R.J. Reynolds Tobacco Company v. Evers

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

R.J. REYNOLDS TOBACCO COMPANY, )
)
)
Appellant, )
)
v. ) Case No. 2D16-1603
)
CINDY EVERS, as Personal )
Representative of the Estate of Jacqueline )
Loyd, )
)
Appellee. )
)

Opinion filed September 15, 2017.

Appeal from the Circuit Court for
Hillsborough County; Emmett L. Battles,
Judge.

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

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

R.J. Reynolds Tobacco Company (R.J. Reynolds) appeals a second

amended final judgment entered in favor of Cindy Evers, in her capacity as personal

representative of the Estate of Jacqueline Loyd. Evers' wrongful death action was

predicated on claims that Loyd was an Engle1 class member and that Loyd's lung

cancer was, at least in part, caused by R.J. Reynolds and Lorillard Tobacco Company

(for whom R.J. Reynolds is the successor in interest).

In bifurcated proceedings, a jury determined that Evers was entitled to

both noneconomic compensatory damages and punitive damages (as against R.J.

Reynolds only). The trial court subsequently directed a verdict in favor of R.J. Reynolds

on certain claims, and as a result, the punitive damages award was vacated and the

compensatory damages award was reduced. Evers appealed and R.J. Reynolds cross-

appealed. See Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139 (Fla. 2d DCA

2015).

In the first appeal, we reversed the directed verdict, thereby reinstating the

punitive damages award. Id. at 1141. However, we declined to reach certain issues

pertaining to the punitive damages award because those issues had not been ruled on

by the trial court. Id. at 1141 n.2. On remand, the trial court entered the second

amended final judgment, finding that the pre-1999 version of the punitive damages

statute applied and that there was clear and convincing evidence supporting a punitive

damages award in excess of the statutory cap. The trial court also concluded that the

action was based on an intentional tort making the compensatory damages award

1Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

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ineligible for a comparative fault reduction. Finally, upon Evers' motion, the trial court

concluded that interest on the judgment accrued from May 15, 2013, the date of the

original judgment.

Although R.J. Reynolds raises numerous arguments on appeal, the issue

of whether the compensatory damages award must be reduced by the percentage of

Loyd's comparative fault is controlled by our recent opinion in Philip Morris USA Inc. v.

Boatright, 217 So. 3d 166 (Fla. 2d DCA 2017), appeal filed, SC17-894 (Fla. May 12,

2017). Therefore we will not address it further. However, as in Boatright, we certify

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

2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), and the

line of cases relying on it2 to the extent that they hold that the core of these types of

actions are grounded in negligence and that the comparative fault statute is applicable

to reduce the verdict by the smoker's comparative fault. R.J. Reynolds also asks this

court to revisit two arguments raised in the prior appeal regarding improper closing

arguments made by Evers' counsel and the trial court's failure to give a jury instruction

on a conspiracy claim. We decline to do so. R.J. Reynolds also argues that allowing

res judicata to apply to the phase I Engle findings3 violates R.J. Reynolds' due process

2PhilipMorris USA Inc. v. McKeever, 207 So. 3d 907 (Fla. 4th DCA 2017);
R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017), appeals
filed, SC17-688 (Fla. Apr. 13, 2017) and SC17-706 (Fla. Apr. 18, 2017); R.J. Reynolds
Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016), review denied, No.
SC16-1937, 2017 WL 1023712 (Fla. Mar. 16, 2017).
3In Engle, the Florida Supreme Court approved various findings relating to
tobacco companies' liability to Engle-progeny plaintiffs. These findings include: (1) "that
smoking cigarettes causes" many specifically listed diseases and conditions; (2) "that
nicotine in cigarettes is addictive"; (3) "that the defendants placed cigarettes on the
market that were defective and unreasonably dangerous"; (4) "that the defendants
concealed or omitted material information not otherwise known or available knowing

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rights, but it acknowledges that issue has already been determined by case law, and it

wishes to preserve the issue for further review. See Philip Morris USA, Inc. v. Douglas,

110 So. 3d 419, 436 (Fla. 2013) (holding that the acceptance of the Engle findings as

res judicata does not violate an Engle defendant's right to due process).

