IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT, STATE OF FLORIDA

Transcription

1 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT, STATE OF FLORIDA R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, RECEIVED, 10/11/2017 7:31 PM, Clerk, Fourth District Court of Appeal v. Case No.: 4D L.T. No.: 08-CV (19) ALAN KONZELMAN, as personal representative of the estate of ELEANOR KONZELMAN, Appellee/Cross-Appellant. ON APPEAL FROM THE CIRCUIT COURT, SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA ANSWER/CROSS-INITIAL BRIEF OF ALAN KONZELMAN Eric S. Rosen Kelley Uustal, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, Florida John S. Mills Courtney Brewer (secondary) The Mills Firm, P.A. 325 North Calhoun Street Tallahassee, Florida Attorneys for Appellee/Cross-Appellant

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF ARGUMENT...10 ARGUMENT ON MAIN APPEAL...14 I. The 1999 Amendments to Section Do Not Prohibit Plaintiff From Recovering Punitive Damages A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date...14 B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event II. The Trial Court Reasonably Upheld the Jury s Award of Non- Economic Damages A. The Award Was Not Excessive B. Evidence of the Number of Deaths Caused by Smoking Had No Relevance to or Impact on the Non-Economic Damage Award III. Reynolds Only Seeks to Preserve Its Undeveloped Constitutional Claims ARGUMENT ON CROSS-APPEAL...47 IV. The Trial Court Erred in Reducing Compensatory Damages by Comparative Fault Because Plaintiff Prevailed on His Intentional Tort Claims CONCLUSION...49 CERTIFICATE OF SERVICE...50 i

3 CERTIFICATE OF COMPLIANCE...51 ii

4 TABLE OF CITATIONS CASES Abram v. State, Dep t of Health, Bd. of Med., 13 So. 3d 85 (Fla. 4th DCA 2009) Aills v. Boemi, 41 So. 3d 1022 (Fla. 2d DCA 2010)... 38, 42 Alamo Rent-a-Car, Inc. v. Clay, 586 So. 2d 394 (Fla. 3d DCA 1991) Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994)... 16, 17, 23 Atlas Props., Inc. v. Didich, 226 So. 2d 684 (Fla. 1969) Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999) Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977) Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662 (Fla. 1955) Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)... 17, 20, 26 Cardona v. Gutierrez, 562 So. 2d 766 (Fla. 4th DCA 1990) Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000) Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla. 1988) iii

5 Citrus Cty. v. McQuillin, 840 So. 2d 343 (Fla. 5th DCA 2003) City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961) Conner v. Cone, 235 So. 2d 492 (Fla. 1970) Coolen v. State, 696 So. 2d 738 (Fla. 1997) Dyes v. Spick, 606 So. 2d 700 (Fla. 1st DCA 1992) Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006)... 1 Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014)... 31, 32 Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209 (Fla. 4th DCA 2017) Fla. Dep t of Agric. & Cons. Servs. v. Mendez, 98 So. 3d 604 (Fla. 4th DCA 2012) Fulton Cty. Adm r v. Sullivan, 753 So. 2d 549 (Fla. 1999) Glaze v. Worley, 157 So. 3d 552 (Fla. 1st DCA 2015) Gonzalez v. Dep t of Health, 124 So. 3d 449 (Fla. 1st DCA 2013) Gov t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla. 1995) iv

6 Hall v. U.S. Bank Nat l Ass n, 171 So. 3d 830 (Fla. 4th DCA 2015) Hawk v. Seaboard Sys. R.R., Inc., 547 So. 2d 669 (Fla. 2d DCA 1989) In re Holder, 945 So. 2d 1130 (Fla. 2006) Int l Union of Operating Eng rs, Local No. 675 v. Lassitter, 295 So. 2d 634 (Fla. 4th DCA 1974) Jones v. Alayon, 162 So. 3d 360 (Fla. 4th DCA 2015) Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254 (Fla. 5th DCA 2010) Lopez v. Cohen, 406 So. 2d 1253 (Fla. 4th DCA 1981) Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013)...passim Martin v. United Sec. Servs., Inc., 314 So. 2d 765 (Fla. 1975)... 21, 24 MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129 (Fla. 3d DCA 2000) McKibben v. Malloy, 293 So. 2d 48 (Fla. 1974) Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) Meyer v. Thompson, 861 So. 2d 1256 (Fla. 4th DCA 2003) v

7 Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994) Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) Nordt v. Wenck 653 So. 2d 450 (Fla. 3d DCA 1995) Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012)...passim Philip Morris USA Inc. v. Cohen, No. SC13-35, 2016 WL (Fla. Jan. 29, 2016)... 43, 44 Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36 (Fla. 3d DCA 2015) Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013)... 46, 47, 49 Philip Morris USA Inc. v. McKeever, 207 So. 3d 907 (Fla. 4th DCA 2017) Philip Morris USA v. Williams, 549 U.S. 346 (2007)... 30, 31, 32, 34 R.J. Reynolds Tobacco Co. v. Allen, No. 1D , 2017 WL (Fla. 1st DCA Feb. 24, 2017)... 17, 18 R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013)...passim R.J. Reynolds Tobacco Co. v. Buonomo, Nos. SC14-81 & SC14-83, 2016 WL (Fla. Jan. 26, 2016) R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016) vi

