        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                  R.J. REYNOLDS TOBACCO COMPANY,
                              Appellant,

                                        v.

  JOAN SCHOEFF, as Personal Representative of the Estate of JAMES
                EDWARD SCHOEFF, deceased,
                           Appellee.

                                No. 4D13-1765

                              [November 4, 2015]

   Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jack B. Tuter, Judge; L.T. Case No.
08-022608 (19).

  Gordon James, III, and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale,
and Gregory G. Katsas, of Jones Day, Washington, D.C., for appellant.

   John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee,
Alex Alvarez of The Alvarez Law Firm, Coral Gables, and Gary M. Paige of
Gordon & Doner, Davie, for appellee.

DAMOORGIAN, J.

    R.J. Reynolds Tobacco Company (“RJR”) appeals the final judgment
entered in favor of Joan Schoeff Spolzino as Representative of the estate of
her deceased husband, James Schoeff (“Plaintiff”). RJR raises four issues
on appeal. First, it contends that the trial court erred in denying its motion
for a directed verdict because Plaintiff failed to prove addiction causation.
Second, it asserts that certain comments made by Plaintiff’s counsel
during closing necessitate a new trial. Third, it argues that the court erred
in denying its motion to remit the jury’s compensatory and punitive
damages awards. Fourth, it argues that the court’s application of the
Engle1 findings violated its due process rights. Plaintiff cross-appeals,
arguing that the court erroneously reduced the jury’s compensatory
damages award based on Mr. Schoeff’s comparative fault. We reverse and
remand for remittitur of the punitive portion of the judgment, and affirm

   1   Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
in all other respects.

   Background

       a) Pleadings

   The instant case is an Engle progeny case. See Engle v. Liggett Group,
Inc., 945 So. 2d 1246 (Fla. 2006). Plaintiff filed suit against RJR2 asserting
membership in the Engle class because her husband died from lung
cancer “caused by his addiction to cigarettes.” In her suit, Plaintiff alleged
causes of action for strict liability, fraud by concealment, conspiracy to
commit fraud by concealment, negligence, and gross negligence. She also
admitted that Mr. Schoeff shared some fault for his smoking-related
injuries and represented that she would “seek apportionment of fault,
pursuant to the principles of comparative fault, on the counts for
negligence and strict liability; however not with respect to the counts
constituting intentional torts as pled in this action.”

       b) The Trial

     The case proceeded to trial in two phases in the manner we approved
in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 714 (Fla. 4th DCA
2011). In the first phase, the jury was asked to: 1) determine whether Mr.
Schoeff was a member of the Engle class; 2) if so, whether RJR’s conduct
was the legal cause of his death; and 3) determine damages. The jury was
also asked to determine whether Plaintiff was entitled to punitive damages
if it found against RJR on Plaintiff’s claims for fraudulent concealment or
conspiracy to fraudulently conceal.

   After considering the evidence, the jury returned its verdict, finding that
Mr. Schoeff was addicted to nicotine, his addiction was a legal cause of his
lung cancer and death; and that the negligence of RJR as well as the
defective and unreasonably dangerous cigarettes manufactured by RJR
were a legal cause of Mr. Schoeff’s lung cancer and death. It allocated Mr.
Schoeff’s comparative fault for his injuries at 25%. Additionally, the jury
found that Mr. Schoeff detrimentally relied on statements made by RJR
which concealed or omitted material information, and that such reliance
was a legal cause of his cancer and death. Based on these findings, the
jury awarded Plaintiff $10.5 million in compensatory damages and found
that punitive damages were warranted.


   2  Plaintiff also sued several other tobacco companies, but all except RJR
were dismissed before trial.

                                      2
   The second phase of the trial concerned the proper amount of punitive
damages. During closing arguments in this phase, Plaintiff’s counsel
asked the jury to award Plaintiff $25 million in punitive damages and no
more. Specifically, counsel stated: “you may think that’s too low, but we
urge you not to go above that. Please do not go above 25 million. Do not.
She doesn’t want that. Do not go above that.” Despite Plaintiff’s urging,
the jury returned a verdict assessing $30 million in punitive damages
against RJR.

      c) Post-Trial Motions and Rulings

   Following the trial, RJR filed a motion asking the court to reduce the
compensatory damages award to reflect the comparative fault assigned to
Mr. Schoeff by the jury. Plaintiff filed a response in opposition arguing
that the comparative fault statute should not apply since the jury found
RJR committed the intentional tort of fraudulent concealment.
Additionally, RJR moved for a new trial on evidentiary grounds. In the
alternative, RJR moved for remittitur of both the compensatory and
punitive damages awards, arguing that they were both excessive and not
supported by the evidence.

