Products Liability Law Daily Wrap Up, TOP STORY—DAMAGES—Fla.Sup.Ct.: Florida high court declines reinstatement of $5M punitive damages award against R.J. Reynolds based on Florida’s pre-1999 punitive damages law, (Nov 19, 2021)

By Nicholas Kaster, J.D.

In reaching its conclusion, the state supreme court disapproved the three certified conflict cases of Allen Evers, and Konzelman reached by the Florida First, Second, and Fourth District Courts of Appeal.

A Florida punitive damages statute, as amended in 1999, applies in Engle progeny wrongful death actions in which the deceden ...

By Nicholas Kaster, J.D.

In reaching its conclusion, the state supreme court disapproved the three certified conflict cases of Allen Evers, and Konzelman reached by the Florida First, Second, and Fourth District Courts of Appeal.

A Florida punitive damages statute, as amended in 1999, applies in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments, according to the Florida Supreme Court. Accordingly, the court approved the holding of Florida’s Fifth District Court of Appeal, which reversed a $5 million punitive damages award in a 2007 wrongful death action against a tobacco manufacturer based upon Florida’s pre-1999 punitive damages statute. Florida’s high court held that the causes of action here arose when the decedent died in 2007 and, therefore, plainly were governed by the 1999 amendments (Sheffield v. R.J. Reynolds Tobacco Co., November 18, 2021, Canady, C.).

Background. The decedent, a former smoker, initially had been diagnosed with lung cancer in 1994. At that time, he underwent treatment which purportedly cured him of this first cancer. In 2003 and 2006, he was again diagnosed with lung cancer and, in 2007, he passed away. His widow, the personal representative of his estate, filed a wrongful death action seeking compensatory and punitive damages against several tobacco companies, including R.J. Reynolds Tobacco Co., based on her claim that the decedent’s death had been caused by his smoking the tobacco companies’ addictive and harmful cigarettes. The complaint alleged that the decedent was a member of the Engle class (Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006)) and asserted claims for negligence, strict liability, fraud by concealment, and conspiracy to commit fraud. Following a trial, the jury found R.J. Reynolds liable and awarded $1.8 million in compensatory damages and $5 million in punitive damages.

Challenge to punitive damages. R.J. Reynolds challenged the punitive damages award, arguing that the trial court had erred in applying the pre-1999 punitive damages statute to the action. The tobacco company contended that the punitive damages issue should have been governed by the 1999 version of the punitive damages statute, which would have given the tobacco company an opportunity to avoid punitive damages completely because the 1999 statute modified the law by potentially barring punitive damages awards against a defendant if punitive damages were previously awarded "in any action alleging harm from the same act or single course of conduct." The chapter law that amended the statute also provided that the amendments “shall be applied to all causes of action arising after the effective date of the act,” which was set as October 1, 1999.

Florida Fifth District Court of Appeal. On appeal, the Fifth District reversed the trial court’s ruling, holding that the trial court should have applied the 1999 version of the punitive damages statute [see Products Liability Law Daily’s February 12, 2019 analysis]. The Fifth District held that a wrongful death “cause of action” accrues upon death, and that because the decedent died after October 1, 1999, the cause of action here necessarily accrued or arose after that date. Consequently, the Fifth District concluded that the 1999 amendments, by their plain terms, applied.

The Fifth District certified conflict with the First District Court of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Allen, 228 So. 3d 684 (Fla. 1st DCA 2017) [see Products Liability Law Daily’s February 27, 2017 analysis], the Second District Court of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2017) [see Products Liability Law Daily’s September 18, 2017 analysis], and the Fourth District Court of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (Fla. 4th DCA 2018), each of which applied the pre-amended version of the statute in similar wrongful death actions. Allen Evers, and Konzelman all effectively held that Engle progeny cases were “different” and that the wrongful death actions related back to the Engle class action, which began in 1994.

The estate argued that when a personal injury action (or potential one) becomes a wrongful death action, the “causes of action” remain the same-i.e., that the causes of action here are the decedent’s and that they arose in 1994 when he was diagnosed with lung cancer.

Application of 1999 amendments. The case presented a question concerning the application of a statutory provision enacted to impose certain limitations on the award of punitive damages. In 1999, as part of a broader tort reform act, the Florida legislature amended section 768.73 of the Florida Statutes to, among other things, presumptively preclude an award of punitive damages against a defendant in a civil action if “punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.” The legislature made the amendments applicable “to all causes of action arising after” October 1, 1999.

The question presented was whether the 1999 amendments to section 768.73 apply to Engle progeny wrongful death actions in which the decedent died after October 1, 1999. The Florida Supreme Court said that the statute is abundantly clear in its scope; it applies to all-not some-causes of action that arise after October 1, 1999. The only question, then, is when the “causes of action” in this case arose.

