       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 18, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-675
                         Lower Tribunal No. 07-43991
                             ________________


   Philip Morris USA, Inc. and R.J. Reynolds Tobacco Company,
                                   Appellants,

                                        vs.

Roland Ledoux, as Personal Representative of the Estate of Patricia
                        Mary Ledoux,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Beatrice
Butchko, Judge.

      Arnold & Porter Kaye Scholer, Daphne O'Connor and Geoffrey J. Michael
(Washington, DC); Shook, Hardy & Bacon and Frank Cruz-Alvarez; King &
Spalding, William L. Durham, II, and Val Leppert (Atlanta, GA), for appellants.

      Gordon & Doner, Robert E. Gordon and Gary M. Paige (Davie); Trop Law
Group and Adam Trop (Tamarac); David J. Sales and Daniel R. Hoffman (Jupiter),
for appellee.

Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
      EMAS, J.

      The defendants below, Philip Morris USA, Inc. (“PM”) and R.J. Reynolds

Tobacco Company (“RJR”) (together, “Defendants”), appeal from a final judgment

following a jury trial and a verdict in favor of the plaintiff below, Roland Ledoux

(“Roland”), as the personal representative of the estate of Patricia Mary Ledoux

(“Plaintiff” or “Patricia”). We affirm.

      FACTS

      Plaintiff brought an Engle1-progeny claim against Defendants, alleging that

Patricia died from lung cancer caused by an addiction to smoking cigarettes

manufactured and marketed by Defendants. Plaintiff alleged causes of action for

strict liability, fraud by concealment, conspiracy to commit fraud, and negligence.

      The case proceeded in two phases: In Phase I, the jury determined: 1)

whether Patricia was addicted to cigarettes containing nicotine; if so, 2) whether

her addiction was the legal cause of her lung cancer and death; if so, 3) the amount

of compensatory damages; and 4) whether punitive damages were warranted

1  Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006) began as a smokers’
class action lawsuit filed in 1994 against cigarette companies and tobacco industry
organizations seeking damages for smoking-related illnesses and deaths. The class
included all Florida “citizens and residents, and their survivors, who have suffered,
presently suffer or who have died from diseases and medical conditions caused by
their addiction to cigarettes that contain nicotine.” Id. at 1256. In Engle, the Florida
Supreme Court decertified the class, but held that certain jury findings from the
class action would have res judicata effect in any subsequent lawsuits by individual
class members seeking damages from the defendants. Philip Morris USA Inc. and
R.J. Reynolds Tobacco Company were defendants in Engle.

                                           2
against Defendants.    In Phase II, the jury determined the amount of punitive

damages.

      Prior to trial, Defendants filed several motions in limine, two of which are

relevant to this appeal. First, Defendants moved to exclude “testimony, other

evidence, or argument concerning . . . the number of deaths purportedly caused by

cigarettes.” The trial court denied this motion. Second, Defendants moved to

prohibit several categories of improper arguments. The trial court granted this

motion.

      1. Deaths Caused by Smoking

      a. Opening Statement

      During the Phase I opening statement, Plaintiff’s counsel told the jury, over

Defendants’ objection, that in 2014, there were “500,000 deaths per year from

smoking just from lung cancer in that one year in the United States” and that there

had been “20 million deaths since 1964 from smoking,” repeating the number “20

million.” Plaintiff’s counsel also stated over Defendants’ objection that “50 percent

of all regular smokers are going to die from smoking those cigarettes.” In addition,

Plaintiff’s counsel told the jury, again over Defendants’ objection, that “to this day,

smoking is the number one cause of preventable death in the United States . . .

[s]moking kills more people than alcohol, cocaine, heroin, homicide, suicide,

motor vehicle crashes and fires combined.”



                                          3
      b. Plaintiff’s Expert

      At trial, Plaintiff’s expert historian, Dr. Robert Proctor, testified as to the

number of deaths caused by smoking. Specifically, Dr. Proctor testified as to the

following:

      [Dr. Proctor]: Well, in the United States, it is over 500,000 Americans die
      every year from cigarettes.
      [Defendants’ counsel]: Objection, State Farm.2
      [The trial court]: Overruled.
      ...
      [Plaintiff’s counsel]: By the way, how many people since 1964 have died
      from lung cancer?
      [Doctor Proctor]: Of lung cancer –
      [Plaintiff’s counsel]: I mean from smoking.
      [Doctor Proctor]: From smoking – from cigarettes altogether, it is over 20
      million.
      [Plaintiff’s counsel]: Okay.
      [Defendant’s counsel]: Objection, Williams3/State Farm.
      [The trial court]: Overruled.
      ...
      [Plaintiff’s counsel]: Well, between 1950 and presently, how many people
      have died from smoking in America?