Instead, we affirm the decision of the trial court in all respects, and we

write only to address the issues of the application of the pre-1999 version of the punitive

damages statute and the evidence offered in support thereof and the award of interest

dating back to the date of the original final judgment.

BACKGROUND

Evers sued R.J. Reynolds in 2007, alleging that her mother had been a

member of the class prospectively certified in Engle v. Liggett Group, Inc., 945 So. 2d

1246 (Fla. 2006). The Engle class comprised all Florida residents who, as of November

21, 1996, suffered or had died from diseases caused by an addiction to cigarettes. See

id. at 1274. Evers' amended complaint alleged claims of negligence, strict liability,

fraudulent concealment, and conspiracy to commit fraudulent concealment. Prior to

trial, the trial court ruled that Evers could only seek punitive damages on her claims for

concealment and conspiracy.

that the material was false or misleading or failed to disclose a material fact concerning
the health effects or addictive nature of smoking cigarettes or both"; (5) "that the
defendants agreed to conceal or omit information regarding the health effects of
cigarettes or their addictive nature with the intention that smokers and the public would
rely on this information to their detriment"; (6) "that all of the defendants sold or supplied
cigarettes that were defective"; (7) "that all of the defendants sold or supplied cigarettes
that, at the time of sale or supply, did not conform to representations of fact made by
said defendants"; and (8) "that all of the defendants were negligent." 945 So. 2d at
1276-77.

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 At the end of the first phase of the trial, the jury determined that Loyd was

an Engle class member and that Evers was entitled to recover on all of her claims. The

jury allocated thirty-one percent of the fault to Loyd, sixty percent to R.J. Reynolds, and

nine percent to Lorillard, and the jury awarded $2,950,000 to Evers for noneconomic

compensatory damages. At the end of the second phase of the trial, the jury awarded

$12,360,024 in punitive damages as they related to Evers' conspiracy and concealment

claims. The trial court subsequently directed a verdict in R.J. Reynolds' favor on the

concealment and conspiracy claims, thereby vacating the punitive damages award.

The trial court also reduced the compensatory damages award to $2,035,500 to reflect

the jury's allocation of comparative fault.

After this court reversed the directed verdict on appeal and the case was

remanded, Evers moved for entry of judgment in the full amount of the jury's

compensatory and punitive damages amounts. R.J. Reynolds opposed the motion,

arguing in relevant part that the post-1999 statutory cap on punitive damages applied to

this case.4 Ultimately, the trial court entered the second amended final judgment,

awarding Evers the original compensatory and punitive damages award amounts. After

Evers filed a subsequent motion to amend, the trial court awarded interest accruing

from the date of the original final judgment.

ANALYSIS

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

4R.J.
Reynolds also argued below that the compensatory damages award
should be reduced based on Lloyd's comparative fault, an argument that we will not
address as explained previously herein.

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 We first address R.J. Reynolds' argument that the jury's punitive damages

award should be capped at an amount that is three times the compensatory damages

award amount. R.J. Reynolds contends that the post-1999 version of section 768.73 is

applicable because Evers' wrongful death action is based on Loyd's death in 2007. See

Ch. 99-225, § 23(5), at 1418, Laws of Fla. (explaining that 1999 amendments apply only

to "all causes of action arising after the effective date of this act," which was October 1,

1999). And R.J. Reynolds argues that in order to exceed the statutory cap pursuant to

the post-1999 version, the jury was required to make findings regarding certain

aggravating circumstances, which did not occur in this case. In the alternative, R.J.

