           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                   FOURTH DISTRICT

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

                                           v.

      STANLEY MARTIN, as Personal Representative of the ESTATE OF
                         CAROLE MARTIN,
                              Appellee.

                                    No. 4D17-574

                               [ December 12, 2018 ]


                              CORRECTED OPINION

   Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John Joseph Murphy, Judge; L.T. Case
No. 2007CV03644 (19).

  William L. Durham II and Val Leppart of King & Spalding LLP, Atlanta,
GA, for appellant R.J. Reynolds Tobacco Co.

    Scott A. Shesin and Michael Rayfield of Mayer Brown LLP, New York,
NY, and Joseph H. Lang, Jr. of Carlton Fields Jorden Burt, P.A., Tampa,
for appellant Philip Morris USA Inc.

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

ARTAU, EDWARD L., Associate Judge.

   In this Engle 1 wrongful death case, the defendants, Philip Morris and
R.J. Reynolds, appeal a final judgment awarding the plaintiff just under
$3.7 million in compensatory damages (the $5.4 million assessed by the
jury, less a 32% comparative fault reduction), and $650,000 in punitive
damages. The plaintiff cross-appeals the trial court’s reduction of the


1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006).
compensatory damages award based on the decedent’s comparative fault.

   On the main appeal, we hold that, because the specific tobacco-related
disease that caused the Engle class member’s death and gave rise to this
claim manifested after October 1, 1999, the trial court erred by declining
to apply the post-1999 version of section 768.73, Florida Statutes, which
bars successive awards of punitive damages under the circumstances
here. We therefore reverse the trial court’s ruling on that issue, but affirm
on all other issues raised in the main appeal.

   On the cross-appeal, we reverse and remand for reinstatement of the
entire amount of compensatory damages found by the jury.

   Factual Background

   The plaintiff and his late wife, Carole Martin, moved to Florida in 1992,
but split their time between New York and Florida.

   Mrs. Martin suffered a smoking-related heart attack in 1995. She later
developed lung cancer in 2003, and ultimately died of the cancer in 2004.

   In 2007, the plaintiff brought this Engle wrongful death lawsuit against
the defendants, asserting claims of strict liability, negligence, fraud by
concealment, and conspiracy to commit fraud by concealment. The trial
court granted the plaintiff leave to amend his complaint to add claims for
punitive damages.

   Before trial, the defendants sought to invoke the current version of
section 768.73(2)(a), Florida Statutes, which generally bars successive
punitive damages awards against a defendant “in any action alleging harm
from the same act or single course of conduct.” The defendants argued
that section 768.73(2)(a) barred a punitive damages award because: (1) the
plaintiff’s claim arose after the October 1, 1999 effective date of the statute;
and (2) each defendant had already paid over $150 million in punitive
damages in tobacco lawsuits based on the same conduct. The trial court
deferred ruling on this issue until after trial.

   At the conclusion of the trial, the jury found that Mrs. Martin was “a
legal citizen and resident of Florida on or before November 21, 1996,”
found in favor of the plaintiff on each claim, determined that Mrs. Martin
was 32% at fault, found that the plaintiff had suffered approximately $5.4
million in compensatory damages, assessed $450,000 in punitive damages
against Philip Morris, and assessed $200,000 in punitive damages against
R.J. Reynolds.

                                       2
   In post-trial motions, the defendants argued that the plaintiff’s claim
for punitive damages was barred by the current version of section
768.73(2)(a). The trial court denied the defendants’ post-trial motions.

   The trial court entered final judgment in favor of the plaintiff, but
reduced the compensatory damages award to just under $3.7 million to
account for the jury’s comparative fault determination. This appeal and
cross-appeal ensued.

   Main Appeal

   We first address the defendants’ argument that the trial court erred by
refusing to apply the post-1999 version of section 768.73. The defendants
contend that the post-1999 version of the statute applies because the
plaintiff’s cause of action arose after 1999. Specifically, the defendants
contend that the plaintiff’s wrongful death cause of action arose when Mrs.
Martin died in 2004. Alternatively, the defendants contend that even if the
plaintiff’s cause of action arose when Mrs. Martin developed lung cancer
in 2003, the post-1999 statute would still apply.

   The plaintiff argues in response that the post-1999 statute does not
apply here, because (1) the wrongful death action relates back to the 1994
Engle class action complaint, and (2) the date of the applicable statutory
law necessarily had to be before the November 1996 Engle class
membership cut-off date. Additionally, the plaintiff argues that the post-
1999 statute’s limitation on successive punitive damages awards is
unconstitutional.

   A trial court’s ruling on an issue of statutory interpretation is subject
to de novo review. Headley v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017).

    Section 768.73(2)(a), Florida Statutes, as amended in 1999, provides
that “punitive damages may not be awarded against a defendant in a civil
action if that defendant establishes, before trial, that punitive damages
have previously been awarded against that defendant . . . in any action
alleging harm from the same act or single course of conduct for which the
claimant seeks compensatory damages.” § 768.73(2)(a), Fla. Stat. (1999).