2 This is an apparent reference to the decision in State Farm Mutual Automobile
Insurance Co. v. Campbell, 538 U.S. 408 (2003).
3This is an apparent reference to the decision in Philip Morris USA v. Williams,
594 U.S. 346 (Fla. 2007). See discussion infra at *7-8.

                                           4
      [Defendants’ counsel]: Objection, Your Honor, Williams/State Farm.
      [The trial court]: Overruled.
      [Doctor Proctor]: Over 20 million Americans, closer to 25 million.

      2. Closing Argument

      During Plaintiff’s Phase I closing argument, Plaintiff’s counsel made several

arguments that Defendants characterize as improper and in violation of the trial

court’s in limine ruling prohibiting certain types of arguments. In particular,

Defendants contend that Plaintiff’s counsel engaged in the following improper

arguments:

             Comment Number One:

      [Plaintiff’s counsel]: But I can tell you this, if in 1996 someone had
      put an ad in the paper that Roland Ledoux had read – he reads the
      paper every day – and the ad was, we will pay you $10 million, and
      all you have to do is you have to sit there and you have to watch your
      wife, the love of your life, choke and struggle and die in front of you –

      Defense counsel objected, stating “there’s no evidence of this, Your Honor.”

The objection was overruled.

             Comment Number Two:
      Immediately thereafter, Plaintiff’s counsel told the jury:
      Then you have to bury her and you have to live alone for the next 19
      years and the rest of your life, I submit to you that Roland Ledoux
      would have said, thank you, but keep the money.

      This comment drew an objection which was sustained by the trial court.

The trial court, however, denied Defendants’ motion for mistrial.


                                          5
             Comment Number Three:

      In the final complained-of argument, Plaintiff’s counsel said:

      If there was a way that Roland Ledoux could wave a magic wand and
      bring his wife back in and she would walk in the door, he would walk
      right out that courtroom and right there, take her hand and say, come
      on, honey, let’s go home. He was not given that option. He is here
      because of what the Defendants did. And he’s going to ask you to
      hold them accountable.

      Defendants did not interpose an objection to this argument, but it was raised

in their posttrial motion for new trial.

      3. The Verdicts

      At the conclusion of Phase I, the jury found that Patricia was addicted to

smoking cigarettes containing nicotine manufactured by Defendants and as a result

she died from lung cancer. The jury found for Plaintiff, allocating 47% of the

comparative fault to each Defendant and 6% to Patricia. The jury awarded Plaintiff

$10 million in compensatory damages for his pain and suffering. The jury also

found for Plaintiff on the intentional torts of concealment and conspiracy to

conceal. In addition, the jury found by clear and convincing evidence that

Defendants’ conduct warranted punitive damages. In Phase II, the jury awarded

$12.5 million in punitive damages against each Defendant. The trial court entered

final judgment in favor of Plaintiff holding Defendants jointly and severally liable

for the $10 million in compensatory damages and each Defendant liable for $12.5

million in punitive damages.


                                           6
      4. Post-trial Motions

      Defendants filed several post-trial motions. Defendants moved for a new

trial or, in the alternative, remittitur, arguing that the damage awards were

excessive. Defendants also requested to reduce the compensatory damages award

by the percentage of comparative fault attributed by the verdict to Patricia.

Defendants moved the trial court to apply a credit against the jury’s award of

punitive damages based on the amounts paid by PM USA and RJR’s predecessor-

in-interest, Lorillard Tobacco Company (“Lorillard”), as part of the Guaranteed

Sum Stipulation–a stipulation entered into in the original Engle litigation. Finally,

Defendants moved for a new trial on the basis of improper arguments. The trial

court denied each of these motions.

      ANALYSIS

      1. Deaths Caused by Smoking

      Defendants argue that the trial court erred in allowing Plaintiff to introduce

evidence and present argument regarding the number of deaths caused by smoking.

