Products Liability Law Daily Comparative fault did not compel reduction of compensatory damages award in Engle case
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Friday, January 26, 2018

Comparative fault did not compel reduction of compensatory damages award in Engle case

By Susan Engstrom

In an Engle-progeny case brought against R.J. Reynolds Tobacco Company by the widower of a deceased smoker, a Florida federal court did not err in refusing to reduce the jury’s $600,000 compensatory damages award to the widower even though the jury had attributed 45 percent of the fault to his deceased wife, the U.S. Court of Appeals for the Eleventh Circuit determined. Pursuant to a recent Florida Supreme Court ruling, because there were intentional tort claims on which the widower had prevailed, the tobacco company was not entitled to a reduction in the award. Moreover, the widower did not waive his right to non-apportioned damages, and an incorrect jury instruction regarding the reduction of damages did not warrant reversal of the trial court’s decision (Smith v. R.J. Reynolds Tobacco Co., January 25, 2018, Carnes, J.).

In his wrongful death suit against R.J. Reynolds (RJR), the spouse of a woman who allegedly had died due to tobacco-related diseases brought on by decades of cigarette smoking asserted causes of action for intentional torts (fraudulent concealment and conspiracy to fraudulently conceal) and non-intentional torts (negligence and strict liability). The jury found for the widower on all of his claims, awarding him $600,000 in compensatory damages. However, it assessed his deceased wife with 45 percent of the fault. Although a jury instruction had stated that the trial court would reduce the widower’s recovery based on the jury’s finding of any fault on his wife’s part, the court ultimately decided not to make such a reduction because the widower had prevailed on his intentional tort claims. RJR appealed the trial court’s decision.

Comparative fault statute. Florida’s highest court very recently held that when an Engle-progeny case contains both negligence and intentional tort claims, a plaintiff’s success on an intentional tort claim defeats a defendant’s claim to reduction of a compensatory damages award based on the plaintiff’s degree of fault, unless the plaintiff waived the intentional tort exception [see Products Liability Law Daily’s December 15, 2017 analysis]. Given that holding, the Eleventh Circuit determined that the trial court in the instant case properly interpreted Florida law in ultimately deciding that, pursuant to that law, the widower’s damages could not be reduced even though the jury had found that his deceased wife was 45 percent at fault for her injuries.

Waiver. RJR argued that the widower waived his right to non-apportioned damages because he disingenuously had argued to the jury that it should take his wife’s negligence into account in awarding damages, when, in fact, his actual position was that there could be no reduction of damages if the jury found RJR liable on the intentional tort claims. However, the widower had consistently proclaimed his opposition to apportionment of fault on an intentional tort claim, and the appellate panel found it difficult to conclude that he had somehow waived his right to subsequently maintain that position as to the entry of the judgment. Moreover, RJR’s counsel had indicated at trial that it would not later argue that the widower had waived his right to oppose apportionment.

In addition, the widower had not affirmatively misled the jury as to the law in his summation, the appellate panel observed. His position was to minimize as much as possible his wife’s fault, which was to be expected, and it was not his job to explain to the jury what would happen if they found RJR liable on the intentional tort claims. Further, he actually had sought an instruction that would have informed the jury that damages would not necessarily be reduced upon the jury’s finding of negligence on the part of his wife. RJR never objected to that requested instruction, instead persuading the trial court to give an incorrect one. Finally, the verdict form clearly could have been drafted in a way that minimized or even eliminated any jury confusion, and RJR did not object to the form. Thus, the widower did not waive his right to insist that the Florida intentional tort exception be applied to prevent reduction of compensatory damages based on his wife’s degree of fault.

Jury instruction. The jury instruction at issue stated that "[a]llocating a percentage of fault to [the decedent] will … reduce the amount of [the widower’s] recovery …. [T]he Court will prepare the judgment to be entered and will reduce [the widower’s] total damages by the percentage that you insert." In light of the Florida Supreme Court’s recent ruling, this instruction clearly was incorrect, the appellate panel said. However, at the time the case was tried, Florida law was unclear as to whether a finding of liability on an intentional tort would prevent a reduction of damages for a plaintiff who was found to be contributorily negligent.

RJR argued that by deciding to give the instruction, the trial court was obligated to follow through on it, and that the instruction’s renunciation potentially prejudiced the company in terms of the damages awarded by the jury. Although there was some facial appeal to this argument, RJR’s conduct in this case undermined what otherwise might have been a problematic decision by the trial court. For reasons unclear to the appeals court, it was RJR that aggressively had sought an instruction that it knew could well impact the jury’s calculation of damages in a way that would disfavor the tobacco company should Florida law not be interpreted the way company hoped.

Moreover, even assuming that reversible error potentially could result when, post-verdict, a trial court renounces an instruction given to the jury and thereby prejudices the party at whose request the instruction was given, RJR’s suggested remedy—reducing the compensatory damages award in violation of Florida law—was not apt. At most, the company would be entitled to a new trial, but it never requested one. Thus, the trial court’s repudiation of its own charge to the jury concerning the reduction of damages did not justify a reversal of its ultimate decision to reduce those damages.

The case is No. 13-14316.

Attorneys: Kathryn E. Barnett (Law Office of Morgan & Morgan) for James L. Smith, Sr. Stephanie Ethel Parker (Jones Day) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

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