   The amended version of section 768.73 applies “to all causes of action
arising after the effective date of [the] act,” which was October 1, 1999. §
768.73(5), Fla. Stat. (1999); Ch. 99-225, § 23, Laws of Fla. Before the 1999
amendment, section 768.73 had no such bar on successive awards of
punitive damages.

                                     3
   The question for this court, therefore, is whether the plaintiff’s cause of
action arose after October 1, 1999.

   In civil cases, the applicable version of a statute is ordinarily the one
“in effect when the cause of action arose.” D’Angelo v. Fitzmaurice, 863
So. 2d 311, 314 n.9 (Fla. 2003).

   This court has previously concluded that “Florida law does not
distinguish between when a cause of action accrues and when a cause of
action arises.” See Lumbermens Mut. Cas. Co. v. August, 509 So. 2d 352,
353 (Fla. 4th DCA 1987), quashed, 530 So. 2d 293 (Fla. 1988). 2 Moreover,
Black’s Law Dictionary defines the term “accrue” as meaning “[t]o come
into existence as an enforceable claim or right; to arise.” Accrue, BLACK’S
LAW DICTIONARY (10th ed. 2014). We quote these sources to emphasize that
the terms “accrue” and “arise” are synonymous with respect to when a
cause of action comes into existence, and we will be using those terms
interchangeably in this opinion.

   As a general proposition, “[a] cause of action for wrongful death accrues
on the date of [the] decedent’s death.” Nationwide Mut. Fire Ins. Co. v.
MacDonald, 645 So. 2d 1057, 1058 (Fla. 4th DCA 1994). However, in Engle
wrongful death cases, this court has looked to the time when the injury
causing the smoker’s death manifested in determining which version of
section 768.73 applied. R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d
487, 492 (Fla. 4th DCA 2015) (“Plaintiff’s cause of action accrued in 1994,
when Mr. Schoeff was diagnosed with lung cancer. As such, the 1994
version of the statute governs.”) (citation omitted), quashed on other
grounds, 232 So. 3d 294 (Fla. 2017); R.J. Reynolds Tobacco Co. v.
Buonomo, 138 So. 3d 1049, 1052 (Fla. 4th DCA 2013) (holding that the
1995 version of section 768.73 applied in an Engle wrongful death case
where the smoker began suffering from COPD in 1995, which caused his
death in 2008: “It is . . . the 1995 version of the statute that governs the
instant case—a fact the parties do not dispute.”), quashed on other


2  While it is true that the Florida Supreme Court quashed this court’s
Lumbermens decision, the Florida Supreme Court’s opinion did not appear to
turn on any distinction between the terms “accrue” and “arise.” See Lumbermens
Mut. Cas. Co. v. August, 530 So. 2d 293 (Fla. 1988). Instead, the Florida Supreme
Court applied the rule of lex loci contractus, and held that a cause of action for
uninsured motorist benefits arose in Massachusetts, where the insurance policy
was executed, rather than in Florida, where the automobile accident occurred.
Id. at 294–96. Thus, the real issue in Lumbermens was where the cause of action
arose, not when it arose.

                                        4
grounds, Nos. SC14-81 & SC14-83, 41 Fla. L. Weekly S113, 2016 WL
374082 (Fla. Jan. 26, 2016).

   Similarly, in R.J. Reynolds Tobacco Co. v. Allen, 228 So. 3d 684, 689
(Fla. 1st DCA 2017), the First District reasoned that, although a cause of
action for wrongful death usually accrues upon the decedent’s death,
“Engle-progeny cases are different.” The Allen court held that the pre-1999
version of section 768.73 applied to an Engle progeny personal injury suit
that converted to a wrongful death action after the smoker died. Id. at
689–91.

   In Allen, the smoker’s COPD manifested before the November 21, 1996
Engle class cut-off date, the smoker’s personal injury suit was commenced
in 2007, and the smoker’s suit was converted into a wrongful death action
after she died in 2009. Id. at 689–90. In rejecting the defendants’
argument that the post-1999 version of the statute applied, the First
District reasoned that: “[a]fter her causes of action accrued, Mrs. Allen had
a substantive right to seek punitive damages under the then-existing
standard. Application of the post–1999 amendments to the punitive
damages statute to Appellee’s derivative claim would impair those
substantive rights.” Id. at 690 (emphasis added) (citation omitted).

    In R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA
2017), the Second District extended Allen and held that the pre-1999
version of section 768.73 applied to an Engle progeny suit that was initially
brought as a wrongful death action after the smoker died of lung cancer
in 2007. The Second District reasoned that the plaintiff’s “wrongful death
action, like all Engle-progeny complaints, relates back to the 1994 Engle
class-action complaint.” Id. at 462. Thus, the Second District concluded
that “[w]hile [the plaintiff] did not file the wrongful death action until 2007
when [the smoker] died, her right to do so was based on [the smoker’s]
status as an Engle class member, i.e., [the smoker’s] manifestation of a
tobacco-related disease or medical condition prior to November 21, 1996.”
Id. at 463.