Defendants contend this evidence was irrelevant and unduly prejudicial, requiring

a new trial. Our standard of review on a trial court’s evidentiary rulings is abuse of

discretion. Salazar v. State, 991 So. 2d 364, 373 (Fla. 2008). We conclude that the

trial court did not abuse its discretion in permitting Plaintiff to introduce evidence

and present argument regarding the number of deaths caused by smoking as it was



                                          7
relevant to the issue of entitlement to punitive damages (an issue determined by the

jury during Phase I of the trial), and bears upon the question of “reprehensibility.”

      Further, the trial court properly guided and limited the jury’s consideration

of this evidence by giving the following instruction:

      In determining whether punitive damages are warranted, you may not
      punish a Defendant for any harm suffered by any individuals others
      than Mr. Ledoux or Mrs. Ledoux. You may consider harms suffered
      by other persons not parties to this lawsuit in deciding whether to
      punish a Defendant for the reprehensibility or wrongness of its
      conduct.

See Philip Morris USA v. Williams, 549 U.S. 346, 355 (2007) (agreeing that harm

to others is relevant to the issue of reprehensibility but that “[g]iven the risks of

unfairness, it is constitutionally important for a court to provide assurance that a

jury is asking the right question;” that is, “seeking, not simply to determine

reprehensibility, but also to punish for harm caused [to] strangers”).

      2. Closing Arguments

      Defendants assert that three arguments made by Plaintiff’s counsel during

closing argument, described above, were improper and therefore require a new

trial. On appeal, Defendants assert that these arguments were a violation of the

Golden Rule. A Golden Rule argument asks the jurors “to place themselves in the

plaintiffs’ position and urge[s] them to award an amount of money they would

desire if they had been the victims.” Coral Gables Hosp., Inc. v. Zabala, 520 So. 2d

653, 653 (Fla. 3d DCA 1988). “[A] golden rule argument . . . is impermissible


                                          8
because it encourages the jurors to decide the case on the basis of personal interest

and bias rather than on the evidence.” Metro. Dade Cty. v. Zapata, 601 So. 2d 239,

241 (Fla. 3d DCA 1992). “Such arguments constitute reversible error, if a

contemporaneous objection is made, because they strike at the very heart of our

justice system.” SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997, 1003

(Fla. 3d DCA 2008). “Even when an attorney does not explicitly ask the jurors

how much money they would wish to receive in the plaintiff’s position, comments

may violate the Golden Rule if they implicitly suggest that the jury place itself in

the plaintiff’s position.” Id.

       We are dubious of Plaintiff’s characterization of these comments as Golden

Rule arguments. Defendants contend that this characterization is supported by the

First District’s decision in Bocher v. Glass, 874 So. 2d 701 (Fla. 1st DCA 2004).

In Bocher, plaintiffs’ counsel told the jury during closing argument that if a “magic

button” were placed in front of Mrs. Williams (naming one of the jurors) and $6

million were placed in front Mr. Brooks (naming another juror), the plaintiffs

would walk past the money and press the button to bring their son back. The First

District found this improper, observing:

       Although we recognize that the “magic button” argument did not
       explicitly ask the jurors how much they would want to receive had
       their own child died in an accident, we find it was nonetheless
       improper. The only conceivable purpose behind counsel’s argument
       was to suggest that jurors imagine themselves in the place of Jeffrey’s
       parents. Counsel utilized jurors’ actual names, and even set up the


                                           9
        jury box as a prop for the “magic button” and the $6 million. “Golden
        rule” arguments are improper because they depend upon inflaming the
        passions of the jury and inducing fear and self-interest. See Tremblay
        v. Santa Rosa County, 688 So.2d 985, 987 (Fla. 1st DCA 1997). The
        “magic button” argument had the same effect. If jurors are to remain
        fair decision-makers, the trial court must guard against a deliberate act
        of counsel that serves to put the jury center stage in the drama that
        should be the trial.

        As the above excerpt demonstrates, the circumstances attendant to that

argument—including the staging and use of the jury box as a prop, and utilizing

individually-named jurors to play roles in a scene created by counsel, more closely

approximate a Golden Rule argument, and distinguish Bocher from the instant

case.