   Considering the above pleadings, the trial court granted RJR’s motion
to enter judgment consistent with the jury’s finding on comparative fault,
denied RJR’s motion for a new trial, and denied RJR’s motion to remit the
compensatory and punitive damages awards. In granting RJR’s motion to
reduce the jury’s compensatory award by Mr. Schoeff’s comparative fault,
the court ruled that Plaintiff waived her argument regarding comparative
fault based on representations counsel made to the jury. Alternatively,
the court ruled that even if Plaintiff had not waived her argument, the
intentional tort exception to the comparative fault statute would not apply
as Plaintiff’s suit was a products liability suit at its core. In denying RJR’s
motion to remit the punitive damages award, the court recognized that
there was no logical basis for the jury to award a larger amount than
Plaintiff requested, but found that the jury’s award was “NOT infected by
bias, prejudice, passion or any other sentiment against Defendant.”

   In accordance with its above rulings, the court entered final judgment
awarding Plaintiff $7,875,000 in compensatory damages and $30 million
in punitive damages, for a total of $37,875,000. This appeal follows.

   Analysis

   We affirm the court’s denial of RJR’s motion for directed verdict, motion
for a new trial, and motion to remit the jury’s compensatory damages

                                      3
award without further comment. We also affirm the court’s application of
the Engle findings pursuant to our decision in Brown and our supreme
court’s decision in Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla.
2013). We write only to address the punitive damages award and the
court’s reduction of the compensatory award based on Mr. Schoeff’s
comparative fault.

   a) Punitive Damages

   RJR argues that the court erred in refusing to remit the $30 million
punitive damages award because it is unconstitutionally excessive. This
Court reviews a trial court’s order denying a motion for remittitur for an
abuse of discretion. City of Hollywood v. Hogan, 986 So. 2d 634, 647 (Fla.
4th DCA 2008). However, the constitutionality of a punitive damages
award is reviewed de novo. Lorillard Tobacco Co. v. Alexander, 123 So. 3d
67, 81 (Fla. 3d DCA 2013).

   Pursuant to Florida's remittitur and additur statute, the trial court has
the responsibility to review the amount of an award and determine if it is
excessive or inadequate “in light of the facts and circumstances which were
presented to the trier of fact.” § 768.74(1), Fla. Stat. (2012). “If the court
finds that the amount awarded is excessive or inadequate, it shall order a
remittitur or additur, as the case may be.” § 768.74(2), Fla. Stat. In
making its determination, the trial court is guided by the following
statutory considerations:

     (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;

     (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.


                                      4
§ 768.74(5), Fla. Stat.

    “[T]he purpose of punitive damages is not to further compensate the
plaintiff, but to punish the defendant for its wrongful conduct and to deter
similar misconduct by it and other actors in the future.” Owens–Corning
Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The amount
of punitive damages to be awarded is an issue left to the discretion of the
jury. Id. However, the imposition of a punitive damage award is subject
to limitations.

   Under Florida law, the courts evaluate the extent of a punitive damages
award by considering whether: 1) the amount is so excessive as to be “out
of all reasonable proportion” to the conduct; 2) the award bears some
relationship to ability to pay; and 3) there is a reasonable relationship
between compensatory and punitive damages. See R.J. Reynolds Tobacco
Co. v. Townsend, 90 So. 3d 307, 313 (Fla. 1st DCA 2012). As for whether
any given punitive damages award is so excessive as to violate due process,
the United States Supreme Court has identified three guideposts to
consider: 1) the degree of reprehensibility of defendant’s conduct; 2) the
ratio between compensatory and punitive damages; and 3) civil and
criminal penalties for the same conduct. Id. (citing BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 562 (1996)). “Although there is no bright-line
standard, the Florida Supreme Court observed in Engle that ‘[s]ingle-digit
[ratios] are more likely to comport with due process, while still achieving
the State’s goals of deterrence and retribution.’” Id. at 314 (quoting Engle,
945 So. 2d at 1264–65 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 425 (2003))).

