “claims

died with her.” Neither assertion is accurate. First, the damages authorized by the

Wrongful Death Act and sought in this case were “loss of decedent’s

companionship and protection and for mental pain and suffering from the date of

injury.” § 768.21(2), Fla. Stat. (2010) (emphasis added). (See also T:3415

(instruction to jury that damages are those incurred “as a result of Elaine

Konzelman’s injury and death”) (emphasis added).)

Second, Elaine’s causes of action were not eliminated or nullified upon her

death; they “merged” together with a new wrongful death claim that “substituted”

the right to recover her compensatory damages with the right to recover the

5 Though the supreme court cited language from the 1999 Act, e.g., Soffer,

187 So. 3d at 1232-33, that has no bearing on the analysis here. This issue was neither raised nor addressed by the court. And the smoker in that case died in 1992, id. at 1222, so even under Reynolds’s argument, the 1999 Act was not applicable.

26

compensatory damages suffered by her estate and survivors. Capone, 116 So. 3d at

375-77. Reynolds keeps pointing to the term “abate” in the statute seemingly

without any recognition of the supreme court’s determination of what that term

meant: “Thus, the Act implemented a process of substitution; that is, where an

injured plaintiff succumbs to injuries allegedly inflicted by a tortfeasor, the

damages that the decedent could have recovered for pain and suffering had he or

she not died are, in effect, transferred to the survivors of the decedent.” Id. at 375.

Stated another way, the “theoretical event” of abatement “does not automatically

terminate a lawsuit”: “A pending lawsuit does not simply self-destruct like the

secret message on a rerun of ‘Mission Impossible.’ ” Id. at 369 (quoting Niemi v.

Brown & Williamson Tobacco Corp., 862 So. 2d 31, 33 (Fla. 2d DCA 2003)). To

find that the pre-existing right to seek punitive damages was not merged and

instead was eliminated to be replaced with a nominal “right” to seek punitive

damages that is nullified by the 1999 Act would promote the very policies the

Legislature sought to avoid in the clearest terms possible—allowing a tortfeasor to

escape punishment because its victim died.

Another case Reynolds cites that is even less on point than Nationwide is

Fulton County Administrator v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999), which

mentions in passing that a wrongful death action in Florida accrues on the date of

death for purposes of the two-year statute of limitations. But that decision was not

27

even applying Florida law. Nor did it consider applying a statutory amendment to

eliminate an existing right. And, as in nearly every case Reynolds cites except for

Nationwide, the decedent in Fulton County did not die following institution of a

claim for personal injuries; instead the action was first commenced as a wrongful

death action.

What Reynolds seeks is a determination that the conversion of a personal

injury lawsuit to a wrongful death lawsuit restarts the clock on the underlying

claims. But Reynolds’s position ignores the longstanding recognition that rights

under the Wrongful Death Act are derivative of the pre-existing substantive rights

held by the decedent before her death. E.g., Valiant Ins. Co. v. Webster, 567 So. 2d

408, 411 (Fla. 1990); Celotex Corp. v. Meehan, 523 So. 2d 141, 147 (Fla. 1988);

Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254, 1258 (Fla. 5th DCA 2010).

So, even though the Wrongful Death Act, as amended up to the time of death,

controls who may sue and what compensatory damages may be recovered, the

rights being sued upon are those that accrued at the time the decedent’s underlying

tort claims accrued.

For instance, Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 116 (Fla.

2002), held that the filing of a wrongful death action did not revive a stale claim

that had been barred by the statute of limitations before the decedent’s death. Thus,

a defendant’s limitations defense is just as valid before the decedent’s death as it

28

was after. Id.; see also Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209,

1212 (Fla. 4th DCA 2017) (concluding that death of smoker who was not an Engle

class member due to limitations statute did not permit survivors to bring progeny

case). But, this principle flows both ways. Just as defendants are allowed defenses

that accrued before the decedent’s death, so too are survivors allowed rights that

accrued before the decedent’s death. Reynolds still has not been punished for the

harm it caused Plaintiff; this Court should adhere to its previous decision to ensure

the fundamental purpose behind the Wrongful Death Act is fulfilled.

B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event.