8 R.J. Reynolds Tobacco Co. v. Evers, No. 2D , 2017 WL (Fla. 2d DCA Sept. 15, 2017) R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015)...passim R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012)... 37, 38, 40 R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012)... 42, 43 Rudy s Glass Constr. Co. v. Robins, 427 So. 2d 1051 (Fla. 3d DCA 1983) Shere v. State, 742 So. 2d 215 (Fla. 1999) Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) St. John v. Coisman, 799 So. 2d 1110 (Fla. 5th DCA 2001) St. Mary s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000) State v. Robinson, 873 So. 2d 1205 (Fla. 2004) Tobias v. Osorio, 681 So. 2d 905 (Fla. 4th DCA 1996) Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002) vii

9 Valiant Ins. Co. v. Webster, 567 So. 2d 408 (Fla. 1990)... 20, 27 Variety Children s Hosp. v. Perkins, 445 So. 2d 1010 (Fla. 1983) W.R. Grace & Co. v. Waters, 638 So. 2d 502 (Fla. 1994)... 15, 31, 33 STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES OF COURT , Fla. Stat , (2), Fla. Stat. (2010) , Fla. Stat....passim (1)(a)1, Fla. Stat (2), Fla. Stat....passim (2)(a), Fla. Stat (2)(b), Fla. Stat , 15, 30, , Fla. Stat , (4), Fla. Stat. (1995) Ch , 3, Laws of Fla Ch , Laws of Fla. (the 1999 Act ) Ch , 23, Laws of Fla Ch , 35, Laws of Fla viii

10 SECONDARY SOURCES Fla. HB 1067 (2015) Fla. SB 978 (2015) Mary Ellen Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo, Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.), 24 ix

11 STATEMENT OF THE CASE AND OF THE FACTS In this Engle progeny case, R.J. Reynolds Tobacco Company appeals a judgment entered in favor of Alan Konzelman, as personal representative of the estate of his late wife, Eleanor Elaine Konzelman ( Plaintiff ). 1 Reynolds claims the trial court erred in (I) refusing to apply the 1999 amendments to section , Florida Statutes, which it contends bar Plaintiff from recovering any punitive damages, and (II) denying a remittitur or new trial on the amount of non-economic damages, which it contends was excessive. It also asserts that it preserves some unelaborated constitutional claims regarding the use of the Engle findings. Plaintiff cross-appeals the trial court s decision to reduce compensatory damages by Elaine s comparative fault. Born in 1930, Elaine smoked for more than 40 years, quitting only after she was intubated in the hospital due to breathing troubles and diagnosed with chronic obstructive pulmonary disorder (COPD) in (T:1784, , 2519.) At the time of her diagnosis, she had developed a serious cough and been experiencing shortness of breath and wheezing for two years. (T: ) Consistent with the supreme court s direction in Engle v. Liggett Group, Inc., 945 So. 2d 1246, First names are used to refer to the Konzelmans individually. 1

12 (Fla. 2006), Elaine filed her initial complaint alleging claims for negligence, strict liability, fraudulent concealment, and conspiracy in (SR:87-98.) Elaine s COPD got progressively worse and eventually killed her in 2010 (T:2287, 2552.) Alan was substituted as personal representative for Elaine s estate and sought to amend the complaint accordingly, seeking wrongful death damages or, alternatively, survival damages from Elaine s personal injury. (R:1, 9-10.) The amended complaint was otherwise materially identical to the original complaint. (R:4-11.) Reynolds and its codefendant (who was later dismissed) opposed the amendment, contending that the wrongful death action was distinct from Elaine s personal injury action, requiring Plaintiff to now bring a separate action. (R:28-31.) The trial court granted Plaintiff s motion. (R:104.) Plaintiff thereafter sought to amend the complaint for leave to seek punitive damages. (R:564-79, ) Reynolds opposed, but did not claim that punitive damages were barred under section , Florida Statutes. (R: ) The trial court granted Plaintiff s motion for leave to add a claim for punitive damages on the intentional torts only, based on then-existing law. (R:867.) Nearly nine months later and just a month before trial started, Reynolds filed a notice arguing that section , Florida Statutes, barred Plaintiff from obtaining punitive damages because Elaine died in 2010, requiring application of the post-1999 version of the punitive damages statute. (R: ) In response, 2

13 Plaintiff adopted the response from another Engle progeny case in which this exact same argument was made and rejected. (R: ; SR: ) Plaintiff noted therein that under Reynolds s argument, a smoker who sustained injuries in the class period of the early 1990s would have the right to seek punitive damages only if tobacco s conduct had not killed him or her. (R:7868.) Such an interpretation would be contrary to the express purpose of the wrongful death statute and would deprive plaintiffs of their vested, substantive rights to punitive damages. (R:7867.) The trial court concluded that Plaintiff s punitive damages claim was not barred. (R:11, ) The trial commenced that same day, and Reynolds moved for reconsideration on the issue two and a half weeks later. (R:11, ) Plaintiff responded in opposition (R:11,263-72) and filed transcripts from the previous Engle progeny case on this issue (R:11,277-11,336). The trial court asked both sides to fully brief the issue. (R:11,608-09; T:3387.) But given that the First and Second District Courts of Appeal were considering the same question and that the trial in this case was already well under way, the trial court deferred its decision until after the trial concluded. (R:11,608-09; T:3387.) The jury heard argument and evidence about the impact of Elaine s sickness and death on Alan. Alan and Elaine had been married for 29 years at the time of her death. They met in Hawaii in 1981, a chance encounter at the jewelry shop 3