   At this juncture in the trajectory of Florida Engle cases, the appellate
cases with the highest affirmed punitive damages awards are R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), and
Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013).
Applying the above outlined principles, the Martin court upheld a $25
million punitive damages award that bore a 7.58 to 1 ratio to the $3.3
million compensatory damages award based on the tobacco company’s
wanton and reprehensible behavior. 53 So. 3d at 1072−73. On the same
considerations, the Alexander court upheld a $25 million punitive
damages award that bore a 2.5 to 1 ratio to a remitted compensatory
damages award of $10 million. 123 So. 3d at 81−82. This Court followed
suit in R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049, 1049, 1052
(Fla. 4th DCA 2013), affirming that the jury’s initial $25 million punitive
damages award (which was subsequently remitted to $15,705,000) as
compared to a $5,235,000 compensatory damages award was not so
excessive as to violate due process.

                                     5
   On the other hand, in R.J. Reynolds Tobacco Co. v. Townsend, 90 So.
3d 307, 314 (Fla. 1st DCA 2012), the court held that a $40.8 million
punitive damages award was excessive in the face of a $10.8 million
compensatory damages award, even though the evidence of the tobacco
company’s bad conduct was the same as that presented in Martin and the
ratio between the punitive and compensatory awards was less than that
upheld in Martin. In doing so, it reasoned that “the $10.8 million
compensatory damage award—which is substantial by any measure—
justifies a lower ratio than 3.7 to 1.” Id. at 315–16.

    The award in Plaintiff’s case ($30 million punitive award in light of
$10.5 million compensatory award, a 2.9 to 1 ratio) falls somewhere
between the award affirmed in Alexander ($25 million punitive award in
light of $10 million compensatory award) and the award reversed in
Townsend ($40.8 million punitive award in light of $10.8 million
compensatory award). In light of the $10.5 million compensatory damages
award, we hold that the $30 million punitive damages award falls on the
excessive side of the spectrum.

    Additionally, even if the award was not unconstitutionally excessive,
remittitur should have been granted. Plaintiff’s counsel begged the jury
not to award her more than $25 million in punitive damages and the trial
court found that there was “no logical or sound reason for the jury to have
exceeded the award sought by counsel for Plaintiff.” This finding in and of
itself compels remittitur. See § 768.74(5)(e), Fla. Stat. (one of the factors
for consideration on motion for remittitur is whether the award “could be
adduced in a logical manner by reasonable persons”).

   Accordingly, we remand to the trial court with directions to grant RJR’s
motion for remittitur, and, if RJR does not agree with the remitted amount,
to hold a new trial on punitive damages. See R.J. Reynolds Tobacco Co. v.
Webb, 130 So. 3d 262, 264 (Fla. 1st DCA 2013) (holding that proper
remedy when trial court improperly denied tobacco company’s motion to
remit was to remand for remittitur, or, if tobacco company did not agree
with the remitted amount, to hold a new trial on damages).

   b) Comparative Fault

   Plaintiff cross-appeals the trial court’s order reducing the
compensatory damages award based on the jury’s finding that Mr. Schoeff
was 25% at fault for his lung cancer. She asserts that because the jury
found RJR committed the intentional tort of fraudulent concealment,
section 768.81(4), Florida Statutes, barred application of Mr. Schoeff’s

                                     6
comparative fault to reduce damages. RJR counters that the trial court
correctly found Plaintiff invited the reduction and further, the substance
of Plaintiff’s action was a products liability suit. Thus, RJR maintains that
Plaintiff’s damages were subject to reduction under the comparative fault
statute. We agree with RJR.

    Sections 768.81(2) and (4), Florida Statutes (1994)3, provide, in
pertinent part, that in “negligence cases,” “any 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.”
“Negligence cases” include, but are not limited to, “civil actions 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.” § 768.81(4)(a), Fla. Stat. “In
determining whether a case falls within the term ‘negligence cases,’ the
court shall look to the substance of the action and not the conclusory
terms used by the parties.” § 768.81(4)(a), Fla. Stat. Section 768.81 does
not permit the reduction of compensatory damages by plaintiff’s
comparative fault where the suit is based upon an intentional tort (“the
intentional tort exception”). See § 768.81(4)(b) Fla. Stat.

               a) Waiver

   As outlined above, in granting RJR’s motion to reduce the jury’s
compensatory damages award by Mr. Schoeff’s comparative fault, the trial
court found that Plaintiff waived any argument regarding the intentional
tort exception. “[A] trial court’s finding of waiver is reviewed for abuse of
discretion.” R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 473, 479 (Fla.
1st DCA 2014).