This Court need and should not reach the question of the constitutionality of

the statute if it can resolve this case by agreeing that the amendments do not apply

here. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (“Of course, we have

long subscribed to a principle of judicial restraint by which we avoid considering a

constitutional question when the case can be decided on nonconstitutional

grounds.”). But if this Court concludes that the 1999 Act prohibits Plaintiff from

seeking punitive damages because Elaine died after its enactment, Plaintiff

maintains that the law strips him of his constitutionally-guaranteed rights to

substantive due process and equal protection. Chiefly, even under the most lenient

constitutional standard there is—rational basis review—the specific limitation on

successive punitive damage awards in the post-1999 version of section 768.73(2)

29

that Reynolds seeks to enforce cannot stand. A quick review of the 1999 Act’s

limitations shows why.

The post-1999 version does not purport to provide that a defendant can only

be punished once for the same course of conduct. To the contrary, although

subsection (2)(a) is a presumptive ban, subsection (2)(b) provides that

notwithstanding that presumption, the trial court should “permit a jury to consider

an award of subsequent punitive damages” if the court “determines by clear and

convincing evidence that the amount of prior punitive damages awarded was

insufficient to punish that defendant’s behavior.” There can be no question that the

relatively few punitive damage awards to have been upheld against Reynolds are

insufficient punishment, given that the industry’s misconduct is the worst of the

worst and that it injured or killed millions of people. E.g., Lorillard Tobacco Co. v.

Alexander, 123 So. 3d 67, 82-83 (Fla. 3d DCA 2013). Reynolds and its co-

conspirators took an already dangerous product and intentionally designed it to

make it even more dangerous. They engaged in a decades-long, sophisticated

conspiracy to fraudulently conceal that information, knowing that millions would

die just so these companies could make more money.

Even absent those facts, the prior awards’ punishment for Reynolds’s course

of conduct are insufficient as a matter of constitutional law because, well after the

1999 Act was passed, the United States Supreme Court held that states must

30

provide some protection against a jury awarding punitive damages to punish a

defendant for harm to anyone but the plaintiff. Philip Morris USA v. Williams, 549

U.S. 346, 353-54 (2007). A Williams instruction is given in every Engle progeny

case, as was the case here (T:3793), which means that the punitive damage awards

in those cases were necessarily limited to punishment for the injuries to those

plaintiffs and could not, as a matter of constitutional law, have served to punish for

the harm to the Konzelman family.

Nevertheless, as Reynolds puts it, the rest of the statute makes clear that a

factual demonstration that Reynolds had not yet been sufficiently punished “would

have been futile.” (Init. Br. 14.) That is because of the last clause of subsection

(2)(b): “Any subsequent punitive damage awards must be reduced by the amount

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

no dispute that the total prior awards paid by Reynolds exceed the award in this

case. That is precisely because the Constitution forbade the jury in this case (or any

of the prior cases) from setting punitive damages in an amount designed to punish

for the entire course of conduct.

It is this internal conflict in section 768.73(2) that belies any rational basis to

the statute. Unless that last clause of subsection (2)(b) is judicially excised, the

1999 Act draws arbitrary, capricious, and unreasonable lines, violating equal

protection and substantive due process protections in the state and federal

31

constitutions. See Estate of McCall v. United States, 134 So. 3d 894, 901 (Fla.

2014) (“To satisfy the rational basis test, a statute must bear a rational and

reasonable relationship to a legitimate state objective, and it cannot be arbitrary or

capriciously imposed.”); State v. Robinson, 873 So. 2d 1205, 1214 (Fla. 2004)

(“The rational relationship test used to analyze a substantive due process claim is

synonymous with the reasonableness analysis of an equal protection claim.”).

Indeed, the clause cannot serve the purpose for the distinction—to ensure adequate

punishment while only barring duplicate punishment.

It is a well-established principle of constitutional law “that a statute which

depends upon the existence of a certain state of facts for its validity may cease to

be constitutionally valid when that certain set of facts ceases to exist.” Conner v.

Cone, 235 So. 2d 492, 498 (Fla. 1970) (citation omitted). The Williams decision

ended any set of facts that could support the clause at issue. Indeed, Williams

provided exactly the sort of “uniform solution” applicable across the 50 states that

the supreme court had concluded would be the only manner by which multiple

punitive damages awards for the same course of conduct could be addressed. W.R.

