           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY,
                         Appellants,

                                          v.

     ROBERT A. GORE, SR., as Personal Representative of the Estate of
                         GLORIA H. GORE,
                              Appellee.

                                   No. 4D15-3892

                                [ February 14, 2018 ]

   Appeal and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Cynthia A. Cox, Judge; L.T. Case
No. 312008010052CA04.

  Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, and David
Northrip of Shook, Hardy & Bacon, Kansas City, MO, for Appellant Philip
Morris USA, and Gregory G. Katsas of Jones Day, Washington, DC, and
Charles R.A. Morse of Jones Day, New York, NY, for Appellant R.J.
Reynolds Tobacco Company.

  Bard D. Rockenbach and Andrew A. Harris of Burlington &
Rockenbach, P.A., West Palm Beach, and Jason L. Odom of Gould,
Cooksey, Fennell, P.A., Vero Beach, for appellee.

TAYLOR, J.

   This is an Engle 1 progeny wrongful death case brought by the plaintiff,
Robert Gore, personal representative of the estate of his late wife, Gloria
Gore, against the defendants, Philip Morris and R.J. Reynolds. The
defendants appeal a final judgment awarding the plaintiff $460,000
against each of them after the trial court applied the jury’s comparative
fault determination. The plaintiff cross-appeals the judgment, raising
issues concerning punitive damages and comparative fault. We affirm as
to the main appeal, and reverse and remand as to both issues raised in
the cross-appeal.


1   Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
    As to the main appeal, we conclude that the defendants failed to
preserve any Daubert 2 challenge to the testimony of the plaintiff’s expert
historian, Dr. Proctor, concerning the defendants’ use of ammonia in an
effort to increase the addictiveness of cigarettes. “In order to be preserved
for further review by a higher court, an issue must be presented to the
lower court and the specific legal argument or ground to be argued on
appeal or review must be part of that presentation if it is to be considered
preserved.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928
(Fla. 2005) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)).

   The trial court ruled that Dr. Proctor could testify regarding his
historical review of the defendants’ efforts to manipulate the addictiveness
of cigarettes, but that he was not qualified to give an opinion on the
chemistry of tobacco. To the extent the defendants now suggest on appeal
that Dr. Proctor’s testimony went beyond a historical opinion and ventured
into a scientific opinion (i.e., that adding ammonia to cigarettes increases
their addictiveness), the defendants failed to preserve any Daubert
objection.

    Although the defendants raised the Daubert issue in a pre-trial motion
in limine, the trial court deferred ruling on it until trial. At trial, however,
the defendants never made any contemporaneous objection raising the
specific argument that Dr. Proctor’s ammonia testimony violated Daubert
or section 90.702, Florida Statutes. Indeed, there are no references by the
defendants to “Daubert” or “section 90.702” anywhere in the trial
transcript. We conclude, therefore, that this issue was not preserved for
appellate review. See Boyles v. A & G Concrete Pools, Inc., 149 So. 3d 39,
43–44 (Fla. 4th DCA 2014) (when a trial court declines to rule on a motion
in limine before trial, the moving party must raise a contemporaneous
objection at trial to preserve the issue for appellate review).

   With respect to the defendants’ remaining claims on appeal, we reject
the defendants’ due process and preemption arguments. See Philip Morris
USA, Inc., v. Douglas, 110 So. 3d 419, 430–36 (Fla. 2013); R.J. Reynolds
Tobacco Co. v. Marotta, 214 So. 3d 590, 605 (Fla. 2017).

    Turning to the cross-appeal, we agree with the plaintiff’s argument that
he is permitted to seek punitive damages on his claims for negligence and
strict liability. See Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219,
1221–22 (Fla. 2016). The plaintiff preserved this issue by making a
conditional request to amend his complaint to seek punitive damages on

2   Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).


