           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                     R.J. REYNOLDS TOBACCO COMPANY,
                                 Appellant,

                                          v.

     LESLIE SCHLEFSTEIN, as Personal Representative of the Estate of
                      DAWN SCHLEFSTEIN,
                             Appellee.

                                   No. 4D18-1150

                                 [August 28, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No.
2008CV022558 (03).

   Scott Michael Edson of King & Spalding LLP, Washington, DC, and
William L. Durham II of King & Spalding LLP, Atlanta, GA, for appellant.

   Alex Alvarez and Michael Alvarez of The Alvarez Law Firm, Coral Gables,
Celene H. Humphries and Thomas J. Seider of Brannock & Humphries,
Tampa, and Gary M. Paige of Gordon & Partners, Davie, for appellee.

KLINGENSMITH, J.

    Defendant R.J. Reynolds Tobacco Company appeals from an adverse
verdict in an Engle-progeny 1 survival action filed by Plaintiff Leslie
Schlefstein on behalf of his late wife (“Mrs. Schlefstein”). Reynolds claims,
among other things, that the trial court erred in limiting its ability to
defend against the decedent’s class membership after it withdrew its
affirmative defense of comparative negligence. We agree that this was error
and reverse for new trial. Our reversal renders moot the other issues
raised on appeal.

     I.     Background

  Plaintiff’s initial complaint admitted that “[e]ach Plaintiff smoker bears
some measure of fault,” and requested apportionment of fault and

1   Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
damages. Plaintiff later withdrew this admission when he filed his fourth
amended complaint. As a result, Plaintiff’s negligence claim was amended
to allege that the “Engle Phase I findings conclusively established that all
of the Defendants were negligent,” and that “[a]s a proximate result of the
Defendants’ negligence, Plaintiff’s Decedent, sustained injuries[.]” In
response, Reynolds withdrew its affirmative defense of comparative fault.

    Before trial commenced, Plaintiff’s counsel showed Reynolds’ attorneys
several slides intended for opening statement. Reynolds objected to one
slide that read: “Class Membership is Not About:” the “Fault of either
party,” arguing this was an inaccurate statement of law:

      DEFENSE COUNSEL: I’m just letting Your Honor understand
      my objection that this is a little bit more substantive.

      There is -- it is the plaintiff’s burden of proof to show that
      addiction was a legal cause of the disease, which means that
      these other things that they are talking about, her decision to
      smoke, her desire to smoke was the sole legal cause, then the
      plaintiff hasn’t proven their case on class membership. So
      this is an inaccurate statement of law. If they want to add
      something in there that there can be other causes, that would
      be one thing. But what they are saying is it has nothing to do
      with it at all, and that’s an inaccurate statement of law.

(Emphases added).

   In response, Plaintiff’s counsel furnished the trial court with appellate
briefs filed in other cases to show that this argument had been previously
presented to and rejected by this court. 2 The trial court overruled
Reynolds’ objection.

2 The record from the lower tribunal shows that Plaintiff’s counsel provided the
trial judge with appellate briefs discussing the issues argued but never decided
in those appellate cases. For example, Plaintiff pointed to this court’s decision in
Perrotto v. R.J. Reynolds Tobacco Co., 169 So. 3d 284, 286 (Fla. 4th DCA 2015),
using the briefs to suggest we had decided Engle class membership is not about
“fault.” However, Perrotto does not discuss class membership. Rather, the only
issue decided in that case was the disqualification of the trial judge.
    Plaintiff’s counsel also asked the trial court to rely on R.J. Reynolds Tobacco
Co. v. Enochs, 226 So. 3d 872, 873 (Fla. 4th DCA 2017), claiming Reynolds’
arguments about “choice” and “failure to quit” had been considered and rejected
in that case by this court. Plaintiff attached Reynolds’ appellate brief in Enochs
to its legal memoranda for the trial court on the issue of “choice;” where,
“[p]laintiff won a verdict and, as one of the four issues on appeal, Defendant

                                         2
   During Reynolds’ opening statement, counsel claimed that the evidence
would show Mrs. Schlefstein did not make any attempt to quit smoking
until her family members urged her to do so, prompting her to quit
smoking to placate them as opposed to being of her own initiative.
Plaintiff’s counsel objected to this, saying this statement was inconsistent
with Reynolds’ withdrawal of its comparative fault affirmative defense.
Plaintiff’s counsel explained that the defense could not argue the
decedent’s reasons for stopping or restarting smoking because such
matters related to what they described as “conduct evidence” involving the
waived affirmative defense.