Grace & Co., 638 So. 2d at 505. Post-Williams, there is no longer a possibility that

a prior award can constitute punishment for injuring a subsequent plaintiff.

Thus, the sole reason for treating a subsequent plaintiff differently from a

prior plaintiff is a legislative determination that a defendant should be punished for

32

its entire course of conduct, but only once. But in light of Williams, the

Legislature’s patent purpose of ensuring sufficient punishment for a course of

conduct can only be achieved if the last clause is eliminated. Thankfully, the 1999

Act has a severability clause:

If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable.

Ch. 99-225, § 35, Laws of Fla. To give effect to the remaining provisions and to

uphold the clear legislative intent behind the amendments to section 768.73(2), the

Court should invalidate the last clause of subsection (2)(b).

The 1999 Act further violates equal protection for the simple fact that it

treats persons injured by the tobacco companies differently solely on the arbitrary

distinction of who gets to a jury verdict first. That is not a rational basis to allow

the claim for one injured party and deny it for another. See Estate of McCall, 134

So. 3d at 902 (invalidating cap that “limited the recovery of a surviving child (and

surviving parents) simply because others also suffered losses”).

The timing of when a person is injured or when that person’s case gets

through the trial process is not a matter that is within the control of the injured

party and yet that is the very thing that separates those who can recover from those

who cannot. The enormity of a defendant’s case-specific conduct does not matter,

33

nor does the extent of the plaintiff’s injuries; instead, everything depends on

chronology. See id. at 904 (finding statute unconstitutional that “treats similarly

situated, eligible survivors differently by reducing the damages awarded without

regard to the fault of the wrongdoer and based solely upon a completely arbitrary

factor, i.e., how many survivors are entitled to recovery”).

A plaintiff’s ability to claim and recover punitive damages is not just a “race

to the courthouse”; it is also a race through the adjudicatory process. A plaintiff

could file the first suit against a defendant but still earn a “subsequent” punitive

award depending on how fast later-filing plaintiffs could get a verdict. Thus, the

ability to recover punitive damages could depend on whether a plaintiff files suit in

a county with a busy docket, or whether a plaintiff’s assigned judge has available

trial dates, or whether a mistrial occurs due to any number of reasons far beyond a

plaintiff’s control. All of these reasons for depriving plaintiffs of punitive damages

as second comers are “purely arbitrary” and “unrelated to any state interest.” St.

Mary’s Hosp. v. Phillipe, 769 So. 2d 961, 972 (Fla. 2000). The supreme court

concluded as much in rejecting the argument that such a limitation was warranted

prior to passage of the 1999 Act. W.R. Grace & Co., 638 So. 2d at 505 (rejecting

argument in part because it was impossible to “devise a fair and effective

solution”).

34

Not only is section 768.73(2) now unnecessary, but it actually subverts the

legislative purpose in providing for punitive damages. Because the award to the

first plaintiff is limited to the harm caused to that plaintiff under Williams, the

effect of the bar to successive awards is to punish the defendant for only a fraction

of the harm caused by its misconduct. Yet it insulates the defendant from further

liability, contrary to the clause’s patent purpose of ensuring sufficient punishment.

In short, the statute does not meet the original objective of avoiding multiple

punishments for the same conduct; all it does is foreclose the right of a subsequent

plaintiff to assert a claim at all. Far from ensuring full punishment and no more, the

statute rewards wrongdoers who commit bad acts on a massive scale. Lacking any

rational relationship to its stated purpose and the classifications drawn, the 1999

Act violates both substantive due process and equal protection.

II. THE TRIAL COURT REASONABLY UPHELD THE JURY’S AWARD OF NON-ECONOMIC DAMAGES.

Standard of Review. Reynolds concedes that the trial court’s order denying

a motion for remittitur is reviewed only for an abuse of discretion. Philip Morris

USA Inc. v. Cohen, 102 So. 3d 11, 18 (Fla. 4th DCA 2012). The trial court’s ruling

on the admissibility of evidence is also reviewed for an abuse of discretion. Jones

v. Alayon, 162 So. 3d 360, 364 (Fla. 4th DCA 2015).