14 where Elaine worked. (T: ) They hit it off, travelling together and staying in contact until they were married at the end of 1982, when Elaine moved to Alan s home in Florida. (T: ) Alan was in Hawaii when he met Elaine because he worked as an engineer on merchant ships, a career that spanned some 61 years. (T: ) The job required lots of travel throughout their marriage. (T:2269.) A tour was about days, so Alan would be gone for that block of time and then home for a similar period; he estimated he was gone from home about half the time. (T:2280, 2339.) When he was not out to sea, he was off work completely, allowing the couple to spend all his down time together. (T:2269, 2549.) The couple enjoyed each other s company very much, were affectionate, and spent a lot of time together travelling or sailing their boat throughout their nearly-three decade marriage. (T:1967.) Alan, a man of few words, told the jury they had a lot of fun together. (T:2280, 2557.) One of Elaine s daughters, 2 Sandra Mattson, told the jury that the couple loved each other very much and that Alan cared deeply for Elaine. (T:2549.) Elaine was very active and her health was excellent until and even after her COPD diagnosis; the couple was even able to 2 Both Alan and Elaine had been previously married. (T:1917, 2271.) The father of Elaine s children was her first husband. (T: ) 4

15 travel to Venice and the Galapagos Islands together after (T:2281, , 2536.) Starting around the early 2000s, though, their active life came to a halt when Elaine started to lose energy. (T:2287.) She had to use oxygen to help her breathe by (T:3173.) Eventually, she was confined to a wheelchair because she had trouble standing. (T:2287.) Alan had to help her get in and out of bed. (T:2287.) Alan was still working to support the couple throughout this period, so Sandra would come to Florida to help take care of her mother when Alan had to be away for work. (T:2551.) Sandra noted that [Alan] was conflicted because he had to go to work, but he wanted to stay with [Elaine], too. (T:2557.) When Alan and Sandra were both working, Elaine would stay in assisted living facilities. (T:2289, 2341, 2551.) This reality made Alan feel helpless, but he monitored the facilities carefully; the testimony at trial was supported by various medical records and directives reflecting his presence and continuous involvement in her care. (T:2289, ; e.g., Ex. R3 3 :1339, 1342, 2654, 2820, 3157, 3502, 4148, 4322, 5000, 5157, 5248, ) Indeed, when Alan was not working, he was with Elaine 24 hours a day. (T:2554.) 3 Citations to Ex. R3 refers to volume 3 of the trial exhibits transmitted to this Court on September 18, The page numbers refer to the PDF pagination. 5

16 In 2008, Elaine spent some time in California at Sandra s insistence. (T: ) But Elaine wanted to return home, so Alan and Sandra rented an RV to transport her back to Florida. (T: ) Her health continued to deteriorate until she could not even get out of bed. (T: ) She was on oxygen 24 hours a day and had to stay in assisted living facilities and eventually hospice even when Alan was not out to sea. (T:2290.) He visited her daily and would take her to dinner when she was capable. (T:2290, , ) The couple was still really close in the way that they spoke with each other and loved each other. (T:2554.) Sandra explained that the illness took a toll on Alan s health and it became like too much, too much to handle almost. (T:2554.) Alan required heart surgery in late 2009-early 2010, so Elaine moved back to California near her daughter, staying in an assisted living facility there. (T:2291, 2552.) As soon as his health permitted him to, Alan joined them in California and was at Elaine s bedside on the day she passed away in March (T:2291, 2556.) Elaine had requested to have her body cremated and that her ashes be returned to Alan and scattered out to sea with Alan s. (Ex. R3:3289.) Alan testified that he still loves and misses Elaine. (T:2292.) Sandra thought that the loss had devastated Alan, finding just no words to even describe what the man s gone through with his wife. (T:2557.) His health and finances declined 6

17 as he struggled to care for Elaine and dealt with the conflicting pressures of needing to work to support his wife and wanting to stay by her side. (T:2557.) The jurors heard about how Alan had reconnected (Init. Br. 7-8) and taken trips with a woman Alan met before he and Elaine were married. (T:2351.) They also learned that Alan did not reach out to this woman until a year and a half after Elaine s death and that the reconnection fizzled, as the two had not spoken since (T:2356, 3315.) Before closing argument, the jury was instructed that non-economic damages should compensate Alan for the loss of Elaine as well as his mental pain and suffering due to Elaine s injury and death, but should not be used to punish Reynolds. (T: ) In closing argument on the appropriate amount of noneconomic damages, Plaintiff s counsel asked for $5 million for Alan s substantial loss, but told the jury: This is a suggestion, you can go higher, you can go lower, it s just a suggestion. (T: ) Plaintiff also argued in closing that if the jury attributed any fault to Elaine, it should be 10% to Reynolds s 90%. (T: ) In its closing, Reynolds suggested that the $5 million request was suspect because it seemed like Alan was not around very much and even implied that Alan had lied to Elaine about his work in 2008 and 2009 or had been involved with someone else prior to Elaine s death. (T: ) Reynolds did not suggest any amount it would deem appropriate for Alan s damages. 7

