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R.J. Reynolds Tobacco Co. v. Schlefstein

Florida Court of Appeals, Fourth District

August 28, 2019

LESLIE SCHLEFSTEIN, as Personal Representative of the Estate of DAWN SCHLEFSTEIN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 2008CV022558 (03).

          Scott Michael Edson of King & Spalding LLP, Washington, DC, and William L. Durham II of King & Spalding LLP, Atlanta, GA, for appellant.

          Alex 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.

          Klingensmith, J.

         Defendant R.J. Reynolds Tobacco Company appeals from an adverse verdict in an Engle-progeny[1] 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.

         I. Background

         Plaintiff's 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.

         Before 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.

         (Emphases added).

         In 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.[2] The trial court overruled Reynolds' objection.

         During 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.

         Reynolds 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 comparative fault.

         Reynolds' 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.

         Recognizing 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.

         In 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, [3] 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 ...

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