35

A. The Award Was Not Excessive.

The jury’s compensatory damages award of $8.5 million is not the product

of passion and prejudice but instead is perfectly in accordance with the evidence in

this case and awards to other Engle surviving spouses. Alan and Elaine had been

married for 29 years at the time of Elaine’s death. As Reynolds repeatedly

emphasizes, Alan’s job as an engineer on merchant ships required him to be away

from home for a couple of months at a time, after which he was home for a couple

of months without work obligations, allowing the two to spend all of their time

together. (T:2269, 2280, 2339, 2549.) Thus, the time apart was no different than a

couple that works eight or more hours away from each other each day, spending

only nights and weekends together. During their time together, they globe-trotted

and sailed their boat, maintaining a very active lifestyle until Elaine’s COPD

brought it to a halt. (T:1967, 2281, 2285-86, 2536.)

When Elaine got sick, Alan cared for her as much as his job and own health

permitted him to. (T:2287, 2289.) Alan needed to continue working to support

them. The long distance did not, however, keep Alan from ensuring that Elaine

was well cared for when he was unable to be there himself. (T:2551, 2557, 2289,

2360.) He even twice transported her to California so she could be near her

daughter when his own health or work prevented him from caring for her. (T:2551-

52.) When he was not working, Alan was with Elaine around the clock or carefully

36

monitoring her care. (T:2554; Ex. R3:1339, 1342, 2654, 2820, 3157, 3502, 4148,

4322, 5000, 5157, 5248, 5576-77.) When her health got so bad that she had to have

24-hour care, Alan would visit her every day. (T:2290, 2553-54, 2622-23.)

The stress and sadness of caring for Elaine eventually took a toll on Alan’s

own health and he felt “helpless.” (T:2289, 2554.) Elaine was in California the last

few months of her life to be near her daughter because Alan had undergone heart

surgery just a few months prior. (T:2291, 2552.) As soon as he could, Alan

traveled to California too and was with Elaine the day she died. (T:2291, 2556.)

Alan was “devastated” by Elaine’s death; he still loves and misses her. (T:2292,

2557.)

In short, the evidence supports the jury’s award for the pain and suffering

Alan endured as a result of watching his wife deteriorate and eventually die from

an excruciating disease. In arguing to the contrary, Reynolds misrepresents the

testimony in two instances. First, it states that there was no testimony besides

Alan’s “concerning the depth of Plaintiff’s grief or its impact on his life.” (Init. Br.

35.) But Elaine’s daughter testified extensively about how Elaine’s illness “took a

toll on Alan,” with the emotional and financial impact being “too much to handle

almost” or “one of the hardest things,” and that she ultimately had “just no words

to even describe what the man’s gone through with his wife.” (T:2554, 2557.)

Further belying Reynolds’s assertion was Elaine’s own words, which showed that

37

the couple was still very close a year before she died when she requested to have

her body cremated and that her “ashes be returned to Alan and scattered out to sea

with Alan’s.” (Ex. R3:3288.)

Second, Reynolds mentioned that Alan “now travels in the company of a

female friend he knew before his marriage” (Init. Br. 35), but both Alan and this

“female friend” testified that their reconnection, which did not take place until a

year and a half after Elaine’s death, had quickly fizzled and they had not spoken

since 2014. (T:2356, 3315.) In any event, this Court has recognized that while

Florida law makes evidence of re-marriage admissible, such evidence does not

mitigate non-economic damages. Cardona v. Gutierrez, 562 So. 2d 766, 769 (Fla.

4th DCA 1990).

The award in this case is well within the range of compensatory damage

verdicts upheld in other Engle progeny cases for a surviving spouse who had to

watch his or her partner suffer an excruciating illness. See Philip Morris USA, Inc.

v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012) ($10 million); R.J. Reynolds

Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012) ($10.8 million);

Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013) ($10

million). Indeed, Reynolds can point to no Engle progeny appeal reversing the

denial of a remittitur under these facts. Instead it points to the above-cited cases

affirming awards in the $10 million range. In each of those cases, the surviving

38

spouses cared for their dying husbands in the final grueling months of their illness.

Alexander, 123 So. 3d at 71; Cohen, 102 So. 3d at 19; Townsend, 90 So. 3d at 312.