   The case with the most in depth discussion on waiver is Hiott. 129 So.
3d at 479–82. There, a tobacco plaintiff argued that the trial court
improperly reduced her compensatory damages based on the smoker’s
comparative fault because she prevailed on her intentional tort claims
against the tobacco companies. Id. at 479. The First DCA disagreed,

   3    The parties dispute which version of the statute governs: Plaintiff asserts
it is the version as amended in 1992 while RJR contends it is the version as
amended in 2011. Courts generally have held that the applicable version of
section 768.81 is the version in effect at the time the cause of action accrued.
See Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 691-96 (Fla. 5th DCA 2002).
Plaintiff’s cause of action accrued in 1994, when Mr. Schoeff was diagnosed with
lung cancer. See, e.g., Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d
932, 934 (Fla. 2000). As such, the 1994 version of the statute governs.

                                        7
holding that under the facts of the case, the trial court did not abuse its
discretion in finding that the plaintiff invited the error by misleading the
jury. Id. at 481. Specifically, the plaintiff “encouraged the jury, from voir
dire through closing argument, that she accepted that her deceased
husband was partially at fault for his smoking-related illness and death.
Thus, she expected the jury to allocate some fault to her late husband.”
Id. Indeed, the jury was instructed that it “should not make any reduction
because of the fault you charge to [the smoker]. The Court will enter a
judgment based on your verdict and will reduce the total amount of
damages by the percentage of fault which you charge to [the smoker].”
Id. However, the plaintiff “failed to inform the jury that she intended to
reserve her right to assert the inapplicability of comparative fault to any of
her claims.” Id. at 480-81. Under the circumstances, the court concluded
that the jury was likely misled to believe that its award would be reduced
by its determination of comparative fault. Id. at 481-82. Thus, the jury
may have reached a different verdict on damages had it known that the
tobacco company would bear the entire amount. See id.; see also
Buonomo, 138 So. 3d at 1053 n.3 (holding, without discussion, that any
error in the reduction of a tobacco plaintiff’s compensatory damages award
was invited and/or waived by the plaintiff).

    In R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849, 851 (Fla. 1st DCA
2013), the same court reached the opposite conclusion under slightly
different facts. There, the First DCA held that the trial court did not abuse
its discretion in finding a tobacco plaintiff did not waive application of the
intentional tort exception. Id. The court based its conclusion on the facts
that: 1) the plaintiff’s “complaint clearly and specifically sought ‘potential
apportionment of fault and damages on all counts other than those
alleging intentional torts;’” 2) the plaintiff “never argued to the jury or the
court that the damages for his father’s terminal illness should be reduced
by his portion of fault;” and 3) “the defendants agreed to the verdict form
which listed each cause of action, including the intentional torts, and
requested the jury to indicate whether the defendants had committed each
individual tort or not.” Id.

   Plaintiff argues that this particular case is factually analogous to Sury
rather than Hiott, and thus the court erred when it found that Plaintiff
waived her intentional tort exception argument. As it pertains to Plaintiff’s
position on comparative fault, the record reflects the following:

      A. Pleadings

   Plaintiff’s complaint stated that: “Plaintiff will seek apportionment of
fault, pursuant to the principles of comparative fault, on the counts for

                                      8
negligence and strict liability; however not with respect to the counts
constituting intentional torts as pled in this action.”

      B. Plaintiff’s Representations to the Jury

    During voir dire, Plaintiff’s counsel told prospective jurors: “from the
very beginning in this case, when this case was filed, the plaintiff in this
case, Miss Schoeff, on behalf of her husband who’s passed, has accepted
partial responsibility, okay, in combination with the acts of the
defendants.” During opening statements, Plaintiff’s counsel stated: “Then
you’re going to decide what the percentage of responsibility for RJR – if
you find for us on the counts of negligence and strict liability, then we’re
going to apportion responsibility, what percentage of fault is Mr. Schoeff
responsible for and what percentage of fault is R.J. Reynolds responsible
for.” Likewise, Mr. Schoeff’s responsibility was a reoccurring theme in
Plaintiff’s closing — counsel referred to the fact that Mr. Schoeff bore
responsibility for his actions no less than ten times. However, at one point,
counsel did explain that although Plaintiff accepted some responsibility for
the negligence and strict liability claims, the intentional torts were “a
different ball game.” Finally, counsel argued that due to RJR’s lies and
deceptive marketing strategies, the jury should not find Mr. Schoeff
responsible at all for his decision to smoke until at least 1967, when the
first Surgeon General’s report on the harms of smoking came out. Counsel
equated this number to 40%. For the remaining 60% of Mr. Schoeff’s
smoking life, counsel urged the jury to find Mr. Schoeff 25% responsible,
averaging out to a total of 15% responsibility allocated to Mr. Schoeff and
85% to RJR.

