              DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                      FOURTH DISTRICT

                         R.J. REYNOLDS TOBACCO COMPANY,
                                     Appellant,
                                        v.

                  BERTIE THOMAS, as Personal Representative of the
                            Estate of Marvin Thomas,
                                     Appellee.

                                       No. 4D17-3040

                                     [February 13, 2019]

       Appeal and cross-appeal from the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case No.
    07-CV-036432 (19).

      William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
    Georgia, for appellant.

      Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A.,
    Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for
    appellee.

GROSS, J.

    In this Engle 1 wrongful death action, R.J. Reynolds (“RJR”) appeals a final
judgment awarding the plaintiff $2.2 million in compensatory damages after
making a reduction for the decedent’s comparative fault. The plaintiff, Bertie
Thomas, cross-appeals the trial court’s reduction of the compensatory damages
award by the decedent’s share of comparative fault. We affirm on all issues raised
by RJR without further comment, but we reverse on the cross-appeal and remand
for reinstatement of the full value of the jury’s compensatory damages verdict.

   By way of background, the jury returned a verdict finding in favor of the
plaintiff on each claim, apportioning 45% of the fault to the decedent, determining
that the total amount of compensatory damages was $4 million, and concluding
that punitive damages were not warranted. Over the plaintiff’s objection, the trial
court made a reduction for the decedent’s comparative fault and entered final
judgment awarding the plaintiff $2.2 million in compensatory damages.



1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
     Under the law in this district at the time this case was tried, an Engle plaintiff’s
compensatory damages award had to be reduced by the smoker’s share of
comparative fault even if the plaintiff prevailed on intentional tort claims. See
R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) (“Schoeff
I”).

   However, the Florida Supreme Court later quashed Schoeff I and held that “the
comparative fault statute does not apply to Engle progeny cases in which the jury
finds for the plaintiff on the intentional torts such that the compensatory damage
awards in those cases are not subject to reduction.” Schoeff v. R.J. Reynolds
Tobacco Co., 232 So. 3d 294, 298 (Fla. 2017) (“Schoeff II”). The Florida Supreme
Court further explained that where the jury finds for the plaintiff on the
intentional tort claims, the plaintiff’s compensatory damages award “may not be
reduced” by comparative fault unless the plaintiff “waived the intentional tort
exception.” Id. at 305.

   On the cross-appeal, the plaintiff argues that the trial court erred in reducing
the compensatory damages award based on comparative fault where the jury
found for the plaintiff on the intentional tort claims. We agree.

    As an initial matter, the plaintiff did not waive the intentional tort exception
to comparative fault.       Throughout the litigation, the plaintiff steadfastly
maintained her position that any compensatory damages award should not be
reduced by comparative fault. Moreover, all of RJR’s waiver arguments based on
the plaintiff’s trial conduct have been foreclosed by Schoeff II and subsequent
case law applying that decision. See Schoeff II, 232 So. 3d at 306 (rejecting this
court’s “theory of waiver” that was based on arguments substantially similar to
those now raised by RJR in this appeal); Philip Morris USA, Inc. v. Gore, 238 So.
3d 828, 831 (Fla. 4th DCA 2018) (“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.”);
Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1089 (11th Cir. 2018) (“It
is true that this rhetorical question clearly compared Burkhart’s negligent
conduct with Appellants’ intentional conduct. However, in light of the entire body
of the trial record, we conclude that this statement cannot amount to a waiver of
Burkhart’s apportionment rights with respect to her negligence claims.”).

   We next turn to the appropriate remedy for the error. Relying heavily upon
Foreline Security Corp. v. Scott, 871 So. 2d 906, 911 (Fla. 5th DCA 2004), RJR
contends that because the jury was instructed that its damages verdict would be
reduced by comparative fault, the proper remedy for a reversal on this issue is a
new trial limited to damages and comparative fault.


                                          -2-
   In Philip Morris USA Inc. v. Martin, 43 Fla. L. Weekly D2747, D2749–50 (Fla.
4th DCA Dec. 12, 2018), however, we recently rejected this identical argument
and held the proper remedy for a trial court’s error in applying a comparative
fault reduction to an Engle progeny plaintiff who prevailed on the intentional tort
claims is reinstatement of the full amount of the jury verdict on compensatory
damages, even if the jury was erroneously instructed that its compensatory
damages award would be reduced by the smoker’s share of comparative fault. As
we explained in Martin:

      Here, the Florida Supreme Court’s elimination of the comparative
      negligence defense under the circumstances below leaves nothing for
      retrial or apportionment. The jury was instructed to award the
      compensatory damages they found to be attributable to the
      defendants—nothing less—nothing more. The fact that they were
      also instructed to determine the percentage of comparative
      negligence attributable to the plaintiff on a defense that the Florida
      Supreme Court has eliminated as applied here is of no consequence
      to the gross amount of compensatory damages awarded by the jury.

      Moreover, it is a well-established presumption that a jury would have
      properly followed a trial court’s instructions. . . .

      The jury was separately instructed to award the full amount of
      compensatory damages they found to be proximately caused by the
      defendants. They were also separately instructed to determine what
      percentage of comparative negligence, if any, they attributed to the
      plaintiff. They were instructed not to reduce the total amount of
      compensatory damages by the amount of comparative negligence,
      leaving it to the court to reduce any amount of comparative fault. In
      the absence of any evidence of wrongdoing by the jury, we must
      accept the well-established presumption that the jury properly
      followed the trial court’s instructions.

Id. at D2750 (citations omitted).

   In short, we presume that the jury has followed the court’s instructions, not
that the jury ignored the instructions and manipulated the damages award based
on its determination of comparative fault. Accordingly, we reverse and remand
on the cross-appeal “with instructions for the trial court to award compensatory
damages in the full amount of the jury’s verdict.” Gore, 238 So. 3d at 831.

   Affirmed on main appeal; reversed and remanded on cross-appeal.

CONNER and KLINGENSMITH, JJ., concur.

                               *         *        *
                                       -3-
Not final until disposition of timely filed motion for rehearing.




                              -4-