The couples had been married for 30-plus years; in each case the wives had been

on their own in the ensuing years following their husbands’ deaths. Alexander, 123

So. 3d at 71; Cohen, 102 So. 3d at 19; Townsend, 90 So. 3d at 312. The verdict

here is in no way an outlier for an Engle progeny case, and the result is fully

supported by the evidence.

That there are differences in the circumstances of these cases does not make

the lesser award here unreasonable. See Aills v. Boemi, 41 So. 3d 1022, 1028 (Fla.

2d DCA 2010) (“because no injury is exactly like another and different individuals

may be adversely affected to a greater or lesser degree by similar injuries, …

comparisons must be made with caution”). Instead, these circumstances are matters

the jury was entitled to take into account, as Reynolds argued extensively in

closing argument. (T:3582-92.) That the jury did and came up with a figure that is

less than the damages awarded in other cases, or that it perhaps rejected

Reynolds’s spin on the evidence due to credibility assessments are determinations

well within the jury’s province.

Reynolds also argues that Alan’s emotional loss does not reach the level of

“depth and intensity” that is demonstrated in other similar cases, pointing out the

brevity of Alan’s own testimony regarding his suffering from the loss of his wife.

39

(Init. Br. 35, 37.) But Elaine’s daughter explained that Alan was “a man of few

words” who at first appeared “gruff and rough” though he was really a “teddy

bear” once you got to know him. (T:2557.) Whether his testimony reflected a man

who did not love or miss his wife or instead reflected his guarded personality and

demeanor was another matter for the jury to resolve. See Alamo Rent-a-Car, Inc. v.

Clay, 586 So. 2d 394, 395 (Fla. 3d DCA 1991) (familial bond “is one which may

be properly assessed only by the representative of the community as a whole, the

jury”).

“[T]he amount of damages rests solely within the jury’s discretion, and the

jury’s decision must be given great credence.” Tobias v. Osorio, 681 So. 2d 905,

907 (Fla. 4th DCA 1996); see also Bould v. Touchette, 349 So. 2d 1181, 1184-85

(Fla. 1977) (holding that the compensatory damages verdict “should not be

disturbed unless it is so inordinately large as obviously to exceed the maximum

limit of a reasonable range within which the jury may properly operate.”). That

these sort of distinctions and comparisons are difficult is precisely why our system

entrusts them to juries:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.

40

Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla. 1955); see also

Citrus Cty. v. McQuillin, 840 So. 2d 343, 348 (Fla. 5th DCA 2003) (determining

the “dollar value on a human life, measured by the loss and grief of a loved one”

must generally be left to the jury, not the courts); accord R.J. Reynolds Tobacco

Co. v. Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012). The determinations they

make are entitled to a great deal of deference: “The trial court does not sit as a

seventh juror. Neither does the reviewing court reserve the prerogative to overturn

a damages verdict with which it merely disagrees.” Dyes v. Spick, 606 So. 2d 700,

702 (Fla. 1st DCA 1992).

The jury and the trial court “had the unique opportunity to observe [Alan]

and to hear and consider all the evidence” and “were in a position to evaluate and

determine the intensity and weight of [his] loss and to place a monetary value on

that loss.” Alexander, 123 So. 3d at 78. The jury saw fit to compensate Alan for the

pain and suffering he endured in losing the love of his life. And the trial judge, also

having been given the opportunity to listen to the evidence and the testimony in

this trial, denied Reynolds’s post-trial motion for a remittitur. (R:11,992.)

Though the non-economic damages amounted to more than the $5 million

that Plaintiff’s counsel suggested in closing, Reynolds has not cited a case that

would require reversal on that basis alone. Instead, this Court has long held “that a

jury might properly award damages equal to or in excess of those requested by

41

counsel in closing argument.” Lopez v. Cohen, 406 So. 2d 1253, 1256 (Fla. 4th

DCA 1981). Indeed, the Third District affirmed an award that was twice the

amount requested by the plaintiff. Rudy’s Glass Constr. Co. v. Robins, 427 So. 2d

1051, 1053 (Fla. 3d DCA 1983); see also Philip Morris USA, Inc. v. Cuculino, 165

So. 3d 36, 38-39 (Fla. 3d DCA 2015) (affirming $12.5 million award where

plaintiff’s counsel suggested a $10 million award even though court also concluded

improper arguments had been made by plaintiff). That the jury was fully

independent and not swayed by passion or prejudice is further reflected in its

conclusion that Elaine was 50% more at fault than Plaintiff’s counsel had

suggested. (R:11,551; T:3483-84); see Cuculino, 165 So. 3d at 39 (finding jury’s

verdict reflected it was not overly prejudiced by closing arguments “because the

jury did not completely find in favor of Mr. Cuculino”).

