        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

      SHIRLEY B. BAKER, Personal Representative of the ESTATE
                     OF ELMER P. BAKER,
                           Appellant,

                                      v.

                   R.J. REYNOLDS TOBACCO COMPANY,
                               Appellee.

                               No. 4D13-570

                            [February 18, 2015]

                            CORRECTED OPINION

  Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; David F. Crow, Judge; L.T. Case No.
502007CA020247XX.

  David J. Sales of David J. Sales, P.A., Jupiter, for appellant/cross-
appellee.

   Robert C. Weill, Eric L. Lundt, Gordon James, III, and Lenor C. Smith
of Sedgwick LLP, Fort Lauderdale, Donald Ayer and Gregory G. Katsas of
Jones Day, Washington, D.C., and Charles R.A. Morse of Jones Day, New
York, NY, for appellee/cross-appellant.

KLINGENSMITH, J.

    Shirley Baker (“Plaintiff”) sued R.J. Reynolds Tobacco Co. (“Defendant”)
for the death of her husband Elmer Baker (“Mr. Baker”) that was allegedly
caused by smoking. In her lawsuit, Plaintiff asserted claims for negligence,
strict liability, concealment, and conspiracy.        After the jury found
Defendant’s actions were not the legal cause of her husband’s death, she
argued that under the Florida Supreme Court’s decision in Engle v. Liggett
Group, 945 So. 2d 1246 (Fla. 2006) (hereinafter Engle III), the jury’s finding
that Mr. Baker was a member of the Engle class consequently established
the conduct and causation elements of her claims. She appeals the trial
court’s entry of final judgment in favor of Defendant, arguing the trial court
erred in denying her motion for a new trial because the jury’s verdict was
internally inconsistent. For the reasons set forth below, we affirm.
    Engle began as a 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.” R.J. Reynolds Tobacco
Co. v. Engle, 672 So. 2d 39, 40-42 (Fla. 3d DCA 1996) (hereinafter Engle
I). In Engle III, our supreme court decertified the class, but allowed certain
jury findings from the class action to have res judicata effect in any
subsequent lawsuits brought by individual class members seeking
damages from the defendants. 945 So. 2d at 1277.

   The Engle I jury made the following findings (hereinafter the Engle
findings), which the Florida Supreme Court approved:

      [A]s to Question 1 (that smoking cigarettes causes aortic
      aneurysm, bladder cancer, cerebrovascular disease, cervical
      cancer, chronic obstructive pulmonary disease, coronary
      heart disease, esophageal cancer, kidney cancer, laryngeal
      cancer, lung cancer (specifically, adenocarinoma, large cell
      carcinoma, small cell carcinoma, and squamous cell
      carcinoma), complications of pregnancy, oral cavity/tongue
      cancer, pancreatic cancer, peripheral vascular disease,
      pharyngeal cancer, and stomach cancer), 2 (that nicotine in
      cigarettes is addictive), 3 (that the defendants placed
      cigarettes on the market that were defective and unreasonably
      dangerous), 4(a) (that the defendants concealed or omitted
      material information not otherwise known or available
      knowing that the material was false or misleading or failed to
      disclose a material fact concerning the health effects or
      addictive nature of smoking cigarettes or both), 5(a) (that the
      defendants agreed to conceal or omit information regarding
      the health effects of cigarettes or their addictive nature with
      the intention that smokers and the public would rely on this
      information to their detriment), 6 (that all of the defendants
      sold or supplied cigarettes that were defective), (7) (that all of
      the defendants sold or supplied cigarettes that, at the time of
      sale or supply, did not conform to representations of fact made
      by said defendants), and 8 (that all of the defendants were
      negligent).

Id. at 1276-77.



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    “In [Engle I], the jury decided issues related to Tobacco’s conduct but
did not consider whether any class members relied on Tobacco’s
misrepresentations or were injured by Tobacco’s conduct.” Id. at 1263.
“The questions related to some, but not all of the elements of each legal
theory alleged.” Liggett Grp. Inc. v. Engle, 853 So. 2d 434, 450 (Fla. 3d
DCA 2003) (hereinafter Engle II). Critical elements of liability, such as
reliance and legal causation, were not determined by the Engle I jury. Id.
Accordingly, the Engle I jury did not determine Tobacco’s ultimate liability
to any individual class member. Id.; Engle III, 945 So. 2d at 1263.