Reynolds argues that even if the pre-1999 version of the statute applied, the same

three-to-one cap applied unless Evers proved by clear and convincing evidence that the

award was not excessive, and R.J. Reynolds asserts that she failed to do so.

"Typically, the applicable version of a statute is the one 'in effect when the

cause of action arose.' " R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D491,

D493 (Fla. 1st DCA Feb. 24, 2017), (first quoting D'Angelo v. Fitzmaurice, 863 So. 2d

311, 314 n.9 (Fla. 2003); and then citing §§ 768.72(4) & 768.73(5), Fla. Stat.), reh'g

granted (June 15, 2017).5 And "[i]n many wrongful death actions, the cause of action

accrues on the date of a decedent's death." Id. (citing Nationwide Mut. Fire Ins. Co. v.

5R.J. Reynolds filed a notice of supplemental authority in this appeal
informing this court that its motion for rehearing en banc filed in Allen has been granted.
While we acknowledge that the disposition of Allen could change on en banc review, we
also note that the motion filed in Allen raised more than one issue. Thus it is also
possible that the resolution of the issue of which version of the punitive damages statute
is applicable could remain the same. Moreover, as of the date of this opinion, Allen and
the holdings contained therein remain good law.

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MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994)). "However, Engle-progeny cases

are different." Id. (citing Engle, 945 So. 2d 1246).

In order for a case to qualify as an Engle-progeny case, "a plaintiff's (or

plaintiff's decedent's) 'symptoms of a tobacco-related disease or medical condition' must

have manifested by November 21, 1996." Id. (citing R.J. Reynolds Tobacco Co. v.

Ciccone, 190 So. 3d 1028, 1030 (Fla. 2016)). Here, Evers' amended complaint alleged

that Loyd suffered from or was diagnosed with one or more of the diseases enumerated

in Engle on or before November 21, 1996. And there is no dispute that the jury

determined that Loyd was an Engle class member. Thus, Evers, as the personal

representative of Loyd's estate, "qualified for the res judicata benefits of the Engle

class." Id.; see also Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 118 (Fla.

2002) (quoting Celotex Corp. v. Meehan, 523 So. 2d 141, 147 (Fla. 1988), for the

proposition that "[a] wrongful death action is derivative of the injured person's right,

while living, to recover for personal injury"); Schoeff, 178 So. 3d at 492 n.3 (concluding,

in an Engle-progeny case, that plaintiff's cause of action in a wrongful death case

accrued in 1994 when her husband was diagnosed with lung cancer).

Although it was Evers who sought damages in this case—rather than

Loyd—Evers' wrongful death action, like all Engle-progeny complaints, relates back to

the 1994 Engle class-action complaint. Consequently, "the applicable statutory law

[regarding punitive damages] also relates back to the Engle class." Allen, 42 Fla. L.

Weekly at D493. This is because "a claim for punitive damages is not a separate, free-

standing cause of action," but is instead "actually dependent on the underlying cause of

action." Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1229-30 (Fla. 2016).

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To the extent that R.J. Reynolds' argument could be construed to suggest that the post-

1999 version of the statute applies because Evers filed an independent wrongful death

action rather than amending a prior personal injury action brought by Loyd herself, we

do not agree. Cf. id., at 1222 (involving Engle-progeny wrongful death action brought

by widow many years after her husband's death wherein the court recognized widow's

right to seek punitive damages); Schoeff, 178 So. 3d at 488-89 (involving an Engle-

progeny wrongful death action brought by widow based on her husband's death from

lung cancer caused by his addiction to cigarettes). 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 member, i.e., Loyd's manifestation of a tobacco-related disease or

medical condition prior to November 21, 1996. See Toombs, 833 So. 2d at 118.

Accordingly, because Evers was entitled to the res judicata effect of the

Engle class, her cause of action was not controlled by the 1999 amendment to the

punitive damages statute. Indeed, "[a]pplication of the post-1999 amendments to the

punitive damages statute to [Evers'] claim[s] would impair those substantive rights."