      C. Jury Instructions

   Before retiring, the court instructed the jury as follows:

        If your verdict is for R.J. Reynolds on plaintiff’s negligence
     and product defect claims, then you will not consider the issue
     of comparative fault. If, however, your verdict is for plaintiff on
     her negligence or product defect claims, then you will consider
     the issue of comparative fault.

       In that event, you must determine and write on the verdict
     what percentage of fault James Schoeff’s death you find
     chargeable to R.J. Reynolds and to James Schoeff.

       Joan Schoeff, on behalf of the estate of James Schoeff, has
     admitted that, on the claims for negligence and defective

                                      9
     product, James Schoeff bears some percentage of fault and that
     his fault was a proximate cause, in combination with the acts
     of omission of defendants, of his smoking–related lung cancer
     and death.

In the instruction regarding the jury’s determination of compensatory
damages, the court informed the jury: “In determining the total amount
of any damages sustained by Joan Schoeff, you should not make any
reductions because of the responsibility of James Schoeff.”

    These facts share characteristics with both Sury (no waiver) and Hiott
(waiver). Like in Sury, Plaintiff’s complaint specifically stated that it was
seeking apportionment of fault for only its negligence claims and not its
intentional tort claims. Also like in Sury, the verdict form listed each cause
of action individually. However, these similarities do not compel the same
conclusion reached in Sury because, unlike in Sury and similar to Hiott,
Plaintiff’s counsel argued to the jury that the damages for Mr. Schoeff’s
terminal illness should be reduced by his portion of the fault and the jury
was instructed not to make any reductions based on Mr. Schoeff’s
comparative fault. Although Plaintiff’s counsel noted that Plaintiff was
accepting some responsibility for only her negligence claims and not her
intentional tort claims, counsel also argued that the jury should consider
this concession when coming up with its figure for comparative fault and
should find Mr. Schoeff less at fault due to RJR’s fraudulent concealment
of certain facts. Based on the overall theme of Plaintiff’s representations
to the jury, a reasonable jury would not possibly understand that its
comparative fault determination was going to have no effect whatsoever on
its compensatory damages award. See Philip Morris USA, Inc. v. Green, 40
Fla. L. Weekly D1809 (Fla. 5th DCA July 31, 2015) (rejecting tobacco
plaintiff’s argument that she did not waive her argument concerning the
intentional tort exception because counsel gave “explicit, tactical
directions encouraging the jury to find [plaintiff] partially at fault and to
determine what percentage of fault was to be shared by each of the
parties”).

    Under such circumstances, reversing would unfairly allow the Plaintiff
to “have it both ways.” It would be inequitable to allow Plaintiff to use “the
admission that [Mr. Schoeff] was partly at fault as a tactic to secure an
advantage with the jury throughout the trial” and then completely avoid
comparative fault after the verdict. Hiott, 129 So. 3d at 481; see also
Green, 40 Fla L. Weekly D1809. Accordingly, we hold that the trial court
did not abuse its discretion when it found that Plaintiff waived her
intentional tort exception argument.


                                     10
         b. Applicability of the Comparative Fault Intentional Tort
            Exception to this Suit

    Although we are affirming the trial court’s reduction of the
compensatory damages award by Mr. Schoeff’s comparative fault based on
its finding that Plaintiff waived her argument regarding the application of
the intentional tort exception, we also write to address the trial court’s
alternative finding that the intentional tort exception does not apply to
Plaintiff’s case.