18 After a nearly three-week Phase I trial, the jury concluded Elaine was an Engle class member, that Plaintiff s claims were not barred by the statute of limitations, and that Reynolds was liable for its intentional misconduct. (R:11, ) It awarded Plaintiff s requested $295,000 in medical expenses. (R:11,552.) It awarded Plaintiff more than requested ($8.5 million) in non-economic compensatory damages, but also concluded Elaine was more at fault (15%) than counsel had suggested. (R:11, ) Finally, the jury determined Plaintiff was entitled to punitive damages. (R:11,552.) After Phase II, the jury awarded Plaintiff $20 million in punitive damages. (T:3835.) Following the jury s verdict, Reynolds filed a brief and reply in support of the application of section (2), asserting that Plaintiff s claims did not accrue until Elaine died in (R:11,610-29, 11, ) Plaintiff filed a brief in opposition to the statute s application, raising the same arguments he makes herein. (R:11, ) Following a hearing (SR:1-86), the trial court agreed with Plaintiff and denied Reynolds s motion to bar punitive damages in this case, citing this Court s opinion in R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013).(R:11,992.) Similarly, Reynolds s motion for a directed verdict on the punitive damages claim was denied. (R:11,206-18, 11,650, 11,992.) Reynolds also sought a new trial on non-economic damages or a substantial remittitur, asserting these damages were grossly excessive. 8

19 (R:11, ) It did not assert that the verdict was infected by the evidence regarding the number of deaths caused by smoking, although it did raise that as a separate evidentiary issue. (R:11,723-24, 11, ) Plaintiff responded, documenting the evidence that showed Alan and Elaine had a special, close, and loving relationship that was ended by Elaine s death following years of Alan having to endure watching his wife suffer and ultimately die from a horrible and debilitating disease. (R:11,896-11,906.) Although the trial court held a hearing and gave Reynolds a chance to argue all points in its post-trial motions, the only issue Reynolds addressed was the application of the punitive damages statute. (SR:3-78.) Reynolds rest[ed] on the papers and only briefly touched on its remittitur argument, asserting: And then the remittitur argument that we have here with $8.5 million, which is, of course, a lot more than what plaintiff suggested. Of course, he said they can go higher, they can go lower, but point is I think it s sufficiently briefed. If the Court has questions about it, I m happy to present argument on those issues as well, your honor. (SR:79-80.) The trial court denied Reynolds s motion. (R:11,992.) Though cognizant that the trial court was bound to follow this Court s decision in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), Plaintiff asked that the jury be told that the trial court would not reduce the compensatory damages by the jury s comparative fault findings if the jury found for Plaintiff on the intentional tort claims. (R:11,169; T:2754.) The trial court noted 9

20 Plaintiff s objection but denied his request. (T:2754.) The trial court reduced the judgment accordingly, awarding Plaintiff $7,475,750 in compensatory damages (which included the jury s economic damages award). (R:11,987.) SUMMARY OF ARGUMENT I. The trial court did not err in applying the pre-1999 punitive damages statute, which was the statute in existence when Plaintiff s underlying claims arose. Those underlying claims are for the identical negligence, strict liability, fraud, and conspiracy that caused Elaine s COPD in 1995, leading to her personal injury action and claim for punitive damages. That same punishment is no less warranted because Reynolds s misconduct was so bad that Elaine died in Reynolds point to no principled basis in the law for concluding otherwise. Applying the 1995 statute is consistent with this Court s previous reversal of a trial court decision to apply that applied the 1999 Act in an Engle progeny case because the smoker died after Contrary to Reynolds s contention that this decision was reversed merely because of its concession, this Court does not reverse when no error occurred simply because the other side concedes. Moreover, two other district courts have applied the pre-1999 statute in similar circumstances. Not only is all of the case law in Plaintiff s favor, this result is most consistent with the Legislature s stated policy and motivations. The Wrongful Death Act itself seeks to ensure a wrongdoer does not evade liability or 10

21 punishment by causing death rather than only injury. The death does not alter the underlying lawsuit that is the basis for punitive damages, but instead only creates a substitution process to ensure that the causes of action are not also lost. Similarly, amendments to the punitive damages statute may not be applied to already-existing actions absent clearly expressed legislative intent that does not exist here. Even if this Court disagrees, the 1999 Act still should not be applied because it is unconstitutional. Indeed, the 1999 Act fails rational basis review and violates both equal protection and substantive due process. Of particular note is the final provision of section (2)(b), which provides that even after a trial court has concluded prior damages were insufficient to punish the misconduct at issue (and here, that misconduct is among the worst of the worst and requires further punishment), a plaintiff s award of punitive damages still must be reduced by prior awards. This provision lacks a rational basis because it can cut off, as is the case here, a defendant s punishment before it ever comes close to an adequate accounting. Additionally, the very basis for the statute has been rendered a nullity, as all Engle juries are instructed that they may only award punitive damages for the harm caused to the particular plaintiff in a case, consistent with United States Supreme Court law. There is no longer any danger that a defendant will be punished twice for causing harm to the same person, rendering the 1999 Act unnecessary. 11