While this Court focused in part on the amount plaintiff’s counsel requested

for punitive damages in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487,

491-92 (Fla. 4th DCA 2015), it held the $30 million award excessive because the

trial court made a finding that there was “no logical or sound reason for the jury to

have exceeded the award sought.” There is no such finding in this case. Moreover,

this Court emphasized that “Plaintiff’s counsel begged the jury not to award her

more than $25 million in punitive damages.” Id. In contrast, Plaintiff’s counsel

42

here emphasized $5 million was “just a suggestion” and the jury was free to go

higher or lower. (T:3487.)

And in finding that an $8 million non-economic award to a surviving adult

child who was 54 when her father died was excessive, the First District

emphasized that not only was that twice the amount the plaintiff had suggested, but

the jury “assigned to [the smoker] half of the percentage of fault her counsel

acknowledged during closing argument.” R.J. Reynolds Tobacco Co. v. Webb, 93

So. 3d 331, 339 (Fla. 1st DCA 2012). In contrast, this jury awarded far less than

twice plaintiff’s request and found the smoker to be more at fault than suggested.

The only thing the jury’s findings demonstrate is careful independence and a

straightforward exercise of the very judgment our system entrusts to jurors.

Furthermore, Reynolds failed to offer an alternative figure to the jury that

may be considered appropriate. (T:3580-92); cf. Aills v. Boemi, 41 So. 3d 1022,

1028 n.3 (Fla. 2d DCA 2010) (“When the defendant does not assist the jury in

establishing a range for a verdict, it is more difficult for the defendant to later

suggest that a verdict below the plaintiffs’ request is somehow a verdict which

exceeds the maximum limit of the reasonable range in which the jury was free to

operate.” (quoting Hawk v. Seaboard Sys. R.R., Inc., 547 So. 2d 669, 674 (Fla. 2d

DCA 1989) (Altenbernd, J., concurring)).

43

Reynolds points to nothing in the record that was “indicative of the improper

influences of passion and prejudice working on the jury.” Nordt v. Wenck¸ 653

So. 2d 450, 452 (Fla. 3d DCA 1995). “The fact that a damages award is large does

not in itself render it excessive nor does it indicate that the jury was motivated by

improper consideration in arriving at the award.” Cohen, 102 So. 3d at 18, quashed

on other grounds, No. SC13-35, 2016 WL 375143 (Fla. Jan. 29, 2016). No

irrelevant or overly emotional testimony was presented. See Webb, 93 So. 3d at

338-39 (citing as indicative of the jury’s improper motive the fact that Ms. Webb

gave very emotional testimony about her “personal medical difficulties” and her

father’s close relationship and assistance with her first-born child, who had a fatal

rare chromosomal disorder). The other cases Reynolds cites for its arguments are

also easily distinguished. One involved a compensatory damages verdict nearly six

times what counsel asked for, as well as additional indications that the jury was

motivated by passion or prejudice. Int’l Union of Operating Engineers, Local No.

675 v. Lassitter, 295 So. 2d 634, 639 (Fla. 4th DCA 1974). The other involved a

large award to each of the adult children of the decedent, all of whom had a

“strained” relationship with their father. MBL Life Assur. Corp. v. Suarez, 768 So.

2d 1129, 1136 (Fla. 3d DCA 2000). Here, the trial court reasonably concluded the

damages award was not excessive, a conclusion supported by the record and case

law.

44

B. Evidence of the Number of Deaths Caused by Smoking Had No Relevance to or Impact on the Non-Economic Damage Award.

If this Court affirms on the first issue raised on appeal, it need not consider

Reynolds’s argument regarding the admission of number of deaths. There can be

no question such evidence is relevant to Reynolds’s reprehensibility. Indeed, this

Court affirmed the admission of this same evidence without comment in Philip

Morris USA Inc. v. McKeever, 207 So. 3d 907, 907 (Fla. 4th DCA 2017).6 This

Court also has noted in other contexts the relevancy of the number of deaths to the

reprehensibility analysis. See Cohen, 102 So. 3d at 17 (approving of jury’s

consideration of potential harm to others caused by smoking because “conduct that

risks harm to many is likely more reprehensible than conduct that risks harm to

only a few [and] a jury consequently may take this fact into account”) (citation

omitted), quashed on other grounds, 2016 WL 375143.