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his non-intentional tort claims in the event the Florida Supreme Court
decided Soffer in his favor. 3 See Hardin v. R.J. Reynolds Tobacco Co., 208
So. 3d 291, 292 (Fla. 3d DCA 2016) (holding that the plaintiff properly
preserved the same issue by asking the trial court “to provisionally grant
her motion to allow punitive damages for her non-intentional tort claims
pending the Florida Supreme Court’s disposition of Soffer”). On remand,
the plaintiff is entitled to seek leave from the trial court to add claims for
punitive damages on his non-intentional tort claims. See Philip Morris
USA, Inc. v. Blackwood, 4D16-897, 2018 WL 354549, at *1 (Fla. 4th DCA
Jan. 10, 2018).

    Finally, we address the plaintiff’s argument that the trial court should
not have applied comparative fault to reduce the compensatory damages
award. Because the jury found for the plaintiff on the intentional tort
claims, the compensatory damages award may not be reduced by
comparative fault unless the plaintiff waived the intentional tort exception
to the comparative fault statute. See Schoeff v. R.J. Reynolds Tobacco Co.,
SC15-2233, 42 Fla. L. Weekly S951, 2017 WL 6379591 at *7 (Fla. Dec. 14,
2017). The intentional tort exception, however, is not waived simply
because an Engle plaintiff argues comparative fault on the negligence
counts. Id. at *8.

    Here, the plaintiff’s arguments to the jury were similar to those in
Schoeff that the Florida Supreme Court found to be insufficient to
constitute a waiver of the intentional tort exception. Moreover, although
the defendants now attempt to distinguish Schoeff on the basis that the
verdict form here, unlike in Schoeff, asked jurors to apportion fault after
the questions concerning the intentional tort claims, we are unpersuaded
by this argument. The verdict form in this case, to which the defendants
agreed, does not give rise to a finding that the plaintiff intentionally
relinquished the right to seek punitive damages for his non-intentional tort
claims. 4 See Smith v. R.J. Reynolds Tobacco Co., No. 13-14316, 2018 WL

3 The trial court did not—and legally could not under this court’s case law at the
time—grant the plaintiff’s request. Instead, the trial court entered an order
allowing the plaintiff to plead punitive damages as to his intentional tort claims
only.

4 Notably, the defendants did not rely on the verdict form as part of their waiver
theory below—or even in this appeal before we permitted supplemental briefing
on Schoeff. In fact, at trial, one of the defense lawyers stated the following in
reference to the structure of the verdict form: “We ultimately did this as a
compromise so that, if in the event it became an issue afterwards, both sides’
positions were preserved as to whether comparative fault was going to apply to
all the claims.”

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549141, at *7 (11th Cir. Jan. 25, 2018) (rejecting the defendant’s waiver
argument, in part because the defendant “did not object to the verdict form
that was given to the jury,” even though the verdict form “could clearly
have been drafted in a way that minimized, or even eliminated, any jury
confusion”).

    As the Eleventh Circuit explained: “It is difficult to conclude that a
litigant who has consistently proclaimed his opposition to apportionment
of fault on an intentional tort claim has somehow waived his right to later
maintain that position as to the entry of the judgment.” Id. We likewise
find that the plaintiff did not waive the intentional tort exception in this
case. 5 Accordingly, we reverse and remand on this issue with instructions
for the trial court to award compensatory damages in the full amount of
the jury’s verdict.

   In sum, we affirm on the main appeal, reverse on the cross-appeal, and
remand for further proceedings consistent with this opinion.

    Affirmed on main appeal; Reversed and Remanded on cross-appeal.

WARNER and DAMOORGIAN, JJ., concur.

                               *         *          *

    Not final until disposition of timely filed motion for rehearing.




5 It is unclear whether the trial court’s decision to give effect to the jury’s
comparative fault determination was based in part on the defendants’ waiver
argument, or instead whether it was based solely on the trial court’s application
of the then-existing law in this district that the intentional tort exception did not
apply to Engle cases. Assuming, arguendo, that the trial court’s decision was
grounded in part on the plaintiff’s alleged waiver of the intentional tort exception,
any finding of waiver would be an abuse of discretion under the circumstances
of this case.

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