    Reynolds took the position that the case was about what caused Mrs.
Schlefstein’s illness, arguing it was not caused by addiction but because
she enjoyed smoking.         In other words, Reynolds contended Mrs.
Schlefstein smoked cigarettes and continued to smoke for reasons other
than addiction. As to the withdrawn comparative negligence defense,
Reynolds’ counsel explained that this withdrawal merely removed the
allocation of fault question from the verdict form. Thus, the withdrawal of
the defense had no effect on Plaintiff’s burden of proving class
membership, nor did it limit Reynolds’ ability to argue Mrs. Schlefstein
was the sole legal cause of her illness. After further discussion, it was
agreed that Reynolds’ counsel would clarify its position in opening
statement consistent with its withdrawal of comparative fault.

   Reynolds’ counsel continued and told the jury, “We are not blaming her.
We are not criticizing her for her choices. They were her choices. We are
not going to ask you to assign blame to her or answer a question saying
that she contributed to her injuries.” When Reynolds brought up the fact
that Mrs. Schlefstein chose to hide her smoking from her parents when
she was a teenager, the trial court sustained Plaintiff’s objection and

argued that ‘choice,’ ‘ability to quit,’ and ‘knowledge of dangers’ were, in fact, part
of the class membership.” By doing so, Plaintiff’s counsel suggested that this
court considered those arguments and rejected them by affirming the verdict.
However, the Enochs decision did not make a ruling on that issue; it merely
mentioned that the issue was presented to this court on appeal. Enochs provides
no authority on those issues presented here and should not have been presented
to the trial court as such.
    While it does not appear that the trial court expressly relied on any of these
assertions in making its rulings, Plaintiff’s counsel improperly submitted these
appellate briefs to the trial court to expressly or impliedly represent these cases
as persuasive or binding authority on the class membership issue. Doing so
misstated the rulings of both cases on these matters. See State v. Swartz, 734
So. 2d 448, 448 (Fla. 4th DCA 1999).

                                          3
struck that portion of the opening statement from the record. This led to
yet another sidebar conference, where Reynolds’ counsel explained that
Mrs. Schlefstein hid her smoking because she knew it was bad for her—
relating to the reasonableness of her reliance pertaining to the alleged
fraud and conspiracy claims as well as the addiction element of class
membership.

    Recognizing Plaintiff’s objections to any “blame” and “choice” references
would continue to recur throughout trial, Reynolds filed a memorandum
of law explaining the effect of its withdrawn affirmative defense. First, that
the withdrawal of its comparative fault defense did not limit its ability to
argue Mrs. Schlefstein’s “choice” to smoke—the equivalent of “failure to
quit”—was the sole legal cause of her injuries. Second, that the withdrawal
did not limit Reynolds’ ability to defend against class membership because
comparative fault only applies if the jury determined Mrs. Schlefstein was
a member of the Engle class. As such, available information about her
smoking history was pertinent to the class membership discussion.

   In response, Plaintiff argued Reynolds was not permitted to discuss
“choice” because class membership only requires that the smoker was
addicted, and that the addiction caused the disease. See Lorillard Tobacco
Co. v. Mrozek, 106 So. 3d 479, 481 (Fla. 1st DCA 2012). Plaintiff’s counsel
continued:

         They are telling the jury it’s a matter of: Was it addiction that
         caused the person to smoke long enough, that it’s often
         enough and enough cigarettes to get sick, or was it choice?
         That is not the question.

