FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Review of the Decision of the District Court of
Appeal-Direct Conflict of Decisions Fourth District - Case
No. 4D13-1765 (Broward County)
S. Mills and Courtney Brewer, The Mills Firm, P.A.,
Tallahassee, Florida; Alex Alvarez, The Alvarez Law Firm,
Coral Gables, Florida; Gary M. Paige, Gordon & Doner,
Davie, Florida; Laurie J. Briggs and T. Hardee Bass III of
Searcy Denney Scarola Barnart & Shipley, PA, West Palm
Beach, Florida; and Robert S. Glazier of Law Office of Robert
S. Glazier, Miami, Florida, for Petitioner.
B. Ayer, Jones Day, Washington, D.C. and Charles R.A. Morse,
Jones Day, New York, New York; Robert C. Weill and Eric L.
Lundt of GrayRobinson, P.A. Fort Lauderdale, Florida, for
M. Farmer, Sr. of Farmer, Jaffe, Weissing, Edwards, Fistos
& Lehrman, Fort Lauderdale, Florida, Amicus Curiae
Florida Justice Association.
H. Humphries, Steven L. Brannock, Maegen P. Luka, and Thomas
J. Seider, Brannock & Humphries, Tampa, Florida, Amicus
Curiae Engle Plaintiffs' Firms.
Schoeff seeks review of the decision of the Fourth District
Court of Appeal in R.J. Reynolds Tobacco Co. v.
Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), on the
ground that it expressly and directly conflicts with the
First District Court of Appeal's decision in R.J.
Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st
DCA 2013), on the applicability of the comparative fault
statute to Engle  progeny cases. We have jurisdiction.
See art. V, § 3(b)(3), Fla. Const.
that the comparative fault statute does not apply to
Engle progeny cases in which the jury finds for the
plaintiff on the intentional torts such that the compensatory
damage awards in those cases are not subject to reduction.
For the reasons that follow, we quash the Fourth
District's decision on both the compensatory and punitive
damages issues below and approve the First District's
decision to the extent that it did not reduce compensatory
damages under the comparative fault statute.
1994, the Engle class action was filed against
tobacco companies including R.J. Reynolds Tobacco Company
(RJR). The class included all Florida smokers who had
contracted diseases caused by smoking. The Engle
class raised claims including strict liability, negligence,
fraudulent concealment, and conspiracy. Engle v. Liggett
Grp., Inc., 945 So.2d 1246, 1255-57, 1257 n.4 (Fla.
2006). In the first phase of the trial, the jury determined
that the tobacco companies were negligent, marketed defective
cigarettes, and conspired to conceal the risks of smoking.
Id. at 1277. In the second phase of the trial, the
jury found the defendants were liable to three class
representatives and awarded the class a total of $145
billion in punitive damages. Id. at 1257.
The defendants appealed. Id. at 1258.
appeal, the Third District decertified the class and found
the punitive awards excessive. Liggett Grp. Inc. v.
Engle, 853 So.2d 434, 442-58 (Fla. 3d DCA 2003). This
Court agreed that the punitive awards were excessive and that
continued class treatment was not feasible "because
individualized issues such as . . . comparative fault . . .
predominate." Engle, 945 So.2d at 1268. This
Court also authorized members of the decertified class to
file individual cases and held that findings from the first
phase of trial including defect, negligence, concealment, and
conspiracy would have res judicata effect in their
individual cases. Id. at 1269-70.
The district court below described the proceedings at trial
in this case:
R.J. Reynolds Tobacco Company ("RJR") appeals the
final judgment entered in favor of Joan Schoeff Spolzino as
Representative of the estate of her deceased husband, James
Schoeff ("Plaintiff"). RJR raises four issues on
appeal. First, it contends that the trial court erred in
denying its motion for a directed verdict because Plaintiff
failed to prove addiction causation. Second, it asserts that
certain comments made by Plaintiff's counsel during
closing necessitate a new trial. Third, it argues that the
court erred in denying its motion to remit the jury's
compensatory and punitive damages awards. Fourth, it argues
that the court's application of the Engle
findings violated its due process rights. Plaintiff
cross-appeals, arguing that the court erroneously reduced the
jury's compensatory damages award based on Mr.
Schoeff's comparative fault. We reverse and remand for
remittitur of the punitive portion of the judgment, and
affirm in all other respects.
The instant case is an Engle progeny case. See
Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.
