R.J. REYNOLDS TOBACCO COMPANY, Appellant,
LESLIE SCHLEFSTEIN, as Personal Representative of the Estate of DAWN SCHLEFSTEIN, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No.
Michael Edson of King & Spalding LLP, Washington, DC, and
William L. Durham II of King & Spalding LLP, Atlanta, GA,
Alvarez and Michael Alvarez of The Alvarez Law Firm, Coral
Gables, Celene H. Humphries and Thomas J. Seider of Brannock
& Humphries, Tampa, and Gary M. Paige of Gordon &
Partners, Davie, for appellee.
R.J. Reynolds Tobacco Company appeals from an adverse verdict
in an Engle-progeny survival action filed by
Plaintiff Leslie Schlefstein on behalf of his late wife
("Mrs. Schlefstein"). Reynolds claims, among other
things, that the trial court erred in limiting its ability to
defend against the decedent's class membership after it
withdrew its affirmative defense of comparative negligence.
We agree that this was error and reverse for new trial. Our
reversal renders moot the other issues raised on appeal.
initial complaint admitted that "[e]ach Plaintiff smoker
bears some measure of fault," and requested
apportionment of fault and damages. Plaintiff later withdrew
this admission when he filed his fourth amended complaint. As
a result, Plaintiff's negligence claim was amended to
allege that the "Engle Phase I findings
conclusively established that all of the Defendants were
negligent," and that "[a]s a proximate result of
the Defendants' negligence, Plaintiff's Decedent,
sustained injuries[.]" In response, Reynolds withdrew
its affirmative defense of comparative fault.
trial commenced, Plaintiff's counsel showed Reynolds'
attorneys several slides intended for opening statement.
Reynolds objected to one slide that read: "Class
Membership is Not About:" the "Fault of either
party," arguing this was an inaccurate statement of law:
DEFENSE COUNSEL: I'm just letting Your Honor understand
my objection that this is a little bit more substantive.
There is -- it is the plaintiff's burden of
proof to show that addiction was a legal cause of the
disease, which means that these other things that they are
talking about, her decision to smoke, her desire to smoke was
the sole legal cause, then the plaintiff hasn't proven
their case on class membership. So this is an inaccurate
statement of law. If they want to add something in there that
there can be other causes, that would be one thing. But what
they are saying is it has nothing to do with it at
all, and that's an inaccurate statement of law.
response, Plaintiff's counsel furnished the trial court
with appellate briefs filed in other cases to show that this
argument had been previously presented to and rejected by
this court. The trial court overruled Reynolds'
Reynolds' opening statement, counsel claimed that the
evidence would show Mrs. Schlefstein did not make any attempt
to quit smoking until her family members urged her to do so,
prompting her to quit smoking to placate them as opposed to
being of her own initiative. Plaintiff's counsel objected
to this, saying this statement was inconsistent with
Reynolds' withdrawal of its comparative fault affirmative
defense. Plaintiff's counsel explained that the defense
could not argue the decedent's reasons for stopping or
restarting smoking because such matters related to what they
described as "conduct evidence" involving the
waived affirmative defense.
took the position that the case was about what caused Mrs.
Schlefstein's illness, arguing it was not caused by
addiction but because she enjoyed smoking. In other words,
Reynolds contended Mrs. Schlefstein smoked cigarettes and
continued to smoke for reasons other than addiction. As to
the withdrawn comparative negligence defense, Reynolds'
counsel explained that this withdrawal merely removed the
allocation of fault question from the verdict form. Thus, the
withdrawal of the defense had no effect on Plaintiff's
burden of proving class membership, nor did it limit
Reynolds' ability to argue Mrs. Schlefstein was the sole
legal cause of her illness. After further discussion, it was
agreed that Reynolds' counsel would clarify its position
in opening statement consistent with its withdrawal of
counsel continued and told the jury, "We are not blaming
her. We are not criticizing her for her choices. They were
her choices. We are not going to ask you to assign blame to
her or answer a question saying that she contributed to her
injuries." When Reynolds brought up the fact that Mrs.
Schlefstein chose to hide her smoking from her parents when
she was a teenager, the trial court sustained Plaintiff's
objection and struck that portion of the opening statement
from the record. This led to yet another sidebar conference,
where Reynolds' counsel explained that Mrs. Schlefstein
hid her smoking because she knew it was bad for her- relating
to the reasonableness of her reliance pertaining to the
alleged fraud and conspiracy claims as well as the addiction
element of class membership.
Plaintiff's objections to any "blame" and
"choice" references would continue to recur
throughout trial, Reynolds filed a memorandum of law
explaining the effect of its withdrawn affirmative defense.
First, that the withdrawal of its comparative fault defense
did not limit its ability to argue Mrs. Schlefstein's
"choice" to smoke-the equivalent of "failure
to quit"-was the sole legal cause of her injuries.
Second, that the withdrawal did not limit Reynolds'
ability to defend against class membership because
comparative fault only applies if the jury determined Mrs.
Schlefstein was a member of the Engle class. As
such, available information about her smoking history was
pertinent to the class membership discussion.
response, Plaintiff argued Reynolds was not permitted to
discuss "choice" because class membership only
requires that the smoker was addicted, and that the addiction
caused the disease. See Lorillard Tobacco Co. v.
Mrozek, 106 So.3d 479, 481 (Fla. 1st DCA 2012).
Plaintiff's counsel continued:
They are telling the jury it's a matter of: Was it
addiction that caused the person to smoke long enough, that
it's often enough and enough cigarettes to get sick,
or was it choice? That is not the question.
Choice is in play, whether it's an addictive
choice or the choice driven by something else
specific. Choice is not a determinative. It is not a
part of the definition at all. There's no support in
Douglas,  there's no support in Engle,
there's no support anywhere for taking out that word
"addiction" and saying, well, if it's
choice, then it must ...