         Choice is in play, whether it’s an addictive choice or the choice
         driven by something else specific.            Choice is not a
         determinative. It is not a part of the definition at all. There’s
         no support in Douglas, 3 there’s no support in Engle, there’s
         no support anywhere for taking out that word “addiction” and
         saying, well, if it’s choice, then it must be the plaintiff’s fault,
         because addiction is always part of the choice analysis.

         So the question is: Why did the plaintiff make the choice? Was
         it addiction, or was it something else?




3   Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013).

                                           4
(Emphases added). Following additional argument over whether Mrs.
Schlefstein’s “choice” to smoke could be argued as a general defense to
class-membership, the trial court ruled:

      THE COURT: With regards to the class membership issue and
      as far as the fact that contributing cause has been withdrawn
      by the defense –

      DEFENSE COUNSEL: I’m sorry, Your Honor. Not contributing
      cause.

      PLAINTIFF COUNSEL: Comparative.

      THE COURT: Comparative, I’m sorry – comparative negligence
      has been withdrawn by the defense. If the defense has another
      reason other than choice, then the defendant can argue that
      the plaintiff was not addicted and chose to smoke for that
      particular reason. You cannot just argue that she made a
      choice to smoke.

      DEFENSE COUNSEL: Can I confer for a moment, Your Honor?

      THE COURT: Let me finish. The defense is precluded from
      arguing that the plaintiff’s decision to smoke, despite knowing
      the risk, is a bar to legal causation or class membership
      because it withdrew the comparative negligence defense.

(Emphases added). Reynolds replied that this ruling was tantamount to a
directed verdict on addiction causation that would be impossible to
navigate during trial. Accordingly, Reynolds’ counsel moved for mistrial:

      DEFENSE COUNSEL: And I guess I don’t understand. I mean,
      we’re back to the point I don’t understand the Court’s ruling.
      And I’m not trying to be obtuse. The Court said we’re not
      allowed to argue choice. Those are reasons she made the
      choice to continue smoking.

      THE COURT: No, no. What I’m saying is that your sole
      argument cannot be that it was her choice. If you have other
      reasons that the evidence is going to establish, then you can
      argue those other reasons, and – and that’s not precluded.
      You just cannot argue that the only reason is that she chose
      to smoke.


                                    5
      DEFENSE COUNSEL: And I guess what I’m struggling with,
      those are the reasons that she chose to smoke. So they’re not
      separable.

(Emphases added). The trial court further clarified that “the failure to quit
is not relevant to class membership.”

   After the court denied the motion for mistrial, Plaintiff called his expert
Dr. Drobes, who testified at length about the relationship between
addiction and quitting. He opined that Mrs. Schlefstein’s failed quit
attempts and personal desire to quit met the criteria for addiction because
“she attempted to cut down and quit over a period of years yet continued
to smoke or was unable to cut down.” He testified that Mrs. Schlefstein
had a clinically significant “persistent desire or unsuccessful efforts to cut
down or control tobacco use” because “she made several attempts to cut
down and quit smoking, until she was finally successful.”

   Because of this testimony, Reynolds sought clarification as to whether
the door was now opened, as counsel explained, “[t]o . . . make sure that I
understand that quitting is relevant and admissible with respect to
addiction and addiction causation” and whether “that’s going to apply to
the defense as well.” (Emphasis added). The trial court initially responded
that “it’s not relevant to whether she falls within the Engle class,” but then
clarified that although the parties could ask questions about addiction,
“what you cannot do is blame her and say it was her choice.” (Emphasis
added). Thereafter, Dr. Drobes continued expressing his opinions on
addiction and quitting, including various methods the decedent used in
attempting to quit.

   On cross-examination, the trial court restricted Reynolds’ counsel from
delving into the issues of “choice” and “failure to quit.” These restrictions
were similarly enforced when Reynolds attempted to question its own
expert witness Dr. Giakas. In response to Dr. Drobes’ testimony that Mrs.
Schlefstein “continued to smoke despite knowledge that her smoking could
harm her” 4 because of her addiction, Reynolds’ counsel asked Dr. Giakas
whether a person who was aware of the health risks associated with
smoking would be motivated to quit.            Dr. Giakas answered, “Not
necessarily. I mean, people know the risks of smoking and choose to take


4Plaintiff’s counsel used a slide entitled “Definition of Addiction” during opening
statement which read: “Addiction is characterized as a chronic, relapsing brain
disease that is characterized by compulsive drug seeking and use, despite harmful
consequences.”