2006). Plaintiff filed suit against RJR asserting membership
in the Engle class because her husband died from
lung cancer "caused by his addiction to
cigarettes." In her suit, Plaintiff alleged causes of
action for strict liability, fraud by concealment, conspiracy
to commit fraud by concealment, negligence, and gross
negligence. She also admitted that Mr. Schoeff shared some
fault for his smoking-related injuries and represented that
she would "seek apportionment of fault, pursuant to the
principles of comparative fault, on the counts for negligence
and strict liability; however not with respect to the counts
constituting intentional torts as pled in this action."
b) The Trial
The case proceeded to trial in two phases in the manner we
approved in R.J. Reynolds Tobacco Co. v. Brown, 70
So.3d 707, 714 (Fla. 4th DCA 2011). In the first phase, the
jury was asked to: 1) determine whether Mr. Schoeff was a
member of the Engle class; 2) if so, whether
RJR's conduct was the legal cause of his death; and 3)
determine damages. The jury was also asked to determine
whether Plaintiff was entitled to punitive damages if it
found against RJR on Plaintiff's claims for fraudulent
concealment or conspiracy to fraudulently conceal.
After considering the evidence, the jury returned its
verdict, finding that Mr. Schoeff was addicted to nicotine,
his addiction was a legal cause of his lung cancer and death;
and that the negligence of RJR as well as the defective and
unreasonably dangerous cigarettes manufactured by RJR were a
legal cause of Mr. Schoeff's lung cancer and death. It
allocated Mr. Schoeff's comparative fault for his
injuries at 25%. Additionally, the jury found that Mr.
Schoeff detrimentally relied on statements made by RJR which
concealed or omitted material information, and that such
reliance was a legal cause of his cancer and death. Based on
these findings, the jury awarded Plaintiff $10.5 million in
compensatory damages and found that punitive damages were
The second phase of the trial concerned the proper amount of
punitive damages. During closing arguments in this phase,
Plaintiff's counsel asked the jury to award Plaintiff $25
million in punitive damages and no more. Specifically,
counsel stated: "you may think that's too low, but
we urge you not to go above that. Please do not go above 25
million. Do not. She doesn't want that. Do not go above
that." Despite Plaintiff's urging, the jury returned
a verdict assessing $30 million in punitive damages against
c) Post-Trial Motions and Rulings
Following the trial, RJR filed a motion asking the court to
reduce the compensatory damages award to reflect the
comparative fault assigned to Mr. Schoeff by the jury.
Plaintiff filed a response in opposition arguing that the
comparative fault statute should not apply since the jury
found RJR committed the intentional tort of fraudulent
concealment. Additionally, RJR moved for a new trial on
evidentiary grounds. In the alternative, RJR moved for
remittitur of both the compensatory and punitive damages
awards, arguing that they were both excessive and not
supported by the evidence.
Considering the above pleadings, the trial court granted
RJR's motion to enter judgment consistent with the
jury's finding on comparative fault, denied RJR's
motion for a new trial, and denied RJR's motion to remit
the compensatory and punitive damages awards. In granting
RJR's motion to reduce the jury's compensatory award
by Mr. Schoeff's comparative fault, the court ruled that
Plaintiff waived her argument regarding comparative fault
based on representations counsel made to the jury.
Alternatively, the court ruled that even if Plaintiff had not
waived her argument, the intentional tort exception to the
comparative fault statute would not apply as Plaintiff's
suit was a products liability suit at its core. In denying
RJR's motion to remit the punitive damages award, the
court recognized that there was no logical basis for the jury
to award a larger amount than Plaintiff requested, but found
that the jury's award was "NOT infected by bias,
prejudice, passion or any other sentiment against
In accordance with its above rulings, the court entered final
judgment awarding Plaintiff $7, 875, 000 in compensatory
damages and $30 million in punitive damages, for a total of
$37, 875, 000. This appeal follows.
Schoeff, 178 So.3d at 488-90 (footnotes omitted).
The Fourth District affirmed the trial court's denial of
RJR's motion for a directed verdict, denial of the motion
for a new trial, grant of RJR's motion to remit the
jury's compensatory damages, and application of
Engle findings to Mrs. Schoeff's case.
Id. at 490.
Fourth District also concluded that the $30 million punitive
damages award was unconstitutionally excessive in light of
the $10.5 million compensatory damages. Id. at 491.
The decision further held that even if the punitive damages
were not unconstitutional, remittitur was necessary under
section 768.74(5)(e), Florida Statutes (2012), because Mrs.
Schoeff had begged the jury not to award more than $25
million and a larger award "could [not] be adduced in a
logical manner." Id. at 491-92 (quoting §
768.74(5)(e)). Finally, the Fourth District majority
determined that the proper remedy for the punitive damages
issue would be for the trial court to grant RJR's motion
for remittitur or hold a new trial on punitive damages if RJR
did not agree to the amount of the remittitur. Id.
the district court rejected Mrs. Schoeff's cross-appeal
regarding the trial court's reduction of compensatory
damages, finding that she had waived the intentional tort
exception by arguing comparative fault to the jury because no
reasonable jury could "possibly understand that its
comparative fault determination was going to have no effect
whatsoever on its compensatory damages award."