Allen, 42 Fla. L. Weekly at D493 (citing Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352,

1358 (Fla. 1994)).

II. R.J. Reynolds waived the issue of applying a three-to-one cap under
the pre-1999 version of the statute, but even if the cap applied, Evers met her burden of
proving that the punitive damages award was not excessive.

Having determined that the trial court properly applied the 1995 version of

section 768.73(1)(a) and (b), we must next address R.J. Reynolds' contention that even

under the pre-1999 version of the statute, there was a three-to-one cap that could not

be exceeded unless Evers established by clear and convincing evidence that the award

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was not excessive in light of the facts and circumstances that were presented to the

jury. R.J. Reynolds contends that Evers failed to meet her burden.

The first problem with this argument is that it is procedurally barred. R.J.

Reynolds did not specifically argue that the pre-1999 version of the statute imposed a

cap on the punitive damages award amount until the February 1, 2016, hearing on

Evers' motion to enter final judgment, which occurred after this court reversed the

original final judgment and remanded the case to the trial court. Indeed, Evers

objected, and the trial court below questioned the propriety of R.J. Reynolds' raising the

issue so late. However, in an abundance of caution, Evers asked the trial court to rule

on the merits of the issue for purposes of appellate review in the event that this court

deemed the argument properly raised. The trial court ultimately concluded that Evers

met her burden of proving by clear and convincing evidence that the award was not

excessive.

We agree with Evers that R.J. Reynolds should have raised this issue in

its motion for remittitur, which must be served within ten days after the jury verdict. See

Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988, 991 (Fla. 1st DCA 2002)

(recognizing that motion for remittitur must be served within ten days after return of jury

verdict). But nowhere in R.J. Reynolds' motion for new trial, which included the request

for a remittitur, did it argue that under the pre-1999 version of the statute, a three-to-one

cap applied.

Although R.J. Reynolds argues in its reply that it presented evidence and

arguments on this issue to the jury, it has failed to point to any specific document within

the voluminous record that supports that assertion. Further, we are not persuaded that

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R.J. Reynolds sufficiently preserved the issue by making brief references in its briefs

filed in the prior appeal and on remand to the trial court to cases that applied the pre-

1999 statutory cap.

However, even if this claim was properly addressed on the merits, R.J.

Reynolds is not entitled to relief. The cap under the pre-1999 version of the statute can

only be exceeded if the plaintiff establishes by clear and convincing evidence that the

award was not excessive. We generally review a trial court's award of punitive

damages for abuse of discretion. See Owens-Corning Fiberglas Corp. v. Ballard, 749

So. 2d 483, 488 (Fla. 1999). But we conduct de novo review of a trial court's

determination as to whether a punitive damage award violates due process. See Engle,

945 So. 2d at 1263. As part of the due process analysis, we must determine whether

there is a reasonable relationship between the compensatory damages award and the

punitive damages award, which includes consideration of the defendant's conduct and

harm to the plaintiff. Id. at 1264-65 (citing State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408, 424-26 (2003)).

In arguing that Evers failed to meet her burden of proving that the punitive

damages award was not excessive, R.J. Reynolds argues that the trial court improperly

relied upon Evers' mischaracterizations of the Engle findings and failed to explain how

any of its findings regarding the punitive damages were related to the facts of Evers'

case. R.J. Reynolds also contends the award was erroneous because: (1) it [R.J.

Reynolds] is subject to cumulative awards against it for the same conduct, (2) a punitive

award above the cap is unnecessary for punishment or deterrence, (3) the conduct that

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served as the basis for the award happened decades ago and could not possibly recur,

and (4) the trial court ignored substantial mitigating evidence.

