PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY,
Appellants,

v.

JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of
the ESTATE OF MARY ELNA COOPER,
Appellee.

No. 4D16-897

[January 10, 2018]

Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
Nos. 08-026350 (19) and 08-080000 (19).

Mark A. Belasic and Dennis L. Murphy of Jones Day, Cleveland, Ohio;
Jason T. Burnette of Jones Day, Atlanta, Georgia; and Benjamin M.
Flowers of Jones Day, Columbus, Ohio, for appellant R.J. Reynolds
Tobacco Company.

Patricia Melville of Boies, Schiller & Flexner, LLP, Miami; and Geoffrey
J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for
appellant Philip Morris USA, Inc.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach; and Scott P. Schlesinger and Jonathan R. Gdanski of Schlesinger
Law Offices, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

In this Engle 1 progeny case, Philip Morris USA, Inc. and R.J. Reynolds
Tobacco Company (“the defendants”) appeal a final judgment in favor of
Mary Cooper (“the plaintiff”) and orders denying their various post-trial
motions, and the appellee, the personal representative of the plaintiff’s
estate, cross-appeals the final judgment. The defendants raise two
issues on which we affirm without further comment.

1 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
 However, we agree with the plaintiff’s argument on cross-appeal that
she should be permitted to seek punitive damages on her non-intentional
tort counts. In the proceedings below, the trial court denied the
plaintiff’s motion to amend her complaint to seek punitive damages on
her non-intentional tort claims based on Soffer v. R.J. Reynolds Tobacco
Co., 106 So. 3d 456, 459-61 (Fla. 1st DCA 2012), and R.J. Reynolds
Tobacco Co. v. Ciccone, 123 So. 3d 604, 616 (Fla. 4th DCA 2013), which
held that Engle progeny plaintiffs are bound by the procedural posture of
Engle and thus are not entitled to seek punitive damages on those
counts. After the trial court’s determination, however, the Florida
Supreme Court quashed those decisions and determined that Engle
plaintiffs “are permitted to seek punitive damages on their claims for
negligence and strict liability.” Soffer v. R.J. Reynolds Tobacco Co., 187
So. 3d 1219, 1227 (Fla. 2016) (quoting Philip Morris USA, Inc. v. Hallgren,
124 So. 3d 350, 354 (Fla. 2d DCA 2013)).

Consequently, we reverse and remand. On remand, the plaintiff is
entitled to seek leave from the trial court to add claims for punitive
damages on her negligence and strict liability counts. Should the
proceedings progress to trial, the jury should address both entitlement
and amount with respect to the new claims.

Reversed and remanded.

CIKLIN, KLINGENSMITH, JJ., and BELANGER, ROBERT E., Associate Judge,
concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2