22 Finally, the 1999 Act further violates equal protection because it distinguishes between plaintiffs based solely on the timing of their lawsuits and the time they take to wind through the litigation process. Those plaintiffs who, for example, are injured first, try their cases in a county with no docket backlogs before a fast-acting trial judge, and never have to contend with a mistrial caused by factors like juror illness or defense misconduct will be able to obtain punitive damages at the expense of later plaintiffs based solely on arbitrary factors completely out of a plaintiff s control. II. The trial court did not abuse its discretion in refusing to alter the jury s verdict regarding Plaintiff s non-economic damages. After 29 years of marriage, the proper measure of Alan s pain in losing his wife to an excruciating and devastating disease is a matter entrusted to the jury. The jury heard evidence as to how Alan and Elaine s active lifestyle was brought to a halt in their golden years. It also heard how Alan struggled with the conflict he felt at needing to work to financially support Elaine while wanting to remain by her side to provide emotional and physical support. That pressure took a toll on Alan s own health; indeed, he had to have heart surgery just a few months before Elaine passed away. The trial judge reasonably refused to disturb the jury s verdict. Alan s damages are much less than other amounts that this and other district courts have affirmed in Engle surviving spouse cases. That the jury awarded more than 12

23 Plaintiff s counsel requested is of no moment, given that counsel also stated the jury could go higher or lower and that Reynolds refused to suggest any amount. Given that the evidence amply supported the jury s award, Reynolds has no basis to claim that several mentions of the number of deaths caused by smoking was the actual reason for the jury s non-economic award. It states volumes of other evidence improperly inflated the award, but fails to identify it or any ruling by the trial court it seeks to overturn. Moreover, the jury was instructed not to award non-economic damages to punish Reynolds or to do anything other than compensate Alan for his suffering. Finally, Reynolds specifically ties its argument to its contention that punitive damages should have been barred, but evidence regarding the number of deaths caused by smoking would still have been admissible as it is also relevant to comparative fault and reliance issues that were up for consideration no matter how issue one is resolved. III. IV. Reynolds concedes its due process claim is foreclosed. Although this Court concluded to the contrary in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), on cross-appeal Plaintiff preserves his argument that the trial court should not have reduced his compensatory damages by the jury s comparative fault finding. 13

24 ARGUMENT ON MAIN APPEAL I. THE 1999 AMENDMENTS TO SECTION DO NOT PROHIBIT PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES. Standard of Review. Plaintiff agrees that this Court considers the interpretation and constitutionality of this statute de novo. E.g., Abram v. State, Dep t of Health, Bd. of Med., 13 So. 3d 85, 88 (Fla. 4th DCA 2009). A. The 1999 Amendments Do Not Apply to Claims That Accrued Before the Effective Date, Even When Those Claims Are Converted to Wrongful Death Claims After the Effective Date. There is no dispute that Elaine s causes of action for negligence, strict liability, fraudulent concealment, and conspiracy all accrued well before October 1, 1999, or that she died after that date. The dispute is whether the punitive damages statutes that apply to this case are the pre-1999 or post-1999 versions. 4 In 1999, the Legislature enacted Chapter , Laws of Florida (the 1999 Act ), and section 23 of that law imposed more restrictive caps on the potential amount of punitive damages and restricted the ability of plaintiffs to recover punitive damages against a defendant who has paid punitive damages for the same course of tortious conduct in a prior case. Specifically, the post-1999 version modifies the common law rule that a prior award of punitive damages against a defendant does not preclude subsequent 4 Although October 1, 1999, is the key date, for ease of reference, this brief will use the terms pre-1999 and post-1999 when referring to the two versions of section

25 awards for injuries arising from the same conduct. W.R. Grace & Co. v. Waters, 638 So. 2d 502, (Fla. 1994). The pre-1999 version did not address this issue at all, but under the post-1999 version, if the defendant makes a showing before trial that it has previously paid punitive damages for the same course of conduct, then the plaintiff may not recover punitive damages unless the court determines by clear and convincing evidence that the prior award was insufficient to punish that defendant s behavior (2)(a), (b), Fla. Stat. (2010). Even then, it requires any subsequent award be reduced by the amount of prior awards the defendant has paid. Id (2)(b). Reynolds suggests that the post-1999 version of the statute should apply because Elaine died in 2010, seeking to prevent her from recovering punitive damages because of the other punitive judgments it has already paid to Engle plaintiffs. But binding precedent requires application of the pre-1999 version, because this Court reversed the only trial court to have followed Reynolds s logic. R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013), quashed on other grounds, Nos. SC14-81 & SC14-83, 2016 WL (Fla. Jan. 26, 2016). The trial court in Buonomo reduced the jury s award of punitive damages to three times the compensatory damage award, relying on another amendment to the punitive damages statute in the 1999 Act. Id. at Having earlier noted that the smoker began suffering from COPD in 1995 and died in

26 after the lawsuit had been filed, id. at 1050, this Court held that the trial court erred in relying on section (1)(a)1 because that provision did not exist until the 1999 amendments and [i]t is the 1995 version of the statute that governs the instant case. Id. at Reynolds seeks to evade the holding in Buonomo because this Court noted that Reynolds did not dispute that the 1995 version governed. That it now disputes what it previously conceded is of no moment. A confession of error is not binding upon an appellate court, and it is the practice of Florida courts not to accept erroneous concessions. Glaze v. Worley, 157 So. 3d 552, 557 (Fla. 1st DCA 2015) (Makar, J., concurring) (quoting Gonzalez v. Dep t of Health, 124 So. 3d 449, 450 (Fla. 1st DCA 2013)). This Court makes a point to only accept a proper confession of error. E.g., Hall v. U.S. Bank Nat l Ass n, 171 So. 3d 830, 30 (Fla. 4th DCA 2015). And in Buonomo, this Court did not simply rely on Reynolds s failure to dispute that the 1995 version applied to reverse the trial court s decision to the contrary. Instead, it followed that notation with legal citations and parentheticals demonstrating it had made a determination that the claim for punitive damages arose before the 1999 Act even though the smoker died after its enactment. Buonomo, 138 So. 3d at 1052 (citing Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994), and St. John v. Coisman, 799 So. 2d 1110,