                                        6
those risks.” Plaintiff’s counsel’s objection was sustained, and the answer
was stricken from the record.

   During closing argument, Plaintiff stated that Mrs. Schlefstein’s failure
to quit smoking established that she smoked because of addiction;
therefore, Mrs. Schlefstein was a member of the Engle class. Reynolds, in
turn, attempted to argue Mrs. Schlefstein’s unsuccessful attempts to quit
did not establish addiction because the evidence showed she simply
“wasn’t very interested in quitting.” The trial court once again sustained
Plaintiff’s objection based on the withdrawn comparative fault defense.
Ultimately, the jury determined that Mrs. Schlefstein was a member of the
Engle class and proceeded to Phase II of the trial. At the conclusion of
Phase II, the jury returned a verdict for Plaintiff on all claims and awarded
$465,000 in medical expenses, $13.5 million in noneconomic damages,
and $27,799,999.99 in punitive damages. 5 This appeal follows.

    II.      Analysis

   A trial court’s decision to limit and preclude evidence and arguments is
generally reviewed for abuse of discretion. See Wall v. Alvarez, 742 So. 2d
440, 442 (Fla. 4th DCA 1999). A court abuses its discretion when such
decisions are based on an error of law. See Wilbur v. Hightower, 778 So.
2d 381, 385 (Fla. 4th DCA 2001). Where the trial court makes its
determination about relevance when applying the law to the facts, those
decisions are reviewed under the de novo standard. See Cote v. State, 14
So. 3d 1137, 1139 (Fla. 4th DCA 2009).

    The central issue argued during Phase I in the trial court below was
whether Mrs. Schlefstein was a member of the Engle class. To prove class
membership on an individual basis, the plaintiff must establish “(i)
membership in the Engle class; (ii) individual causation, i.e., that addiction
to smoking the Engle defendants’ cigarettes containing nicotine was a legal
cause of the injuries alleged; and (iii) damages.” Philip Morris USA, Inc. v.
Douglas, 110 So. 3d 419, 430 (Fla. 2013).

          In other words, the Phase I common liability jury determined
          general causation (the connection between the Engle
          defendants’ addictive cigarettes and the diseases in question)
          which leaves specific or individual causation (the connection

5 Reynolds raised the issue on appeal that the punitive damages award was
“excessive and in violation of due process . . . .” We note, however, that they never
invoked the provisions of section 768.73(2), Florida Statutes (2018) in the lower
court.

                                         7
      between the Engle defendants’ addictive cigarettes and the
      injury that an individual plaintiff actually sustained) to be
      determined on an individual basis. The Engle defendants may
      defend against the establishment of individual causation, for
      example, by proving that the disease at issue was the result
      of a genetic predisposition, exposure to an occupational
      hazard, or something unrelated to the plaintiff’s addiction to
      smoking the Engle defendants’ cigarettes.”

Id. at 428 (emphasis added). Thus, the issue of class membership focuses
on the decedent smoker’s motivation and ability to quit smoking as a
component of the larger question regarding the smoker’s alleged addition.
See Collar v. R.J. Reynolds Tobacco Co., 222 So. 3d 581, 583 (Fla. 4th DCA
2017) (“A smoker’s motivation and ability to quit smoking is deeply
intertwined with the smoker’s addiction to nicotine; they are two sides of
the same coin.”).

    The gist of Plaintiff’s argument on appeal is that when Reynolds
withdrew its comparative negligence defense, it waived the right to argue
that the decedent’s actions caused her injuries. Reynolds’ counter-
argument is that its withdrawal did not deprive it of the right to argue that
Mrs. Schlefstein’s actions were the “sole legal cause” of her damages or
restrict its right to defend against an issue on which the plaintiff carried
the burden of proof. We agree with Reynolds in this case that the
withdrawal of the affirmative defense does not alter an Engle plaintiff’s
burden of proof, or the defendant’s ability to present evidence to counter
it.