In any event, Reynolds makes clear its argument regarding the evidence

goes to its claim that the jury’s compensatory damages award was prejudiced by

the admission of this evidence, a claim it did not make below. (R:11,727-32.) Its

brief notation via footnote that such evidence is not relevant to reprehensibility

waives its argument thereto. See Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla.

6 Although the opinion affirmed the issue without comment, on October

10, 2017, this Court granted Plaintiff’s request to take judicial notice of the briefs in that case, which reflect that this issue was raised there.

45

1997) (concluding argument made in footnote was not “fully brief[ed]” and

therefore “constitute[d] a waiver of the[] claims”).

Turning to the claims that Reynolds does make in its brief, they too are

meritless. Evidence regarding the number of deaths caused by smoking has

relevance beyond reprehensibility in these cases, but there has been no showing it

played any role in the compensatory damages assessment. First, statistics about the

number of people who die from smoking reflects both on Reynolds’s comparative

negligence in this case and the reasonability of Elaine’s reliance on Reynolds’s

fraud. The evidence shows that (1) the dangers of smoking are so astronomical that

the jury should apportion a high degree of fault to Reynolds in light of its conduct

to foster and maintain addiction to those cigarettes and to manipulate consumer

expectations to believe the dangers had not been proven (the comparative fault

issue), and (2) numerous other smokers relied on the industry’s concealment, as

evidenced by the fact that they continued to smoke at such rates and in such

amounts that hundreds of thousands of them die every year (the reliance issue).

These were reasonable bases for admitting the evidence.

Second, Reynolds cannot show that the admission of the evidence infected

the jury’s compensatory damages verdict. The jury was instructed to consider only

the damage caused by Elaine’s death and not to award compensatory damages to

punish Reynolds. (T:3415-16.) None of the elements described touched on the

46

deaths of others. And “juries are presumed to follow the instructions given them”

absent specific evidence to the contrary. Carter v. Brown & Williamson Tobacco

Corp., 778 So. 2d 932, 942 (Fla. 2000).

Reynolds points to a total of four times these figures were even mentioned at

trial, once in opening, once during examination of an expert witness, and twice in

closing argument. (Init. Br. 40.) The mentions in Phase II of the trial obviously

have no bearing on the jury’s compensatory damages award. As for what the

remaining “volumes of inflammatory evidence” were, Reynolds never illuminates

that assertion with a citation to the record to show what the evidence was, whether

it preserved whatever its objections were, or that there was any ruling by the trial

court of which it seeks reversal. E.g., Fla. Dep’t of Agric. & Cons. Servs. v.

Mendez, 98 So. 3d 604, 608 (Fla. 4th DCA 2012). Thus, Reynolds’s claim that the

jury’s compensatory damages award was inflated by this evidence finds no support

in the actual record in this case.

III. REYNOLDS ONLY SEEKS TO “PRESERVE” ITS UNDEVELOPED “CONSTITUTIONAL CLAIMS.”

Reynolds claims a due process violation, but provides no actual legal

argument. It concedes the issue it is raising is precluded by Philip Morris USA, Inc.

v. Douglas, 110 So. 3d 419 (Fla. 2013). It then asserts that there is an additional

issue regarding intentional torts unaddressed by Douglas, but never cites any

adverse ruling on the issue and concedes that it is foreclosed. Since Reynolds has

47

failed to sufficiently brief the issue, it has abandoned whatever additional issue it

contends was not addressed by Douglas. See Shere v. State, 742 So. 2d 215, 217

n.6 (Fla. 1999) (finding claims were “insufficiently presented for review” where

appellant “did not present any argument or allege on what grounds the trial court

erred in denying these claims”).

ARGUMENT ON CROSS-APPEAL

IV. THE TRIAL COURT ERRED IN REDUCING COMPENSATORY DAMAGES BY COMPARATIVE FAULT BECAUSE PLAINTIFF PREVAILED ON HIS INTENTIONAL TORT CLAIMS.

