PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants,
ROBERT A. GORE, SR., as Personal Representative of the Estate of GLORIA H. GORE, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Cynthia A. Cox, Judge;
L.T. Case No. 312008010052CA04.
Geoffrey J. Michael of Arnold & Porter LLP, Washington,
DC, and David Northrip of Shook, Hardy & Bacon, Kansas
City, MO, for Appellant Philip Morris USA, and Gregory G.
Katsas of Jones Day, Washington, DC, and Charles R.A. Morse
of Jones Day, New York, NY, for Appellant R.J. Reynolds
D. Rockenbach and Andrew A. Harris of Burlington &
Rockenbach, P.A., West Palm Beach, and Jason L. Odom of
Gould, Cooksey, Fennell, P.A., Vero Beach, for appellee.
an Engle progeny wrongful death case brought by the
plaintiff, Robert Gore, personal representative of the estate
of his late wife, Gloria Gore, against the defendants, Philip
Morris and R.J. Reynolds. The defendants appeal a final
judgment awarding the plaintiff $460, 000 against each of
them after the trial court applied the jury's comparative
fault determination. The plaintiff cross-appeals the
judgment, raising issues concerning punitive damages and
comparative fault. We affirm as to the main appeal, and
reverse and remand as to both issues raised in the
the main appeal, we conclude that the defendants failed to
preserve any Daubert challenge to the testimony of the
plaintiff's expert historian, Dr. Proctor, concerning the
defendants' use of ammonia in an effort to increase the
addictiveness of cigarettes. "In order to be preserved
for further review by a higher court, an issue must be
presented to the lower court and the specific legal argument
or ground to be argued on appeal or review must be part of
that presentation if it is to be considered preserved."
Sunset Harbour Condo. Ass'n v. Robbins, 914
So.2d 925, 928 (Fla. 2005) (quoting Tillman v.
State, 471 So.2d 32, 35 (Fla. 1985)).
trial court ruled that Dr. Proctor could testify regarding
his historical review of the defendants' efforts to
manipulate the addictiveness of cigarettes, but that he was
not qualified to give an opinion on the chemistry of tobacco.
To the extent the defendants now suggest on appeal that Dr.
Proctor's testimony went beyond a historical opinion and
ventured into a scientific opinion (i.e., that adding ammonia
to cigarettes increases their addictiveness), the defendants
failed to preserve any Daubert objection.
the defendants raised the Daubert issue in a
pre-trial motion in limine, the trial court deferred ruling
on it until trial. At trial, however, the defendants never
made any contemporaneous objection raising the specific
argument that Dr. Proctor's ammonia testimony violated
Daubert or section 90.702, Florida Statutes. Indeed,
there are no references by the defendants to
"Daubert" or "section 90.702"
anywhere in the trial transcript. We conclude, therefore,
that this issue was not preserved for appellate review.
See Boyles v. A & G Concrete Pools, Inc., 149
So.3d 39, 43-44 (Fla. 4th DCA 2014) (when a trial court
declines to rule on a motion in limine before trial, the
moving party must raise a contemporaneous objection at trial
to preserve the issue for appellate review).
respect to the defendants' remaining claims on appeal, we
reject the defendants' due process and preemption
arguments. See Philip Morris USA, Inc., v. Douglas,
110 So.3d 419, 430-36 (Fla. 2013); R.J. Reynolds Tobacco
Co. v. Marotta, 214 So.3d 590, 605 (Fla. 2017).
to the cross-appeal, we agree with the plaintiff's
argument that he is permitted to seek punitive damages on his
claims for negligence and strict liability. See Soffer v.
R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1221-22 (Fla.
2016). The plaintiff preserved this issue by making a
conditional request to amend his complaint to seek punitive
damages on his non-intentional tort claims in the event the
Florida Supreme Court decided Soffer in his
favor. See Hardin v. R.J. Reynolds Tobacco
Co., 208 So.3d 291, 292 (Fla. 3d DCA 2016) (holding that
the plaintiff properly preserved the same issue by asking the
trial court "to provisionally grant her motion to allow
punitive damages for her non-intentional tort claims pending
the Florida Supreme Court's disposition of
Soffer"). On remand, the plaintiff is entitled
to seek leave from the trial court to add claims for punitive
damages on his non-intentional tort claims. See Philip
Morris USA, Inc. v. Blackwood, 4D16-897, 2018 WL 354549,
at *1 (Fla. 4th DCA Jan. 10, 2018).
we address the plaintiff's argument that the trial court
should not have applied comparative fault to reduce the
compensatory damages award. Because the jury found for the
plaintiff on the intentional tort claims, the compensatory
damages award may not be reduced by comparative fault unless
the plaintiff waived the intentional tort exception to the
comparative fault statute. See Schoeff v. R.J. Reynolds
Tobacco Co., SC15-2233, 42 Fla.L.Weekly S951, 2017 WL
6379591 at *7 (Fla. Dec. 14, 2017). The intentional tort
exception, however, is not waived simply because an
Engle plaintiff argues comparative fault on the
negligence counts. Id. at *8.
the plaintiff's arguments to the jury were similar to
those in Schoeff that the Florida Supreme Court
found to be insufficient to constitute a waiver of the
intentional tort exception. Moreover, although the defendants
now attempt to distinguish Schoeff on the basis that
the verdict form here, unlike in Schoeff, asked
jurors to apportion fault after the questions
concerning the intentional tort claims, we are unpersuaded by
this argument. The verdict form in this case, to which the
defendants agreed, does not give rise to a finding that the
plaintiff intentionally relinquished the right to seek
punitive damages for his non-intentional tort
claims. See Smith v. R.J. Reynolds Tobacco
Co., No. 13-14316, 2018 WL 549141, at *7 (11th Cir. Jan.
25, 2018) (rejecting the defendant's waiver argument, in
part because the defendant "did not object to the
verdict form that was given to the jury, " even though
the verdict form "could clearly have been drafted in a
way that minimized, or even eliminated, any jury
Eleventh Circuit explained: "It is difficult to conclude
that a litigant who has consistently proclaimed his
opposition to apportionment of fault on an intentional tort
claim has somehow waived his right to later maintain that
position as to the entry of the judgment." Id.
We likewise find that the plaintiff did not waive the
intentional tort exception in this case. Accordingly, we
reverse and remand on this issue with ...