   “An affirmative defense is an assertion of facts or law by the defendant
that, if true, would avoid the action and the plaintiff is not bound to prove
that the affirmative defense does not exist.” Custer Med. Ctr. v. United
Auto. Ins., 62 So. 3d 1086, 1096 (Fla. 2010).

    “A defendant has a right to waive any defense. Comparative negligence
only has the effect of reducing damages if liability is established.” Bryant
v. Fiadini, 405 So. 2d 1341, 1343 (Fla. 3d DCA 1981) (emphasis added)
(citations omitted). If the plaintiff was the sole cause of his or her injuries,
the defendant’s conduct cannot be the legal cause. See Hoffman v. Jones,
280 So. 2d 431, 438 (Fla. 1973).

   “[W]ithdrawal of the comparative negligence defense [does] not in any
way deprive [a defendant] of the right to argue that Plaintiffs’ actions were
the ‘sole legal cause’ of their own injuries.” Goulah v. Ford Motor Co., 118
F.3d 1478, 1485 (11th Cir. 1997) (applying Florida law). “[I]ndividual

                                       8
plaintiffs do not simply walk into court, state that they are entitled to the
benefit of the Phase I findings, prove their damages, and walk away with a
judgment against the Engle defendants.” Douglas, 110 So. 3d at 431.
“Instead, to gain the benefit of the Phase I findings in the first instance,
individual plaintiffs must prove membership in the Engle class.” Id.

    The Engle class definition requires that “the individual’s smoking-
related illness resulted from the individual’s addiction to cigarettes
containing nicotine.” Chacon v. Philip Morris USA, Inc., 254 So. 3d 1172,
1177 (Fla. 3d DCA 2018) (quoting Damianakis v. Philip Morris USA, Inc.,
155 So. 3d 453, 462 (Fla. 2d DCA 2015)). “Proving class membership often
hinges on the contested issue of whether the plaintiff smoked cigarettes
because of addiction or for some other reason (like the reasons of stress
relief, enjoyment of cigarettes, and weight control argued below).” Douglas,
110 So. 3d at 431-32. Even if Reynolds had never raised a comparative
negligence defense, the same evidence of addiction, or lack of it, would
have been admissible at trial on the issue of class membership—that Mrs.
Schlefstein was completely responsible for her smoking related injuries.
The evidence describing her brief smoking abstentions, how long they
endured, and her reasons for stopping directly refutes Plaintiff’s
contention that Mrs. Schlefstein was addicted and thus a class member.

   Plaintiff relies on Mrozek, 106 So. 3d at 481, for the position that
“choice” was not relevant to the plaintiff’s burden of proving class
membership and that class membership only requires that “the smoker
is/was addicted to cigarettes containing nicotine, and contracted or died
from a disease caused by cigarette smoking.” However, that case is
distinguishable on its facts.

   In Mrozek, the tobacco company defendant argued that the trial court
erred in granting summary judgment for plaintiff on the issue of class
membership because there remained an issue of fact as to whether the
plaintiff’s illness was caused by addiction or “by her choice to continue
smoking.” Id. The First District affirmed summary judgment and held
that “choice” was not relevant to class membership. Id. “Whether the
addicted individual kept smoking after learning of cigarettes’ deleterious
health effects is a question of comparative fault, and thus, of liability to be
determined at trial.” Id. There, the plaintiff’s addiction was undisputed.
Id. In this case, Mrs. Schlefstein’s addiction was contested by the defense.
Accordingly, Mrozek simply reaffirms the proposition that it is an Engle
plaintiff’s burden to prove addiction causation, not that a tobacco
defendant is precluded from arguing “choice” when trying to dispute it.