Id. at 494. Reviewing the trial court's decision
de novo, the majority also found that the comparative fault
statute applies to Engle progeny cases in which the
jury finds for the plaintiff on the intentional tort claims
because Engle progeny cases are "grounded in
negligence." Id. at 495-96. The majority
acknowledged that its de novo standard of review created
conflict with the First District's review for abuse of
discretion in Sury. See id. (citing
Sury, 118 So.3d 849). The First District held in
Sury that the comparative fault statute does not
apply to Engle progeny cases in which the jury finds
for the plaintiff on intentional tort claims because they
sound in intentional tort rather than negligence.
Sury, 118 So.3d at 852. We accepted jurisdiction.
first consider issues related to compensatory damages: the
comparative fault statute, its intentional tort exception,
and whether Mrs. Schoeff waived the intentional tort
exception by arguing comparative fault of the smoker to the
jury. We next consider whether the punitive damages were
unconstitutionally excessive and whether the Fourth District
properly found that the trial court abused its discretion in
denying RJR's motion for remittitur on the punitive
the comparative fault statute applies to Mrs. Schoeff's
case requires this Court to interpret the statute. Statutory
interpretation is a pure question of law reviewed de novo.
See Polite v. State, 973 So.2d 1107, 1111 (Fla.
2007). We review for abuse of discretion the trial
court's finding that Mrs. Schoeff's trial conduct
prevented her from asserting the intentional tort exception.
See Schoeff, 178 So.3d at 492 (quoting R.J.
Reynolds Tobacco Co. v. Hiott, 129 So.3d 473, 475 (Fla.
1st DCA 2014)); Sury, 118 So.3d at 851.
Comparative Fault Statute
analyzing its plain meaning, this Court must determine which
version of the comparative fault statute controls. The Fourth
District held, and Mrs. Schoeff agrees, that the applicable
statute is the 1992 version because it was in effect when the
cause of action accrued in 1994. Schoeff, 178 So.3d
at 492 n.3 (citing Basel v. McFarland & Sons,
Inc., 815 So.2d 687, 691-96 (Fla. 5th DCA 2002)). RJR
argues that the proper version of the statute is the 2011
version because the Legislature provided the following:
This act is remedial in nature and applies
retroactively. The Legislature finds that the
retroactive application of this act does not
unconstitutionally impair vested rights. Rather, the law
affects only remedies, permitting recovery against all
tortfeasors while lessening the ultimate liability of each
consistent with this state's statutory comparative fault
system, codified in s. 768.81, Florida Statutes.
Ch. 2011-215, § 3, Laws of Fla. (emphasis added). The
2011 version became effective June 23, 2011.
Fourth District improperly relied upon Basel to find
that the 1994 version was the proper version of the statute.
Basel held that the 1999 version of the statute was
not retroactive because it included no explicit language
regarding retroactivity. Basel, 815 So.2d at 691-96.
The 2011 amendment explicitly provided for its retroactive
application. The 2011 statute controls.
Plain Meaning of the Comparative Fault Statute
goal of statutory interpretation is to identify the
Legislature's intent. Crews v. State, 183 So.3d
329, 332 (Fla. 2015). To do so, this Court first consults the
plain meaning of the statute's text. W. Fla.
Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla.
2012). "When the statute is clear and unambiguous,
" we use the plain language of the statute and avoid
rules of statutory construction to determine the
Legislature's intent. Daniels v. Fla. Dept. of
Health, 898 So.2d 61, 64 (Fla. 2005); see also QBE
Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 94 So.3d
541 (Fla. 2012).
comparative fault statute reduces defendants' liability
by the percentage of fault of other culpable parties. §
768.81, Fla. Stat. (2011). The statute provides, "In a
negligence action, contributory fault chargeable to the
claimant diminishes proportionately the amount awarded as
economic and noneconomic damages for an injury attributable
to the claimant's contributory fault, but does not bar
recovery." § 768.81(2), Fla. Stat. (2011).
"Negligence action" is defined as "without
limitation, a civil action for damages based upon a theory of
negligence, strict liability, products liability, [or]
professional malpractice." Id. §
768.81(1)(c). The intentional tort exception is codified in
subsection (4) of the statute: "Applicability.-- This
section does not apply . . . to any action based upon an
intentional tort . . ." Id. § 768.81(4).
plain language of the comparative fault statute is
unequivocal: the comparative fault statute applies to an
enumerated, but not exhaustive, list of negligence claims and
"does not apply . . . to any action based upon an
intentional tort." Id. This creates confusion
for damages in Engle progeny cases because the same
injuries-a smoker's illness or death and survivors'
damages-are the result of both negligence and intentional
torts. Generally, a defendant may not be required to pay
twice for the same element of damages. See Dobbs v.
Griffith, 70 So.2d 317, 318 (Fla. 1954); Besett v.
Basnett, 437 So.2d 172 (Fla. 2d DCA 1983). Compensatory
damages in Engle progeny cases cannot be allocated
among the intentional tort and simple negligence claims
without violating this rule against double damages.
Therefore, if the comparative fault statute is applied to