        This does not end the analysis because, whether or not these arguments

constituted a Golden Rule violation, we find that they nevertheless were ill-

conceived and improper.        Although it is evident that Plaintiff’s counsel was

attempting to illustrate the practical limitations of our civil justice system by

arguing to the jury that no monetary award—regardless of the amount—would

suffice to give Roland what he truly wanted, the argument was presented in an

overly-dramatic manner such that it could evoke the jury’s sympathy. We have

expressed in prior opinions the impropriety of similar arguments. See e.g., Philip

Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 38 (Fla. 3d DCA 2015).




                                           10
      But while we conclude that these arguments were improper, we also

conclude that the trial court properly denied Defendants’ motion for mistrial and

motion for new trial.

      We address Comments Number One and Three together, as neither were

properly preserved at trial. As to Comment Number One, Defendants are urging,

as a basis for reversal, a different objection than the one they raised at trial. As

previously explained, Defendants contend in this appeal that the argument was a

Golden Rule violation; however, the objection actually interposed at trial was

“Objection, there’s no evidence of this.” This objection failed to place the trial

court on notice of the error that Defendants now assert in this appeal. See

Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla. 1987) (holding that “to preserve

an issue for appellate review, the specific legal argument or ground upon which it

is based must be presented to the trial court”); Connolly v. State, 172 So. 3d 893,

902 (Fla. 3d DCA 2015).         By failing to properly preserve this objection,

Defendants waived the issue for appeal, absent a showing of fundamental error.

See McDonald v. State, 743 So. 2d 501 (Fla. 1999). In like fashion, Defendants’

failure to make any contemporaneous objection to Comment Number Three also

waived this claim for appellate review absent a showing of fundamental error.

      As to these unpreserved comments, we conclude that the trial court did not

abuse its discretion in denying the motion for new trial. Upon this record, we



                                        11
determine that these comments did not rise to the level of fundamental error,

Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000), and that the trial court could

reasonably conclude “that the improper closing argument . . . was not harmful,

incurable, or of a character to so damage the fairness of the trial that the public’s

interest in our system of justice requires a new trial.” Murphy v. Int’l Robotic

Sys., Inc., 766 So. 2d 1010, 1032 (Fla. 2000).

      Comment Number Two was properly preserved by an objection. The trial

court correctly sustained that objection but no curative instruction was requested or

given and a motion for mistrial was thereafter denied. We review the trial court’s

denial of a motion for mistrial and motion for new trial for an abuse of discretion.

Cuculino, 165 So. 3d at 39. “If the issue of an opponent’s improper argument has

been properly preserved by objection and motion for mistrial, the trial court should

grant a new trial if the argument was ‘so highly prejudicial and inflammatory that

it denied the opposing party its right to a fair trial.’” Id. (quoting Engle v. Liggett

Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006)). We find no abuse of discretion in

the trial court’s denial of the motion for mistrial and subsequent denial of the

motion for new trial, and conclude that the argument was not so highly prejudicial

as to deny Defendants a fair trial.

      Finally, considering the cumulative effect of both the preserved and

unpreserved errors in closing argument, we find no abuse of discretion in its denial



                                          12
of Defendants’ motion for new trial, as the improper arguments did not deprive

Defendants of a fair trial. See Brooks, 762 So. 2d at 899 (the standard applicable

to consideration of the cumulative effect of both the objected-to and unobjected-to

closing argument is whether the appellant was denied a fair trial).

      3. The Verdict

      a. Compensatory Damages Award

      Defendants argue that the $10 million compensatory damage award is

excessive and that the trial court erred in denying Defendants’ motion for

remittitur.4 We apply an abuse of discretion standard in reviewing a trial judge’s

denial of a motion for remittitur of a compensatory damages award. Glabman v.

De La Cruz, 954 So. 2d 60 (Fla. 3d DCA 2007). Because damages are inherently

difficult to measure, such a decision is generally one to be made by the jury, not by

an appellate court. R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307, 311

(Fla. 1st DCA 2012). Further, “the law has long given considerable deference to

the trial court’s decision [on a motion for remittitur] because of the unique vantage

point which the trial court has to personally observe the witnesses and jury and to

assess the credibility and manifest weight of the evidence–as opposed to the

appellate court which has only a cold record to review.” Rety v. Green, 546 So. 2d


4 Defendants further argue that if the remitted amount is more than $1 million,
Defendants reserve their right to reject the remittitur in favor of a new trial on
compensatory damages as well as punitive damages.