In the trial court's order, it explicitly states that it "reviewed the record," and

attached to Evers' supplemental memorandum in support of her second amended

motion for entry of judgment were trial testimony excerpts that included expert opinion

on how Loyd was personally affected. Thus it is clear to this court that the trial court

had before it the record evidence presented at trial, including a portion that Evers

submitted specifically in support of her argument that she was entitled to the punitive

damages as awarded by the jury. In light of the voluminous trial record, we are not

surprised that the trial court elected not to detail all of the factual evidence upon which it

relied nor are we convinced that the summary reference to a review of the record

indicates that the trial court failed to consider anything other than Evers' arguments or

that it ignored R.J. Reynolds' mitigating evidence. R.J. Reynolds takes issue with the

trial court's failure to identify the conduct that the trial court determined was

"exceptionally egregious, targeted, lacking in confusion, and substantial," arguing that In

re Standard Jury Instructions (Civil Cases 89-1), 575 So. 2d 194, 196 (Fla. 1991),

defines "clear and convincing evidence" as "precise" and "explicit." But the Florida

Supreme Court's use of such a definition does not equate to a requirement that a trial

court explicitly list the factual evidence upon which it relied.

The fact that the trial court paraphrased the Engle findings and cited to

them as part of the clear and convincing evidence supporting the punitive damages

award does not change the result. Notably, in listing the paraphrased findings, the trial

court stated that the evidence upon which it relied was not limited to those findings.

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While there is no res judicata effect of the Engle findings as applied to claims for

punitive damages, Soffer, 187 So. 3d at 1227, there is nothing prohibiting a trial court's

use of the findings as a frame of reference when deciding whether a plaintiff has proven

his or her individual punitive damages.

R.J. Reynolds also argues that the trial court erroneously shifted the

burden of proof to it based on the trial court's finding that R.J. Reynolds failed to refute

Evers' evidence. However, we do not agree with that interpretation. Rather, we

conclude that that finding was merely one factor supporting the trial court's conclusion

that Evers' presented clear and convincing evidence to establish that the punitive

damages award was not excessive. Indeed, in other contexts, both the Florida

Supreme Court and this court have referred to evidence being "clear and convincing"

where unrebutted testimony was presented. See, e.g., Conahan v. State, 118 So. 3d

718, 733 (Fla. 2013); Dep't of Children & Family Servs. v. L. McC., 820 So. 2d 1064,

1066 (Fla. 2d DCA 2002) ("The record reflects that the evidence presented . . . was

generally unrebutted and met the clear and convincing standard.").

Based on the fact that the trial court had the trial record before it, including

testimony that linked R.J. Reynolds' conduct to the harm suffered by Loyd, and based

on the trial court's acknowledgement that it reviewed the record and did not limit itself to

consideration of the Engle findings, we cannot say that no reasonable judge would have

reached the same conclusion as the trial judge in this case. See Canakaris v.

Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Nor can we say that the punitive

damages award was so excessive so as to violate due process where it is clear to this

court that it was based "upon the facts and circumstances of [R.J. Reynolds'] conduct

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and the harm to [Loyd]." Engle, 945 So. 2d at 1265. Consequently, we conclude that

the trial court properly determined that the punitive damages award was not excessive

under the 1995 version of section 768.73 and that clear and convincing evidence

supported a punitive damages award in excess of the statutory cap.6

III. The trial court properly awarded interest accruing from the date of the
original judgment.

Finally, R.J. Reynolds argues that the trial court erred in awarding interest

on the judgment from the date of the original final judgment entered on May 15, 2013.

R.J. Reynolds argues that interest can only be awarded from the date of a first judgment

where the original judgment is merely modified on appeal, rather than reversed. R.J.

Reynolds notes that this court, in the initial appeal, declined to reach certain issues

regarding the punitive damages award because the trial court had not ruled on them.

R.J. Reynolds also notes that in the prior appeal, this court did not address R.J.