   As outlined above, Florida’s comparative fault statute provides: “In
determining whether a case falls within the term ‘negligence cases,’ the
court shall look to the substance of the action and not the conclusory
terms used by the parties.” § 768.81(4)(a), Fla. Stat. The seminal case
addressing whether an action is founded in negligence or intentional tort
is Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997).
There, after being shot in the parking lot, a customer sued Wal-Mart and
the owner of the shopping center, alleging negligent failure to maintain
reasonable security. Id. at 561. The defendants sought to have the shooter
placed on the verdict form for purposes of assessing comparative fault and
the trial court refused. Id. On appeal, the supreme court affirmed this
ruling, concluding the substance of the action was “that [the Wal-Mart
customer] was the victim of an intentional tort.” Id. at 563. The court
noted that the statute did not say actions “including an intentional tort,”
rather it said “based upon an intentional tort.” Id. The court reasoned
that this implies “‘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.’” Id. (quoting Slawson v. Fast Food Enters., 671 So. 2d 255, 258
(Fla. 4th DCA 1996)).

   Merrill Crossings makes it clear that section 768.81 cannot be avoided
simply because the action includes an intentional tort — rather the “entire
action” must be “founded on an intentional tort.” Stated another way, the
entire action must have an intentional tort “at its core.”

   Considering the interplay between section 768.81 and an Engle progeny
suit alleging causes of actions for negligence and intentional tort, the Sury
court came to a decision in accord with the direction of Merrill Crossings.
118 So. 3d at 852. There, the trial court refused 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 in

                                     11
intentional tort. Id. The First DCA found “no abuse of discretion in the
trial court’s determination that although the plaintiff pled 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 the conclusion
that this action ‘actually had at its core an intentional tort by someone.’”
Id.

   Here, the trial court came to a different conclusion applying the same
“core” analysis outlined in Merrill Crossings. In its order on post-trial
motions, the court ruled that arguing Engle progeny suits are not founded
in negligence and thus are not subject to the comparative fault statute is
“to argue in the theater of the absurd.” It explained:

         An attorney sued ‘Big Tobacco’ in Engle and argued the
      defendants negligently designed cigarettes; manipulated the
      nicotine in cigarettes; produced advertisement and marketing
      strategies destined to mislead the public; and other non-
      intentional ‘tortuous’ misconduct, specifically sounded in
      negligence and product liability.

         Concurrent with the negligence and strict liability claims
      plaintiffs brought intentional tort claims for fraud and
      misrepresentation which have led to several juries awarding
      punitive damages on the intentional tort claims.

   We disagree with the Sury court to the extent it reviewed the trial court’s
“core” analysis under the abuse of discretion standard. Instead, we
“review de novo the legal question of whether certain conduct qualifies as
negligence or intentional tort.” Petit-Dos v. Sch. Bd. of Broward Cnty., 2
So. 3d 1022, 1024 (Fla. 4th DCA 2009). Applying the de novo standard,
we agree with the trial court and hold that at its core, Plaintiff’s suit is a
products liability suit based on conduct grounded in negligence.

   Affirmed in part, reversed in part and remanded.

MAY, J., concurs.
TAYLOR, J., concurs in part and dissents in part with opinion.

TAYLOR, J., concurring in part and dissenting in part.

   I concur in the majority’s decision affirming the trial court’s denial of
R.J. Reynolds’s motion for directed verdict and motion for new trial.
However, I respectfully disagree with the majority’s reversal of the trial

                                     12
court’s denial of the tobacco company’s motion for remittitur of punitive
damages. I also disagree with the majority’s affirmance, on cross-appeal,
of the trial court’s reduction of compensatory damages based on
comparative fault.

   The trial court did not abuse its discretion in denying R.J. Reynolds’s
motion for remittitur of the $30 million in punitive damages. The jury’s
award was properly based on the evidence presented and, as the trial court
determined, it was not excessive under Florida law or federal due process.
As our court has recognized in other Engle progeny cases, the purpose of
punitive damages is to punish a defendant’s past wrongful conduct and
deter future misconduct. Philip Morris USA Inc. v. Cohen, 102 So. 3d 11,
16 (Fla. 4th DCA 2012). Here, the record is replete with evidence of the
tobacco company’s continued attempts to discredit scientific research
revealing the potential harm caused by its products, its costly campaign
to mislead the public about the hazards of smoking, and its manipulation
of nicotine levels in cigarettes to make them even more addictive. See
Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, 79-83 (Fla. 3d DCA 2013)
(reviewing a similar record and finding that the evidence supported an
award of $25 million punitive damages against Lorillard).