   At trial in the instant case, both parties submitted proposed jury
instructions and verdict forms to the court for approval and submission to
the jury. Plaintiff was successful in getting the court to agree to her
requested separate instructions regarding both class membership and
legal causation. As to class membership, the Plaintiff’s instructions asked
the jury to determine “whether [Mr.] Baker was addicted to cigarettes
containing nicotine: and if so, whether his addiction was a legal cause of
his lung cancer and death.” As to legal cause, Plaintiff agreed to jury
instructions requiring the jury to find “for the defendant” if they made a
specific finding that “the negligence of the defendant” or “the defective and
unreasonably dangerous cigarettes placed on the market by the
defendant” were not “a legal cause of [Mr.] Baker’s lung cancer and death.”
Finally, over Defendant’s objections, the trial court instructed the jury that
the Engle findings would be binding if they determined that Mr. Baker was
a member of the Engle class. In that event, the findings would establish
the conduct elements of Plaintiff’s tort claims, leaving only legal causation,
comparative fault, damages, and entitlement to punitive damages for the
jury to consider.

   The trial court advised the jury, over defense objections, that if they
found Mr. Baker was addicted to cigarettes containing nicotine and such
addiction was the legal cause of death, “certain findings from a prior trial
will be binding on you and the parties.” The court then gave the following
instructions, by agreement of Plaintiff’s counsel, that:

         If you find for the plaintiff on this issue, these findings may
      not be denied or questioned and must carry the same weight
      they would have if you had determined them yourselves.
      These findings are: One, smoking cigarettes causes lung
      cancer; two, nicotine in cigarettes is addictive; three, R.J.
      Reynolds Tobacco Company placed cigarettes on the market
      that were defective and unreasonably dangerous; four, R.J.
      Reynolds Company concealed or omitted material information
      not otherwise known or available, knowing that the material

                                      3
     was false or misleading, or failed to disclose a material fact
     concerning the health effects or addictive nature of smoking
     cigarettes or both; five, R.J. Reynolds Tobacco Company
     agreed to conceal or omit information regarding the health
     effects of cigarettes or their addictive nature with the intention
     that smokers and the public would rely on this information to
     their detriment; six, R.J. Reynolds Tobacco Company sold or
     supplied cigarettes that were defective; seven, R.J. Reynolds
     Tobacco Company was negligent.

        These findings do not establish that Reynolds is liable
     for the plaintiff in this case, nor do they establish whether
     Elmer P. Baker was injured by Reynolds’ conduct, nor the
     degree, if any, to which Reynolds’ conduct was a legal
     cause of Elmer P. Baker’s lung cancer and death.

        ....

         On plaintiff’s negligence claim, the issue for your
     determination is whether the negligence of the defendant was
     a legal cause of Elmer P. Baker’s lung cancer and death. . . .

        ....

        Negligence is a legal cause of lung cancer and death if it
     directly and in natural and continuous sequence produces or
     contributes substantially to producing such lung cancer and
     death, so that it can reasonably be said that, but for the
     negligence, the lung cancer and death would not have
     occurred.

        In order to be regarded as a legal cause of lung cancer and
     death, negligence need not be the only cause. Negligence may
     be a legal cause of lung cancer and death, even though it
     operates in combination with the act of another or some other
     cause if the negligence contributes substantially to producing
     such lung cancer and death.

        On plaintiff’s strict liability claim, the issue for your
     determination is whether the defective and unreasonably
     dangerous cigarettes placed on the market by the defendant
     were a legal cause of Elmer P. Baker’s lung cancer and death.

(Emphasis added).

                                     4
    In accord with these instructions, the proposed verdict form—which the
trial court also adopted at Plaintiff’s request—was worded as follows:

      1. Was Elmer P. Baker addicted to cigarettes containing
      nicotine and, if so, was such addiction a legal cause of his
      lung cancer and death?

      Yes______         No______

      If your answer to question 1 is NO, then your verdict on all
      claims is for Defendant, R.J. Reynolds Tobacco Company, and
      you should not proceed further except to date and sign the
      Verdict Form and return it to the Courtroom.

      If your answer to Question 1 is YES, please answer
      questions 2, 3, 4 and 5.

      2. Was the negligence of R.J. Reynolds Tobacco Company a
      legal cause of Elmer P. Baker’s lung cancer and death?

      Yes______         No______

      3. Were the defective and unreasonably dangerous cigarettes
      placed on the market by R.J. Reynolds Tobacco Company a
      legal cause of Elmer P. Baker’s lung cancer and death?

      Yes______         No______

      4. Please state whether Elmer P. Baker reasonably relied to
      his detriment on any statement by R.J. Reynolds Tobacco
      Company which concealed or omitted material information
      concerning the health effects and/or addictive nature of
      smoking cigarettes, and if so, whether such reliance was a
      legal cause of his lung cancer and death.