                                      9
   Similarly, Plaintiff incorrectly argues that Douglas requires a specific
“reason” for a defendant to argue “choice” in defending against class
membership, and absent a specific reason for the choice, Reynolds was
precluded from making this argument. In support of this contention,
Plaintiff focuses on the parenthetical list of reasons provided in that case,
claiming a defendant must provide one of those specific reasons when
arguing the individual’s “choice” to smoke. However, nothing in Douglas
suggests that “choice” alone, in and of itself, does not suffice. A plain
reading of the subject passage in Douglas suggests that the Florida
Supreme Court merely provided a non-exclusive list of examples that could
be asserted to negate addiction causation. Using the language “like the
reasons of stress relief, enjoyment of cigarettes, and weight control argued
below” makes it clear that the Court never intended to prevent parties from
suggesting other motives. See Douglas, 110 So. 3d at 432 (emphasis
added).

   In previous cases, this court has expressly recognized the “interlocking
relationship” between a smoker’s ability to quit and nicotine addiction:

      A smoker’s motivation and ability to quit smoking is deeply
      intertwined with the smoker’s addiction to nicotine; they are
      two sides of the same coin. This interlocking relationship was
      recognized by a federal court which found an expert’s
      testimony regarding the smoker’s differing levels of motivation
      to quit was “entirely consistent with the [National Institute on
      Drug Abuse] definition of ‘addiction,’ which accounts for the
      lack of motivation that smokers have to quit smoking and for
      their liking to smoke, even if they were aware of the dangers
      of doing so.”

Collar, 222 So. 3d at 583 (quoting Starbuck v. R.J. Reynolds Tobacco Co.,
102 F. Supp. 3d 1281, 1306 (M.D. Fla. 2015)). Plaintiff’s argument that
“choice” is irrelevant is meritless in light of this “interlocking relationship.”
See id.

   Furthermore, Plaintiff opened the door to Reynolds’ “choice” arguments
when they presented the testimony of their addiction expert, Dr. Drobes.
The concept of “opening the door” allows admission of otherwise
inadmissible testimony to explain or limit evidence previously admitted.
See Siegel v. State, 68 So. 3d 281, 288 (Fla. 4th DCA 2011). After Plaintiff’s
expert testified that the decedent continued to smoke because of her
addiction, despite knowledge that her smoking could harm her, the trial
court erred in limiting Reynolds to saying, “we are not blaming Mrs.
Schlefstein” or “we are not claiming she’s at fault.” Under those

                                       10
circumstances, the trial court should have allowed Reynolds to argue what
it believed were reasons other than addiction that the decedent continued
smoking.

   In arguing we should affirm the Phase II jury findings, Plaintiff claims
that Reynolds was able to make all of its arguments on the contested
issues in various ways throughout trial despite the trial court’s rulings.
The record shows that the trial court’s rulings demonstrably impacted
Reynolds’ overall presentation of evidence notwithstanding Reynolds’
counsel’s attempt to navigate within the lines drawn. Plaintiff, as the
beneficiary of the errors, must show there is no reasonable possibility that
they contributed to the verdict. See Special v. W. Boca Med. Ctr., 160 So.
3d 1251, 1256 (Fla. 2014) (discussing harmless error analysis). Here,
Plaintiff has not sustained his burden of showing that the defense was not
hamstrung by the trial court’s erroneous rulings throughout trial.

   Reynolds’ pretrial withdrawal of the affirmative defense of comparative
fault prevented it from seeking a reduction of any recovery if the jury
determined Mrs. Schlefstein was a member of the Engle class. The waiver
of that affirmative defense did not foreclose its ability to defend against
Plaintiff’s burden of proving decedent’s Engle class membership for Phase
I. Because the line as to when “choice” becomes “addiction” is not defined,
the trial court’s limitation on Reynolds’ ability to defend against the
threshold issue of “addiction” because of the withdrawn affirmative
defense was improper. This error affected the presentation of evidence
throughout the trial proceedings such that a new trial on all issues is
warranted.

   Reversed and remanded for new trial.

LEVINE, C.J., and DAMOORGIAN, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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