    Although the trial court was puzzled by the fact that the jury awarded
the plaintiff more than the $25 million requested by plaintiff’s counsel, the
court expressly found that the jury’s award “was not infected by bias,
prejudice, passion or any other sentiment.” Further, we have long held
“that a jury might properly award damages equal to or in excess of those
requested by counsel in closing argument.” Lopez v. Cohen, 406 So. 2d
1253, 1256 (Fla. 4th DCA 1981). No doubt plaintiff’s counsel asked the
jury not to award more than $25 million because this amount has been
affirmed by Florida courts and is thus considered “safe” from reversal on
a claim of excessiveness. But there was nothing illogical about the jury’s
decision to punish the tobacco company in an amount greater than that
argued by plaintiff’s counsel. The trial court’s statement suggesting that
there was no reason for the jury to exceed the award sought by plaintiff’s
counsel was inconsistent with our precedent in Lopez and does not
somehow compel a remittitur.

   Likewise, the mere fact that $25 million is the highest award approved
thus far on appeal does not mean that it should forever remain a cap. The
$30 million punitive damages award in this case is only 20% higher than
$25 million and falls within a reasonable range of damages. Furthermore,
the 2.9 to 1 ratio of punitive damages to compensatory damages ($10.5
million) is lower than that already approved by other Florida courts. See
R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1071-72 (Fla. 1st

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DCA 2010) (approving a 7.58 to 1 ratio); Owens-Corning Fiberglas v.
Ballard, 749 So. 2d 483 (Fla. 1999) (upholding punitive damages award in
an asbestos insulation case that was nearly 18 times the compensatory
damages award). Notably, there are no Engle progeny cases suggesting
that a $30 million punitive damages award is excessive. In light of the
historical use of treble damages as a punitive remedy, I cannot conclude
that the 2.9 to 1 ratio in this case is excessive. The $30 million punitive
damages award was within constitutional limits, was supported by the
evidence, and was an amount that could be adduced in a logical manner
by reasonable persons. I would affirm the trial court’s denial of R.J.
Reynolds’s motion for remittitur of the punitive damages award.

   I would reverse, however, the trial court’s reduction of the plaintiff’s
compensatory damages based on the decedent’s comparative fault. Our
comparative fault statute provides an exception for intentional tort claims,
and although a products liability claim was included in the complaint, this
lawsuit, when viewed in its entirely, essentially alleges intentional
misconduct by the tobacco company. As the First District found in R.J.
Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), the
“core” of Engle progeny cases is intentional misconduct. The gravamen of
the charge is that the tobacco company intentionally designed its products
in a defective manner and pursued a callous and intentional course of
tortious conduct by fraudulent concealment. I therefore disagree with the
majority’s conclusion that this lawsuit is based on conduct grounded in
negligence. But like the majority, I would use a de novo standard, instead
of an abuse of discretion standard, in reviewing the trial court’s “core”
determination and find that the “core” of Engle progeny actions is
intentional misconduct as a matter of law.

   Moreover, on the waiver issue, the record does not support the trial
court’s finding that the plaintiff waived the intentional tort exception to the
comparative fault statute. The facts in this case are more like those in
Sury, where the First District found no waiver. Here, the plaintiff made it
clear in her complaint and in both opening statement and closing
argument to the jury that her admission that the decedent bore some
responsibility applied only to the negligence and strict liability claims and
not to the intentional tort claims. Further, the trial court told the jury at
the beginning of the trial that the plaintiff sought apportionment only as
to the negligence and strict liability claims and not as to the intentional
tort claims, and later instructed the jury that the plaintiff “admitted that
on the claims for negligence and defective product, [the decedent] bears
some percentage of fault and that his fault was a proximate cause, in
combination with the acts of omission of the defendants, of his smoking-
related lung cancer and death.” The trial court also instructed the jury

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not to make any reductions in the amount of damages based on the
decedent’s fault, but gave no indication that it would reduce the damage
award by comparative fault. In addition, to avoid a claim of waiver, the
plaintiff had the trial court change the order of questions on the verdict
form so comparative fault came before the intentional tort liability
questions. In sum, the record does not show that plaintiff did anything to
invite the court to apply comparative fault to her intentional tort claims.

  For the above reasons, I would reverse the trial court’s post-trial order
on comparative fault and remand for entry of an amended judgment
awarding plaintiff the full compensatory damages found by the jury. I
would affirm in all other respects.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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