                                         13
410, 418 (Fla. 3d DCA 1989). See also Lorillard Tobacco Co. v. Alexander, 123

So. 3d 67 (Fla. 3d DCA 2013). This longstanding principle of deference to the

trial court’s review of a jury’s damages award is reinforced by section 768.74,

Florida Statutes (2016) entitled “Remittitur and additur,” which provides:

      1) In any action to which this part applies wherein the trier of fact
      determines that liability exists on the part of the defendant and a
      verdict is rendered which awards money damages to the plaintiff, it
      shall be the responsibility of the court, upon proper motion, to review
      the amount of such award to determine if such amount is excessive or
      inadequate in light of the facts and circumstances which were
      presented to the trier of fact.

      (2) If the court finds that the amount awarded is excessive or
      inadequate, it shall order a remittitur or additur, as the case may be.

      (3) It is the intention of the Legislature that awards of damages be
      subject to close scrutiny by the courts and that all such awards be
      adequate and not excessive.

      (4) If the party adversely affected by such remittitur or additur does
      not agree, the court shall order a new trial in the cause on the issue of
      damages only.

      (5) In determining whether an award is excessive or inadequate in
      light of the facts and circumstances presented to the trier of fact and in
      determining the amount, if any, that such award exceeds a reasonable
      range of damages or is inadequate, the court shall consider the
      following criteria:

      (a) Whether the amount awarded is indicative of prejudice, passion, or
      corruption on the part of the trier of fact;
      (b) Whether it appears that the trier of fact ignored the evidence in
      reaching a verdict or misconceived the merits of the case relating to
      the amounts of damages recoverable;




                                         14
      (c) Whether the trier of fact took improper elements of damages into
      account or arrived at the amount of damages by speculation and
      conjecture;
      (d) Whether the amount awarded bears a reasonable relation to the
      amount of damages proved and the injury suffered; and
      (e) Whether the amount awarded is supported by the evidence and is
      such that it could be adduced in a logical manner by reasonable
      persons.

      (6) It is the intent of the Legislature to vest the trial courts of this state
      with the discretionary authority to review the amounts of damages
      awarded by a trier of fact in light of a standard of excessiveness or
      inadequacy. The Legislature recognizes that the reasonable actions of
      a jury are a fundamental precept of American jurisprudence and that
      such actions should be disturbed or modified with caution and
      discretion. However, it is further recognized that a review by the
      courts in accordance with the standards set forth in this section
      provides an additional element of soundness and logic to our judicial
      system and is in the best interests of the citizens of this state.

(Emphasis added).

      An award of damages may not be declared excessive merely because it is

above the amount which the trial court itself may believe the jury should have

awarded. Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla.

1976); Townsend, 90 So. 3d at 311. In assessing whether the award is excessive,

the “trial court does not sit as a seventh juror. Neither does the reviewing court

reserve the prerogative to overturn a damages verdict with which it merely

disagrees.” R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 336 (Fla. 1st

DCA 2012) (quoting Dyes v. Spick, 606 So. 2d 700, 702 (Fla. 1st DCA 1992)).

“The verdict should be disturbed only when ‘it is so inordinately large as obviously



                                           15
to exceed the maximum limit of a reasonable range within which the jury may

properly operate.’” Townsend, 90 So. 3d at 311 (quoting Bould v. Touchette, 349

So. 2d 1181, 1184 (Fla. 1977)).

        Upon our consideration of the record in this case as well as other

compensatory damages awards in similar Engle-progeny cases, and giving proper

deference to the jury’s award and the trial court’s subsequent review of that award,

we cannot conclude that the trial court abused its discretion in denying Defendants’

motion for remittitur, as we cannot say that the damages award “obviously exceeds

the ‘reasonable range within which the jury may properly operate.’” Townsend, 90

So. 3d at 311-12 (quoting Bould, 349 So. 2d at 1185) (affirming trial court’s denial

of motion for remittitur of $10.8 million compensatory damages award in Engle-

progeny case). See also Alexander, 123 So. 3d at 79 (affirming trial court’s order

remitting compensatory damages award from $20 million to $10 million, and

holding it was appropriate to defer to “[t]he trial court, [which] is in the best

position to determine whether the compensatory damage award is excessive”).

        b. Reduction of Compensatory Damages Based Upon Comparative

Fault

        Defendants next contend that they are entitled to a reduction in

compensatory damages based on the jury’s finding of comparative fault.