27 (Fla. 5th DCA 2001)). Both of the cases cited discuss applying the version of the punitive damages statute in effect when the cause of action arose, so this Court did not blindly adopt Reynolds s position. Mancusi, 632 So. 2d at 1358; St. John, 799 So. 2d at Since Buonomo, this same conclusion has been adopted by two other district courts. In R.J. Reynolds Tobacco Co. v. Allen, No. 1D , 2017 WL , at *4 (Fla. 1st DCA Feb. 24, 2017), Reynolds argued that provisions requiring stricter caps and a finding of conscious disregard for the safety of others in the 1999 Act should have been applied. As here, Plaintiff s suit had been filed as a personal injury case due to Mrs. Allen s COPD, but she too died after it was filed and the complaint had been amended to substitute her personal representative and to seek wrongful death damages. Id. at *5. The First District noted that upon her death, Mrs. Allen s case did not self-destruct, but instead abated until a personal representative was appointed and the existing suit was amended to add the wrongful death claim. Id. (internal quotation mark and citation omitted). Thus, her personal representative, like Alan, was not required to file a new suit, but instead was allowed to proceed in the same suit initiated by Mrs. Allen. Id. (citing Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)). Because Mrs. Allen s lawsuit was an Engle progeny suit like this one, she was only permitted to take advantage of the findings in Engle if her disease 17

28 manifested by November 21, Id. at *4. The court concluded: Just as the wrongful death action was allowed to relate back to the date of the Engle class for statute of limitations purposes, the applicable statutory law also relates back to the Engle class. Id. at *5. The First District also noted that application of the 1999 Act would impair Mrs. Allen s substantive right to seek punitive damages. Id. Since Reynolds filed its initial brief in this case, its motion for rehearing en banc has been granted in Allen. R.J. Reynolds Tobacco Co. v. Allen, No. 1D , Order Granting Rehearing En Banc (June 15, 2007) (order available at online docket). But the panel decision was not vacated by the order granting rehearing. Id. Moreover, although the order did not limit en banc review to any particular issue, the dissenting judge on the panel opinion wrote only to express his disagreement regarding a juror misconduct issue raised by Reynolds and did not address punitive damages at all. Allen, 2017 WL , at *6-*10 (Osterhaus, J., dissenting). The Second District recently followed this Court and the First District s leads, concluding that the pre-1999 version applied despite the smoker s death in R.J. Reynolds Tobacco Co. v. Evers, No. 2D , 2017 WL (Fla. 2d DCA Sept. 15, 2017). The Second District summarized the underlying reasoning: While Evers did not file the wrongful death action until 2007 when Loyd died, her right to do so was based on Loyd s status as an Engle class 18

29 member, i.e., Loyd s manifestation of a tobacco-related disease or medical condition prior to November 21, Id. at *3. To be sure, this case originated as Elaine s claim for the personal injuries she suffered after smoking Reynolds s cigarettes. Had she waited to file those claims until 2007, Reynolds no doubt would have argued her claims were untimely because she was diagnosed with COPD back in The only reason Elaine s case is timely and not subject to statute of limitations argument is because she is a member of the Engle class and therefore subject to the tolling provided by that litigation. There is no doubt the pre-1999 statute applied to that lawsuit. Further supporting application of the pre-1999 statute, this Court has rejected an identical argument that Reynolds made with regard to an amendment to another statute limiting a plaintiff s damages. As this Court is well-aware, Reynolds and Engle progeny plaintiffs have long disputed whether plaintiffs compensatory damages may be reduced by the jury s comparative fault findings under section , Florida Statutes. (It is an issue preserved on cross-appeal here.) This Court s seminal case on the issue noted that the parties disputed which version of the comparative fault statute applied and the Court noted that the general rule was that the version in effect at the time the cause of action accrued applies. R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487, 492 n.3 (Fla. 4th DCA 2015) (emphasis added). In addressing the wrongful death claim at issue, the 19

30 Court then concluded Plaintiff s cause of action accrued in 1994, when Mr. Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute governs. Id. Mr. Schoeff did not die until (R:11,963.) The result in all these cases is consistent with the very policy behind the Wrongful Death Act itself to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer , Fla. Stat.; see also Capone, 116 So. 3d at 376 (stating that purpose is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death ). The Act was created to correct the common law paradox permitting a tortfeasor to escape liability in situations where the damages were so severe as to result in death. Variety Children s Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983). Again, the causes of action supporting the demand for punitive damages in this case are the actions for negligence, strict liability, fraud, and conspiracy, all of which accrued well before Elaine s individual personal injury suit was filed, let alone when wrongful death damages were sought. See Valiant Ins. Co. v. Webster, 567 So. 2d 408, 411 (Fla. 1990) ( While the Wrongful Death Act creates independent claims for the survivors, these claims are also derivative in the sense that they are dependent upon a wrong committed upon another person. ), receded from on other grounds in Gov t Emps. Ins. Co. v. Douglas, 654 So. 2d 118 (Fla. 1995). Reynolds s attempt to use the Wrongful Death Act to evade liability for its 20