         4(a) Before May 5, 1982?                   Yes___   No___
         4(b) After May 5, 1982?                    Yes___   No___
         4(c) Both before and after May 5, 1982?    Yes___   No___

      5. Please state whether Elmer P. Baker reasonably relied to
      his detriment on any act done in furtherance of the
      defendant’s agreement to conceal or omit material information
      concerning the health effects and/or addictive nature of


                                    5
      smoking cigarettes, and if so, whether such reliance was a
      legal cause of his lung cancer and death.

         5(a) Before May 5, 1982?                      Yes___   No___
         5(b) After May 5, 1982?                       Yes___   No___
         5(c) Both before and after May 5, 1982?       Yes___   No___

      If you answered NO to questions 2, 3, 4 and 5, then your
      verdict on all claims is for the Defendant R.J. Reynolds
      Tobacco Company, and you should not proceed further
      except to date and sign the Verdict Form and return it to the
      Courtroom.

(Emphasis added).

    The jury answered “yes” to question 1, but answered “no” to each
question and subsection of questions 2, 3, 4 and 5. Plaintiff then argued
to the trial court for the first time that the jury’s class-membership finding
was inconsistent with their other findings that neither negligence nor a
product defect legally caused Mr. Baker’s injuries. The trial court
ultimately denied Plaintiff’s request for a new trial and entered judgment
for Defendant on all of Plaintiff’s claims. This appeal ensued.

   Plaintiff contends that the jury’s verdict was internally inconsistent
because it found Mr. Baker was a member of the Engle class, yet also found
his lung cancer and death were not caused by Defendant’s negligence nor
by unreasonably dangerous and defective cigarettes. She argues that
when the jury found that Mr. Baker was a member of the Engle class, they
were therefore precluded from finding that his lung cancer and death were
not caused by Defendant’s negligence. In response, Defendant asserts
that any claimed inconsistency was the direct result of Plaintiff’s own jury
instructions and verdict form and is invited error.

    Under “the invited error rule ‘a party cannot successfully complain
about an error for which he or she is responsible or of rulings that he or
she has invited the trial court to make.’” Fuller v. Palm Auto Plaza, Inc.,
683 So. 2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Vill. Key &
Saw Shop, Inc., 656 So. 2d 475, 478 (Fla. 1995)); see also Muina v.
Canning, 717 So. 2d 550, 553 (Fla. 1st DCA 1998); Weber v. State, 602 So.
2d 1316, 1319 (Fla. 5th DCA 1992) (“[C]ounsel should not be allowed to
sandbag the trial judge by requesting and approving an instruction they
know or should know will result in an automatic reversal, if given.”). Thus,
“[a] party cannot claim as error on appeal that which he invited or
introduced below.” Fuller, 683 So. 2d at 655 (citation and internal

                                      6
quotation marks omitted)). Consistent with these principles, the “failure
to object to the [jury] instructions estops [a party] from arguing an
inconsistent verdict.” Dial v. State, 922 So. 2d 1018, 1021 n.1 (Fla. 4th
DCA 2006); see also McKee v. State, 450 So. 2d 563, 564 (Fla. 3d DCA
1984) (“the defendant is estopped from advancing the claim of inconsistent
verdicts,” because “the defendant not only failed to object to the
instructions, but also expressed his agreement to its submission”).

    Florida Rule of Civil Procedure 1.470(b) also states: “No party may
assign as error the giving of any instruction unless the party objects
thereto at such time . . . .” See Jenkins v. State, 380 So. 2d 1042, 1044
(Fla. 4th DCA 1980) (“[T]he failure to make timely objection constitutes a
waiver of the objection.”). “This requirement is based on practical
necessity and basic fairness in the operation of a judicial system. . . . [And
it] prevents counsel from allowing errors in the proceedings to go
unchallenged and later using the error to a client’s tactical advantage.”
Insko v. State, 969 So. 2d 992, 1001 (Fla. 2007) (citations and internal
quotation marks omitted).

    Plaintiff cites to Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla.
2013), to support her request for a new trial. In that case, the Florida
Supreme Court found that legal causation for the strict liability claim in
Engle-progeny cases is “established by proving that addiction to the Engle
defendants’ cigarettes containing nicotine was a legal cause of the injuries
alleged.” Id. at 429. Plaintiff argues that under Douglas, once the jury
found Mr. Baker was a member of the Engle class, they were prohibited
from finding that Mr. Baker’s addiction to Defendant’s cigarettes was not
the legal cause of his illness and death.

    The Douglas opinion was issued after the trial in this cause, and there
is uncertainty whether its holding represents a change in the law, or is a
mere clarification of existing law. Even assuming arguendo that Douglas
is a change in the governing law, Plaintiff was still obliged to preserve her
argument by stating an objection at trial in order to benefit from that
change. See Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (finding
“that any decision of this Court announcing a new rule of law, or merely
applying an established rule of law to a new or different factual situation,
must be given retrospective application by the courts of this state in every
case pending on direct review or not yet final. Art. I, §§ 9, 16, Fla. Const.
To benefit from the change in law, the defendant must have timely objected
at trial if an objection was required to preserve the issue for appellate
review.”). Because Plaintiff did not object to the submission of the
instructions or the verdict form to the jury, our supreme court’s decision
in Douglas does not retroactively apply.