Conceding that, in a negligence action, such a reduction would be appropriate,



                                        16
Plaintiff counters that no reduction of the award is warranted in the instant case

because, at its core, the case is founded upon an intentional tort.        For this

proposition, Plaintiff relies upon section 768.81, Florida Statutes (2016), entitled

“Comparative fault.” That statute provides in pertinent part:

      (1) Definitions.-- As used in this section, the term :

      ...

      (c) “Negligence action” means, without limitation, a civil action for
      damages based upon a theory of negligence, strict liability, products
      liability, professional malpractice whether couched in terms of
      contract or tort, or breach of warranty and like theories. The substance
      of an action, not conclusory terms used by a party, determines
      whether an action is a negligence action.

Subsection (2) further provides:

      (2) Effect of contributory fault.--          In a negligence action,
      contributory fault chargeable to the claimant diminishes
      proportionately the amount awarded as economic and noneconomic
      damages for an injury attributable to the claimant's contributory fault,
      but does not bar recovery.

Subsection (4) provides:

      (4) Applicability.--      This section does not apply to any action
      brought by any person to recover actual economic damages resulting
      from pollution, to any action based upon an intentional tort, or to any
      cause of action as to which application of the doctrine of joint and
      several liability is specifically provided by chapter 403, chapter 498,
      chapter 517, chapter 542, or chapter 895.

      (Emphasis added.)




                                         17
      In R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013),

the trial court denied the defendant’s motion to reduce the plaintiff’s compensatory

damages award by the smoker’s comparative fault based on its conclusion that the

“core” of the plaintiff’s suit was founded upon an intentional tort. Id. at 852. The

First District found no abuse of discretion in the trial court’s determination that

although the plaintiff pleaded negligence and strict liability, the additional

allegations of the intentional torts and the proof of affirmative, calculated

misrepresentations in the tobacco companies’ advertising and other publications

supported its conclusion that at its core, the action involved an intentional tort. Id.

      In R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA

2015), the trial court determined that, at its core, plaintiff’s suit was a product

liability suit based on conduct grounded in negligence, and therefore reduced the

compensatory damages award based on the plaintiff’s comparative fault. The

Fourth District, applying a de novo standard of review, affirmed the trial court’s

determination. Id. at 496.

      Upon our de novo review,5 we hold that, in the instant case, the trial court

properly denied Defendants’ request because at its core this was an “action based

5 We note that the First District in Sury applied an abuse of discretion standard to a
review of this determination, while the Fourth District in Schoeff applied a de novo
standard. The Florida Supreme Court granted review of Schoeff based upon
express and direct conflict with Sury. Schoeff v. R.J. Reynolds Tobacco Co.,
SC15-2233 (oral argument held March 8, 2017). We agree with the Fourth District
in this regard, and apply a de novo standard to review of the trial court’s

                                           18
upon an intentional tort.” § 768.81(4). See also Merrill Crossings Assocs. v.

McDonald, 705 So. 2d 560, 563 (Fla. 1997) (acknowledging that “[t]he words

chosen ‘based upon an intentional tort,’ imply to us the necessity to inquire

whether the entire action against or involving multiple parties is founded or

constructed on an intentional tort. In other words, the issue is whether an action

comprehending one or more negligent torts actually has at its core an intentional

tort by someone”). Therefore, the trial court did not err in denying Defendants’

motion to reduce the compensatory damages award by the percentage of

comparative fault assigned by the jury to Patricia.

      We find that the other arguments advanced by Defendants are without merit

and affirm on those points without further discussion.6

      Affirmed.




determination. In doing so, we acknowledge conflict with the standard of review
applied by the First District in Sury.
6We note that, among these issues, Defendants have asserted that Plaintiff’s use of
and reliance upon the Engle findings violates due process, and that Defendants
were entitled to a credit against the punitive damages judgment, based on the
Guaranteed Sum Stipulation arising out of the original Engle litigation.

                                         19
