R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA, INC. v. MYRON KAPLAN, as Personal Representative of the Estate of Sheila Kaplan

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

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

v.

MYRON KAPLAN, as Personal Representative of the
ESTATE OF SHEILA KAPLAN,
Appellee.

No. 4D18-2880

[March 16, 2022]

Appeal and cross appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. 08-025823.

Scott A. Chesin and Michael Rayfield of Mayer Brown LLP, New York,
NY, and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP,
Washington, DC, for appellant Philip Morris USA Inc.

William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
GA, for appellant R.J. Reynolds Tobacco Co.

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

ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In R.J. Reynolds Tobacco Co. v. Kaplan (Kaplan I), 321 So. 3d 267 (Fla.
4th DCA 2021), we affirmed as to R.J. Reynolds’ argument that punitive
damages were barred by section 768.73, Florida Statutes, based on our
previous decision in R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d
134 (Fla. 4th DCA 2018). 321 So. 3d at 269 n.1. In Konzelman, we
concluded that the pre-1999 version of section 768.73, Florida Statutes,
applies in an Engle 1 progeny personal injury suit that is converted into a
wrongful death action upon the smoker’s death. 248 So. 3d at 135.

In R.J. Reynolds Tobacco Co. v. Kaplan (Kaplan II), SC21-1029, 2022
WL 500293 (Fla. Feb. 18, 2022), our supreme court quashed Kaplan I and
remanded with instructions for reconsideration upon application of its
decision in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla.
2021). In Sheffield, our supreme court disapproved of our decision in
Konzelman and held that the 1999 amendments to section 768.73 apply
to Engle progeny wrongful death actions in which the decedent died after
October 1, 1999. 329 So. 3d at 125.

Based on Sheffield, we reverse and remand to the trial court for
application of the amended version of section 768.73 in determining the
punitive damage award as required by Sheffield.

Reversed and remanded with instructions.

CONNER, C.J., FORST and KLINGENSMITH, JJ., concur.

* * *

No further motions for rehearing shall be permitted.

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

2