The estate argued that, in 1994, the decedent had fully mature causes of action against R.J. Reynolds that were continuously pursued by the Engle class and then by the estate-i.e., that the “causes of action” here are the decedent’s and that the 1999 amendments, therefore, do not apply to the punitive damages sought by the estate.

Because Florida’s case law establishes that wrongful death actions are distinct from personal injury actions and that there can be no wrongful death “cause of action” absent a death, the state high court concluded that the causes of action here arose when the decedent passed away in 2007 and, thus, plainly were governed by the 1999 amendments.

Causes of action. The estate’s primary argument involved the potential interplay between the state’s survival statute and the state’s Wrongful Death Act. On the one hand, the survival statute applies when a person dies while possessing a cause of action against another person, but the harm caused by the other person is not the cause of death. On the other hand, if a person dies from harm caused by another person, then the Wrongful Death Act applies. The Wrongful Death Act also explicitly provides that a wrongful death action is not a continuation of a personal injury action, the court noted. Indeed, the court explained, a wrongful death action involves its own limitations period and its own panoply of remedies. Accordingly, the supreme court has long recognized that a wrongful death action-or a wrongful death “cause of action” for that matter-accrues or arises upon death.

The high court recognized that there is some degree of continuity between a wrongful death action and a personal injury action and that a wrongful death action is, to a certain extent, “derivative.” However, the “derivative” aspect of a wrongful death action-i.e., the requirement that the decedent must have been able to “recover damages if death had not ensued,” is “simply a regulation of, and a limitation on, the statutory right of action created.”

“We have thus never held-nor do we today-that a personal representative who brings a wrongful death action based on, say, a theory of ‘negligence,’ is prosecuting the decedent’s cause of action for negligence,” the court said. On the contrary, the Wrongful Death Act creates an independent cause of action. The issue here was not whether the estate could make a claim for punitive damages but rather whether the claim was governed by the 1999 amendments. The supreme court held that it was. The court determined that Florida case law “compels the conclusion that the ‘causes of action’ in this case arose after October 1, 1999.”

“Arising” versus “accruing.” In its holding, the Fifth District had reasoned that a wrongful death “cause of action” accrues upon death, and that because the decedent died after October 1, 1999, the cause of action here necessarily accrued or arose after that date. Consequently, the Fifth District concluded that the 1999 amendments, by their plain terms, applied.

The estate argued that the Fifth District erroneously treated the terms “arising” and “accruing” as synonyms. The supreme court disagreed, noting that the estate effectively treated the terms as synonyms. Namely, after noting that “arise” means to “originate,” the estate asserted that the case “plainly ‘originates,’ ‘stems’ or ‘results’” from the decedent’s 1994 lung cancer. But linking the term “arise” to the decedent’s lung cancer was just another way of arguing that wrongful death causes of action “arise” when the decedent’s own causes of action “accrue,” an argument the high court rejected.

Certified conflict cases. Finally, the estate argued that the certified conflict cases, “reached the correct result.” However, the supreme court noted that none of the certified conflict cases drew any distinction between “arising” and “accruing” or suggested that wrongful death “causes of action” can arise or accrue before death. Instead, beginning with Allen, they largely turned on the notion that “Engle-progeny cases are different.” The court found, however, that the analysis underpinning Allen is flawed. Accordingly, the court disapproved Allen as well as the other two certified conflict cases.

Specifically, the court stated that Allen not only erroneously focused on “manifestation” rather than when a cause of action arises, but Allen additionally turned in part on a misreading of In re Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014). That case involved Engle progeny personal injury actions in which the plaintiffs died but the personal representatives failed to move to amend the complaints until after the two-year limitations period for bringing wrongful death actions. The federal district court simply held that the wrongful death claims in question related back to the filing of the original Engle progeny personal injury complaint so as to not be “time barred.” The court stated that nothing in In re Engle Cases supported the proposition seemingly attributed to it by Allen, namely that statutory amendments enacted after 1994 are per se inapplicable in Engle progeny cases.

In conclusion, the high court held that the relevant 1999 amendments apply in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments. Accordingly, the court approved the result in Sheffield reached by the Fifth District and disapproved the certified conflict cases of Allen Evers, and Konzelman.

Dissent. Justice Labarga dissented, stating that the estate’s causes of action could not have arisen in 2007 because the widow of the decedent “pick[ed] up litigation of” the “same causes of action” already partially litigated years earlier by “the same parties.” The “causes of action” here necessarily arose before the decedent’s 2007 death-not, as the majority concluded, on the date of his death, the dissenting judge opined.

This case is No. SC19-601.

Attorneys: David J. Sales (David J. Sales, P.A.) and Melvin B. Wright (Colling, Gilbert, Wright & Carter, LLC) for Mary E. Sheffield. William L. Durham II (King & Spalding, LLP), Troy A. Fuhrman (Hill Ward Henderson) and Charles R.A. Morse (Jones Day) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

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