Standard of Review. The trial court’s interpretation of the comparative fault

statute is a question of law reviewed de novo. R.J. Reynolds Tobacco Co. v.

Schoeff, 178 So. 3d 487, 492, 496 (Fla. 4th DCA 2015).

Although Plaintiff concedes that a comparative fault reduction in this case is

now required under Schoeff and R.J. Reynolds Tobacco Co. v. Calloway, 201 So.

3d 753, 766-67 (Fla. 4th DCA 2016), he preserves his argument that those

decisions should be reversed. Namely, damages for intentional torts should not be

reduced, under either the plain language of the comparative fault statute or the

common law. § 768.81(4), Fla. Stat. (1995); Meyer v. Thompson, 861 So. 2d 1256,

1258 (Fla. 4th DCA 2003); Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968,

976 (Fla. 4th DCA 1999).

48

In Schoeff, this Court relied on Merrill Crossings Associates v. McDonald,

705 So. 2d 560 (Fla. 1997), where the supreme court concluded that a negligent

tortfeasor was not entitled to have its liability reduced by the fault of intentional

tortfeasors. Schoeff, 178 So. 3d at 495. But those circumstances are the exact

opposite of Engle cases, where intentional tortfeasors (the tobacco defendants)

seek to have their liability reduced by the negligence of others (the smokers).

Additionally, if Schoeff is correct, then in Merrill Crossings and any other

negligence case grounded on the failure to prevent an intentional tort, comparative

fault would not apply to reduce the liability of one negligent defendant by the fault

of another negligent defendant. Not only does this fly in the face of the plain

language of section 768.81, but it conflicts with the actual result in Merrill

Crossings.

Moreover, Engle progeny cases simply are not “based on conduct grounded

in negligence.” Schoeff, 178 So. 3d at 496. Indeed, in describing the conduct

underlying the negligence claims, this Court quoted several key actions by Engle

defendants that can only be described as intentional, such as how they

“manipulated the nicotine in cigarettes” and “produced advertisement and

marketing strategies destined to mislead the public.” Id.

In actuality, these cases are premised both on the intentional decision by

Reynolds and its conspirators to design their cigarettes to be as addictive as

49

possible, foregoing available and safer alternative designs, and on their relentless

efforts over decades to conceal from the public the dangers their own research

proved. E.g., Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, 80-83 (Fla. 3d

DCA 2013); R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1070 (Fla. 1st

DCA 2010). At the linchpin of all Engle plaintiffs’ claims is the defendants’

intentional conduct.

This is doubly so because Engle progeny plaintiffs never limit their evidence

to only negligent conduct, as that is established by proving that the plaintiff was a

class member. See Douglas, 110 So. 3d at 430 (“Like the strict liability claim, the

Phase I jury already determined that the defendants’ conduct subjects them to

liability to Engle class members under this negligence theory.”). All the evidence

presented to these juries regarding Reynolds and its conspiracy focuses on the

tobacco companies’ intentional misconduct. This Court should reverse the trial

court’s reduction of Plaintiff’s damages, were it not bound to do otherwise under

Schoeff.

CONCLUSION

For the foregoing reasons, the judgment should be affirmed and this Court

should include a citation to Schoeff in denying the cross-appeal.

50

Eric S. Rosen Florida Bar No. 46383 esr@kulaw.com Kelley Uustal, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, Florida 33316 Telephone: (954) 522-6601 Facsimile: (954) 522-6608

Respectfully submitted, /s/ Courtney Brewer John S. Mills Florida Bar No. 0107719 jmills@mills-appeals.com Courtney Brewer Florida Bar No. 890901 cbrewer@mills-appeals.com service@mills-appeals.com (secondary) The Mills Firm, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 (850) 765-0897 (850) 270-2474 facsimile

Counsel for Appellee/Cross-Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following counsel for Appellant/Cross-Appellee by email on October 11, 2017:

William L. Durham II wdurham@kslaw.com Val Leppert vlepert@kslaw.com Chad A. Peterson cpeterson@kslaw.com KSTobacco@kslaw.com KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309

/s/ Courtney Brewer

Attorney

51

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14-point font and complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

/s/ Courtney Brewer

Attorney