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R.J. Reynolds Tobacco Company v. Lewis

Florida Court of Appeals, Fifth District

June 14, 2019

R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee,


          Appeal from the Circuit Court for Volusia County, Dennis Craig, Judge.

          Stephanie E. Parker, and Jason T. Burnette, of Jones Day, Atlanta, Georgia, and Troy A. Fuhrman, and Marie A. Borland, of Hill Ward Henderson, Tampa, for Appellant/ Cross-Appellee.

          Joshua R. Gale, of Wiggins Childs Pantazis Fisher Goldfarb, LLC, DeLand; Philip J. Padovano, Maegen Peek Luka, and Joseph T. Eagleton, of Brannock & Humphries, Tampa; and William H. Ogle, of Ogle Law, Daytona Beach, for Appellee/Cross-Appellant.

          EDWARDS, J.

         In this Engle[1]-progeny case, Appellant, R.J. Reynolds Tobacco Company ("Reynolds"), argues that Appellee, James Lewis, only surpassed the proposal for settlement threshold entitling him to an award of attorney's fees because the trial court improperly included costs related to four non-testifying expert witnesses retained by Lewis. We agree that was error. Reynolds also correctly asserts that the trial court allowed recovery for certain costs for which there was no evidentiary basis. Lewis cross-appeals, correctly arguing that the court erred by failing to award prejudgment interest on the costs calculated from the date each was incurred. We will explain each decision in turn.


         The decedent, Rosemary Lewis, passed away on March 12, 1998, after a battle with lung cancer. Her husband, James Lewis, was named the personal representative of the estate, and brought a wrongful death and survival action against Reynolds. After a two-week trial, the jury found in his favor. The jury awarded Lewis $750,000 in damages, which was reduced to $187,500 after the decedent's portion of comparative fault was applied. This court affirmed the final judgment in R.J. Reynolds Tobacco Co. v. Lewis, 226 So. 3d 852 (Fla. 5th DCA 2017).


         On July 14, 2014, Lewis filed a proposal for settlement ("PFS") for $199,000, which Reynolds rejected. After the final judgment was entered, Lewis sought his taxable costs and moved for attorney's fees pursuant to section 768.79(6)(b), Florida Statutes (2014). That section states that, if a defendant rejects a PFS and the plaintiff obtains a judgment at least 25% more than the amount of the proposal, the plaintiff is entitled to reasonable costs and attorney's fees as calculated by the Florida Supreme Court's guidelines. In order to cross the statutory 125% threshold entitling Lewis to attorney's fees, he would have needed at least $61,250 in taxable costs on the date that the PFS was served.[2]

         Following several hearings, the trial court determined that on the date the PFS was served, Lewis would have been entitled to $65,047.94 in costs; thus, the trial court held he was entitled to an award of attorney's fees since he surpassed the threshold by $3797.94.[3] The costs utilized by the trial court in determining entitlement to fees included the cost and expenses related to four expert witnesses who had been retained by Lewis, but who had not testified or been deposed at the time the PFS was served.

         Reynolds argues that the lower court's inclusion of the costs for the non-testifying experts was error under White v. Steak & Ale of Florida, Inc., 816 So. 2d 546');">816 So. 2d 546 (Fla. 2002). White held that "the 'judgment obtained' pursuant to section 768.79 includes the net judgment for damages and any attorneys' fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer." 816 So. 2d at 551. Based on this language, it is clear that under White, a court may only properly consider those costs that were already taxable on the date the PFS was filed.

         Thus, the question is whether the non-testifying experts' costs were taxable as of July 14, 2014. Section 768.79(6)(b) provides that an award for attorney's fees and costs must be "calculated in accordance with the guidelines promulgated by the Supreme Court." It follows then, for purposes of the "judgment obtained" within that statute, that the taxable costs must also comply with those guidelines. According to In re Amendments to Uniform Guidelines for Taxation of Costs, costs for an expert witness's deposition and/or trial testimony should be taxed, while any expense relating to a consulting but non-testifying expert should not be taxed. 915 So. 2d 612, 616–17 (Fla. 2005). Based on this language, it is clear that taxable costs for experts do not include costs for those experts who do not testify. Therefore, costs for non-testifying experts are nontaxable.

         Here, it is undisputed that the four experts in question were not deposed and did not testify.[4] Thus, costs related to them are nontaxable under the guidelines. Therefore, those costs cannot be included in the calculations for determining whether Lewis was entitled to attorney's fees, and the trial court erred by including the non-testifying experts' costs in its calculations. Accordingly, Lewis's taxable costs on the date the PFS was served totaled $44,014.60, meaning he was below the statutory ...

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