31 misconduct because it resulted in Mrs. Konzelman s death could not be more contrary to long-standing legislatively established core public policies in Florida. Indeed, the Florida Supreme Court has rejected the argument that the Wrongful Death Act was unconstitutional for eliminating the plaintiff s right to recover punitive damages expressly because it found that the act did not abolish that part of the personal injury action. Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 767, (Fla. 1975). The supreme court made clear that it would be difficult for us to accept the proposition that the legislature intended a tortfeasor to be punished for his malicious and reckless acts when they maim another but not for those same acts when they kill the victim. Id. at 771; see also Atlas Props., Inc. v. Didich, 226 So. 2d 684, 689 (Fla. 1969) ( any interpretation other than allowing recovery for punitive damages after the death of the injured party would be extremely difficult to justify ). Yet that is exactly the result Reynolds seeks here. Downplaying its concession and losses on this issue before this Court, Reynolds instead relies on the reasoning from an inapt decision, Nationwide Mutual Fire Insurance Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994). There the Court held that the 1990 amendments to the Wrongful Death Act, which expanded the survivors who can recover damages, applied where the decedent died after its effective date. Id. at In rejecting the argument that a 21

32 wrongful death action accrues on the date of the accident for purposes of determining the applicable version of the wrongful death statutes, the Court relied on two factors that easily distinguish those amendments from the amendments at issue here. First, the Legislature had provided that the amendment to the Wrongful Death Act shall apply to causes of action accruing on or after October 1, Ch , 3, Laws of Fla. The post-1999 version of section , however, uses different language, tying application not to when the cause of action accrues, but when it arises. While those two terms are undoubtedly interchangeable in most contexts, there is reason to give them slightly different meanings here. It makes sense for amendments to the wrongful death act to apply based on the date of death because the act governs the remedies available upon death. But it makes no sense for amendments to the punitive damages statutes, which the Legislature intends to apply prospectively only, to eliminate or reduce the decedent s right to seek punitive damages (and her heirs right to share in that) based on when the decedent dies. And this Court should avoid constructions that would lead to absurd results. McKibben v. Malloy, 293 So. 2d 48, 51 (Fla. 1974). Instead, amendments to any statutes governing tort actions generally should be applied based on when the underlying cause of action accrued, as this Court held in Schoeff. 22

33 Second, this Court recognized that the inquiry did not end with what the Legislature said because it then went on to examine whether the changes in available damages could be applied retrospectively. It found that they could because the wrongful death statute is remedial. Nationwide, 645 So. 2d at 1058 (citing , Fla. Stat.); see also City of Lakeland v. Catinella, 129 So. 2d 133, (Fla. 1961) (remedial statutes do not fall within the general presumption against retrospective application). The 1999 Act, on the other hand, has no expression of legislative intent that its restrictions on the ability to recover punitive damages are remedial and certainly nothing suggesting an intent to destroy existing rights. The Florida Supreme Court has held that changes to section that would reduce the availability of punitive damages may not be applied retrospectively absent clearly explained legislative intent in the very authority on which this Court relied in Buonomo. Mancusi, 632 So. 2d An amendment to a punitive damages statute is a change in substantive law that must be presumed to operate prospectively rather than retrospectively unless the Legislature clearly expresses its intent that the statute is to operate retrospectively. This is especially true when retrospective operation of a law would impair or destroy existing rights. Id. at 1358 (citations omitted). Further evidence that the Legislature intended the 1999 Act to operate only prospectively is found in the failed attempt in 2015 by members of both houses to 23

34 make it retroactive. Fla. HB 1067 (2015); Fla. SB 978 (2015). Those bills sought to apply the provisions of section to all civil actions in which judgment has not been entered, regardless of when the cause of action arose. Id. Both bills targeted Engle plaintiffs smokers and their families and the tobacco companies hired more than 40 lobbyists to get it passed, not including another 50-plus lobbyists who are also working on litigation reform as part of the state and federal tort reform efforts which the tobacco industry has long supported. Mary Ellen Klas, Bill to shield tobacco industry from damages in Engle lawsuits in limbo, Tampa Bay Times (Mar. 24, 2015, 12:06 p.m.), Both bills failed. In sum, the only way to reconcile this Court s holdings in Buonomo, Schoeff, and Nationwide is to conclude that the applicability of amendments that change the remedies provided by the Wrongful Death Act is determined by the date of death, but that the applicability of statutes applying to tort actions generally, including section , is determined by the date the underlying causes of action accrued regardless of death. Those underlying claims remain the same; the only thing the wrongful death conversion does is alter how the compensatory damages are measured and who receives them. See Martin, 314 So. 2d at 767 (noting that the Wrongful Death Act provisions consolidate survival and wrongful death actions 24

35 and substitute for a decedent s pain and suffering for the survivors pain and suffering as an element of damages ). Relatedly: A claim for punitive damages focuses on ensuring the correct remedy for the underlying violation one that punishes the defendant and deters others from engaging in similar conduct. Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1230 (Fla. 2016) (emphasis added). 5 Reynolds attempts to avoid this result by contending that the only loss or damage claimed is the wrongful death of Elaine Konzelman and that her claims died with her. Neither assertion is accurate. First, the damages authorized by the Wrongful Death Act and sought in this case were loss of decedent s companionship and protection and for mental pain and suffering from the date of injury (2), Fla. Stat. (2010) (emphasis added). (See also T:3415 (instruction to jury that damages are those incurred as a result of Elaine Konzelman s injury and death ) (emphasis added).) Second, Elaine s causes of action were not eliminated or nullified upon her death; they merged together with a new wrongful death claim that substituted the right to recover her compensatory damages with the right to recover the 5 Though the supreme court cited language from the 1999 Act, e.g., Soffer, 187 So. 3d at , that has no bearing on the analysis here. This issue was neither raised nor addressed by the court. And the smoker in that case died in 1992, id. at 1222, so even under Reynolds s argument, the 1999 Act was not applicable. 25