                                      7
   In response to the claim of invited error, Plaintiff contends she was
required to propose these jury instructions to the trial court, which
included separate legal causation questions, pursuant to this court’s
decision in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th
DCA 2011). In that case, this court found that “post-Engle plaintiffs still
must prove the remaining elements of each legal theory alleged. Trial
courts must instruct the jury on the remaining elements, causation,
comparative fault, and damages and allow the jury to make those
decisions.” Id. at 718. However, at the time of trial in this matter, the
issue of how to apply Engle findings was still in jurisprudential
development.     We specifically noted this situation in Brown, and
highlighted the conflict among various courts on the issue presented to
the trial court:

         From a jurisprudence standpoint, the issue of how to apply
      the Engle findings is in its infancy. Presently, two opinions
      have addressed the issue: R.J. Reynolds Tobacco Co. v.
      Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) and Brown v. R.J.
      Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010). In
      Martin, the First District concluded that the Engle Phase I
      findings established the conduct elements of the asserted
      claims. Martin, 53 So. 3d at 1069. Martin also determined
      the plaintiff in that case had proven legal causation on her
      negligence and strict liability claims. Id. In making that
      determination, the Martin court pointed to the trial court’s
      instruction on legal causation with respect to addiction, which
      established plaintiff’s membership in the class. Id. We read
      Martin to approve the use of the class membership instruction
      for the dual purpose of satisfying the element of legal
      causation with respect to addiction and legal causation on the
      underlying strict liability and negligence claims.

         In contrast, the Eleventh Circuit in Brown refused to give
      the Engle findings such broad application. Brown determined
      that the Florida Supreme Court’s discussion of the res
      judicata effect of the Phase I findings necessarily referred to
      issue preclusion. 611 F.3d at 1333. Under that doctrine, “the
      Phase I approved findings may not be used to establish facts
      that were not actually decided by the jury.” Id. at 1334.
      Brown remanded the case to the district court to determine
      the scope of the factual issues decided in Engle Phase I, and
      then to decide “which, if any, elements of the claims [were]
      established” by those findings. Id. at 1336. “Until the scope of
      the factual issues decided in the Phase I approved findings is

                                     8
      determined, it is premature to address whether those findings
      by themselves establish any elements of the plaintiffs’ claims.”
      Id. (emphasis added). We conclude that the Martin court did
      not go far enough and the Brown court went too far.

Brown, 70 So. 3d at 714-15.

   Whether plaintiffs in tobacco cases post-Engle had to prove more than
mere class membership and damages was an unsettled area of law prior
to Douglas. By seeking to have the jury separately decide the issue of
causation, and without raising the issue of what effect should be given to
an Engle class finding, Plaintiff failed to preserve her right to appeal and
cannot now successfully claim error simply because the jury returned an
adverse verdict. See Gupton, 656 So. 2d at 478; see also Sheffield v.
Superior Ins. Co., 800 So. 2d 197, 202-03 (Fla. 2001) (stating that under
the rule of invited error, “‘a party may not make or invite error at trial and
then take advantage of the error on appeal.’” (quoting Goodwin v. State,
751 So. 2d 537, 544 n.8 (Fla. 1999))). Further, Plaintiff’s failure to object
prevents us from revisiting the jury verdict because “[t]he jury cannot be
faulted for doing exactly what it was instructed to do.” See Plana v. Sainz,
990 So. 2d 554, 557 (Fla. 3d DCA 2008); see also Beverly Health & Rehab.
Servs., Inc. v. Freeman, 709 So. 2d 549, 551 (Fla. 2d DCA 1998) (holding
that plaintiff waived error by agreeing to the verdict form); Papcun v. Piggy
Bag Disc. Souvenirs, Food & Gas Corp., 472 So. 2d 880, 881 (Fla. 5th DCA
1985) (citing to well-established Florida law and stating that “failure to
object to a verdict form regarding defects not of a constitutional or
fundamental character constitutes a waiver of such defects”). As such,
Plaintiff waived any argument that the alleged inconsistency is grounds for
a new trial. See Cocca v. Smith, 821 So. 2d 328, 330-31 (Fla. 2d DCA
2002).

  We find the Plaintiff’s remaining issues on appeal to be without merit,
and hereby affirm the trial court’s denial of Plaintiff’s motion for new trial.

   Affirmed.

STEVENSON and MAY, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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