R.J. REYNOLDS TOBACCO COMPANY, Appellant,
CINDY EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Emmett L.
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.
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
Engle 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).
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).
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 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.
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 it 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 findings violates R.J. Reynolds' due process
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
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.
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.
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.
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. Ultimately, the trial court
entered the second amended final judgment, awarding Evers the
original compensatory and punitive damages award amounts.