36 compensatory damages suffered by her estate and survivors. Capone, 116 So. 3d at Reynolds keeps pointing to the term abate in the statute seemingly without any recognition of the supreme court s determination of what that term meant: Thus, the Act implemented a process of substitution; that is, where an injured plaintiff succumbs to injuries allegedly inflicted by a tortfeasor, the damages that the decedent could have recovered for pain and suffering had he or she not died are, in effect, transferred to the survivors of the decedent. Id. at 375. Stated another way, the theoretical event of abatement does not automatically terminate a lawsuit : A pending lawsuit does not simply self-destruct like the secret message on a rerun of Mission Impossible. Id. at 369 (quoting Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31, 33 (Fla. 2d DCA 2003)). To find that the pre-existing right to seek punitive damages was not merged and instead was eliminated to be replaced with a nominal right to seek punitive damages that is nullified by the 1999 Act would promote the very policies the Legislature sought to avoid in the clearest terms possible allowing a tortfeasor to escape punishment because its victim died. Another case Reynolds cites that is even less on point than Nationwide is Fulton County Administrator v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999), which mentions in passing that a wrongful death action in Florida accrues on the date of death for purposes of the two-year statute of limitations. But that decision was not 26

37 even applying Florida law. Nor did it consider applying a statutory amendment to eliminate an existing right. And, as in nearly every case Reynolds cites except for Nationwide, the decedent in Fulton County did not die following institution of a claim for personal injuries; instead the action was first commenced as a wrongful death action. What Reynolds seeks is a determination that the conversion of a personal injury lawsuit to a wrongful death lawsuit restarts the clock on the underlying claims. But Reynolds s position ignores the longstanding recognition that rights under the Wrongful Death Act are derivative of the pre-existing substantive rights held by the decedent before her death. E.g., Valiant Ins. Co. v. Webster, 567 So. 2d 408, 411 (Fla. 1990); Celotex Corp. v. Meehan, 523 So. 2d 141, 147 (Fla. 1988); Laizure v. Avante at Leesburg, Inc., 44 So. 3d 1254, 1258 (Fla. 5th DCA 2010). So, even though the Wrongful Death Act, as amended up to the time of death, controls who may sue and what compensatory damages may be recovered, the rights being sued upon are those that accrued at the time the decedent s underlying tort claims accrued. For instance, Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 116 (Fla. 2002), held that the filing of a wrongful death action did not revive a stale claim that had been barred by the statute of limitations before the decedent s death. Thus, a defendant s limitations defense is just as valid before the decedent s death as it 27

38 was after. Id.; see also Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209, 1212 (Fla. 4th DCA 2017) (concluding that death of smoker who was not an Engle class member due to limitations statute did not permit survivors to bring progeny case). But, this principle flows both ways. Just as defendants are allowed defenses that accrued before the decedent s death, so too are survivors allowed rights that accrued before the decedent s death. Reynolds still has not been punished for the harm it caused Plaintiff; this Court should adhere to its previous decision to ensure the fundamental purpose behind the Wrongful Death Act is fulfilled. B. The Limitation on Successive Awards in the 1999 Act Is Invalid in Any Event. This Court need and should not reach the question of the constitutionality of the statute if it can resolve this case by agreeing that the amendments do not apply here. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) ( Of course, we have long subscribed to a principle of judicial restraint by which we avoid considering a constitutional question when the case can be decided on nonconstitutional grounds. ). But if this Court concludes that the 1999 Act prohibits Plaintiff from seeking punitive damages because Elaine died after its enactment, Plaintiff maintains that the law strips him of his constitutionally-guaranteed rights to substantive due process and equal protection. Chiefly, even under the most lenient constitutional standard there is rational basis review the specific limitation on successive punitive damage awards in the post-1999 version of section (2) 28

39 that Reynolds seeks to enforce cannot stand. A quick review of the 1999 Act s limitations shows why. The post-1999 version does not purport to provide that a defendant can only be punished once for the same course of conduct. To the contrary, although subsection (2)(a) is a presumptive ban, subsection (2)(b) provides that notwithstanding that presumption, the trial court should permit a jury to consider an award of subsequent punitive damages if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant s behavior. There can be no question that the relatively few punitive damage awards to have been upheld against Reynolds are insufficient punishment, given that the industry s misconduct is the worst of the worst and that it injured or killed millions of people. E.g., Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, (Fla. 3d DCA 2013). Reynolds and its coconspirators took an already dangerous product and intentionally designed it to make it even more dangerous. They engaged in a decades-long, sophisticated conspiracy to fraudulently conceal that information, knowing that millions would die just so these companies could make more money. Even absent those facts, the prior awards punishment for Reynolds s course of conduct are insufficient as a matter of constitutional law because, well after the 1999 Act was passed, the United States Supreme Court held that states must 29