Reynolds' argument concerning the application of comparative fault to the

compensatory damages award, despite its request that this court do so. Based on

those assertions, R.J. Reynolds contends that further judicial labor was required below

and, therefore, that interest should have been awarded from the date of the second

amended final judgment.

We review de novo a trial court's decision regarding judgment interest.

See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 34 (Fla. 4th DCA 2011).

6We note that R.J. Reynolds also made the argument that under both the
pre-1999 or post-1999 versions of section 768.73, Florida Statutes, the three-to-one cap
on punitive damages should be measured by the compensatory award as reduced for
comparative fault. However, because this court has recently rejected the argument that
a compensatory award should be reduced in that manner, this argument too fails. See
Boatright, 217 So. 3d at 171-72.

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 Generally, interest on a money judgment begins accruing on the date of

judgment. See § 55.03(3), Fla. Stat. (2012); Amerace Corp. v. Stallings, 823 So. 2d

110, 114 (Fla. 2002); Shoemaker v. Sliger, 187 So. 3d 863, 865 (Fla. 5th DCA 2016).

Where a party appeals a final judgment and only the amount of the award is modified

after the appeal, the accrual date for interest does not change and the interest accrues

from the date of the original judgment as modified. See Shoemaker, 187 So. 3d at 865-

66; St. Cloud Utils. v. Moore, 355 So. 2d 446, 447-48 (Fla. 4th DCA 1978).

R.J. Reynolds relies heavily on Guy v. Kight, 431 So. 2d 653, 656 (Fla. 5th

DCA 1983), arguing that our reversal in the first appeal necessarily required further

judicial labor below, thereby requiring that any award of interest had to accrue from the

date of the second amended final judgment. But Kight does not control this case.

Admittedly, this court "reversed" the original final judgment in the prior

appeal. See Evers, 195 So. 3d at 1140-41. However, the effect of our reversal was to

reverse the directed verdict on the concealment and conspiracy claims, reinstate the

jury verdicts on those claims, and reinstate the punitive damages award (which was tied

only to those two claims). Id. In doing so, we declined to address "certain issues"

related to the punitive damages award because they had not yet been addressed by the

trial court due to the entry of the directed verdict (which nullified the punitive damages

award). Id. at 1141 n.2.

However, R.J. Reynolds asserts that those "certain issues" were the

arguments concerning the applicability of the statutory cap and the reduction for

comparative fault. Notably, those issues only relate to the amount of the final judgment.

While the trial court had to decide whether the damage awards were subject to

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reduction based either on comparative fault or due to a statutory cap, the underlying jury

verdicts—entered in favor of Evers—were not disturbed. Even if R.J. Reynolds had

prevailed on the comparative fault and statutory cap arguments below, the only

difference between the original final judgment and the second amended final judgment

would have been the amount. The fact that we used the word "reversed" in the prior

appeal is not dispositive because our reversal only extended to the amount of the award

and otherwise amounted to an affirmance in all other respects. See Moore, 355 So. 2d

at 448 n.1 (explaining that interest should run from the date of the original judgment

because although the appellate court had previously reversed the trial court judgment

based on the improper application of comparative negligence and directed the trial court

to enter a new judgment, the reversal only went to the amount of the award and

otherwise acted as an affirmance on other issues (relying on Smith v. Goodpasture, 189

So. 2d 265, 267 (Fla. 4th DCA 1966))). Accordingly, the trial court properly awarded

interest accruing from the date of the original final judgment.

CONCLUSION

The trial court properly determined that the 1995 version of section 768.73

applied to this case. Although we conclude that R.J. Reynolds waived its argument that

the 1995 version of the statute still required imposition of a three-to-one cap on the

punitive damages award, we alternatively hold that the trial court properly determined

that clear and convincing evidence supported the punitive damages award that

exceeded the cap and that the award was not excessive. Finally, we hold that the trial

court properly awarded interest as accruing from the date of the original final judgment.

Affirmed.

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SILBERMAN and KELLY, JJ., Concur.

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