   Notably, the wrongful death causes of action in both Allen and Evers
related back to a manifestation of a tobacco-related disease which arose
prior to the 1999 amendment to the punitive damages statute. In other
words, the claimants in those cases succumbed to the manifestation of the
very disease that had already plagued them prior to the 1999 amendment.
Those claimants could have brought their claims prior to the 1999
amendment as personal injury actions. Upon death from the same
disease, their estates could have amended the pleadings, converting their
claims into wrongful death actions. It is of no consequence that the

                                      5
lawsuits had not been filed prior to the 1999 amendment, as the relevant
inquiry is when did the claims arise or accrue.

   Recently, this court agreed “with the First and Second District Courts
of Appeal in holding that the pre-1999 version of section 768.73, Florida
Statutes, applies in an Engle progeny personal injury suit that is converted
into a wrongful death action upon the smoker’s death.” R.J. Reynolds
Tobacco Co. v. Konzelman, No. 4D16–4310, 43 Fla. L. Weekly D1037, 2018
WL 2126722 (Fla. 4th DCA May 9, 2018) (citing Allen and Evers).

    The holding in Konzelman was, however, limited to the facts before us.
Specifically, we agreed with the plaintiff’s argument that the 1999
amendment to section 768.73 did not apply to an Engle class member’s
personal injury claim that accrued before the effective date of the statute,
even if the claim was later converted to a wrongful death action after the
effective date of the statute. While we agreed with Allen and Evers as
applied to the facts before us, our decision also relied upon Buonomo, 138
So. 3d at 1052, a case which looked to the time of the manifestation of the
illness causing the smoker’s death in determining that the pre-1999
statute applied.

   Konzelman was also consistent with the principle that an injured
party’s right to seek punitive damages survives the merger or amendment
of a personal injury survivor claim into a new wrongful death claim upon
the injured party’s death. See Martin v. United Sec. Servs., Inc., 314 So. 2d
765, 771–72 (Fla. 1975) (allowing for punitive damages upon merger of
personal injury survival action into wrongful death action).

   In effect, Konzelman agreed with Allen and Evers to the extent that they
recognized an exception to the general rule that a wrongful death claim
accrues or arises upon the injured party’s death, preserving an Engle class
member’s vested rights where the class member eventually dies of a
tobacco-related illness that manifested before the 1999 amendment to
section 768.73. In other words, the accrual date of an Engle class
member’s personal injury survivor claim effectively carries over to a
merged or amended wrongful death claim upon death for purposes of
determining when a cause of action arises.

   However, all Engle wrongful death actions do not necessarily arise
before the 1999 amendment to section 768.73, on the theory that they all
relate back to the 1994 Engle class action complaint. We cannot agree
with the sweeping proposition that all applicable statutory law in an Engle
progeny case is necessarily frozen in place as of the time of the original
1994 Engle class action complaint.

                                     6
    Turning to the facts of this case and the plain text of the current version
of section 768.73, we find that the plaintiff’s wrongful death cause of action
arose after October 1, 1999. This court has held that when a smoker
suffers from more than one smoking-related disease, a cause of action for
each distinct disease accrues separately. See Philip Morris USA, Inc. v.
Barbanell, 100 So. 3d 152, 158–60 (Fla. 4th DCA 2012) (action against
cigarette manufacturer relating to smoker’s death from lung cancer
accrued, and limitations period began to run, when smoker knew or
should have known that smoker had tobacco-related lung cancer; not
when she earlier knew of a separate and distinct tobacco-related disease).

   Under the circumstances here, we can think of no compelling legal
reason why the trial court should have applied the pre-1999 punitive
damages statute to a separate and distinct claim that did not accrue earlier
than 2003. Although Barbanell was determining when a tobacco-related
claim accrued or arose for statute of limitations purposes, we see no
distinction in applying the same reasoning to when a claim accrued or
arose for purposes of the punitive damages statute. After all, the
Legislature intentionally avoided any impairment of vested rights by
clarifying that its 1999 amendment to the punitive damages statute would
apply only to those claims “arising after the effective date of [the] act,”
which was October 1, 1999. § 768.73(5), Fla. Stat. (1999); Ch. 99-225, §
23, Laws of Fla. If a claim cannot be said to have arisen or accrued for
statute of limitations purposes, it is axiomatic that no vested rights have
arisen to prevent the Legislature from limiting punitive damages as to that
unripe claim.

   Moreover, manifestation of a tobacco-related disease for purposes of
establishing Engle class membership is a completely separate issue from
the date a cause of action accrues or arises. See R.J. Reynolds Tobacco
Co. v. Ciccone, 190 So. 3d 1028, 1039 (Fla. 2016) (“Simply put, the policy
undergirding the ‘manifestation’ of an injury for the accrual of a cause of
action is not the same as the policy rationale for the ‘manifestation’
requirement to establish Engle class membership. Accrual is simply not
the relevant inquiry for determining Engle class membership.”).

   Here, the relevant facts are simple. Mrs. Martin qualified for Engle class
membership based on her smoking-related heart disease that manifested
in 1995, but she died from lung cancer that manifested in 2003.
Accordingly, we find that the plaintiff’s wrongful death cause of action
arose no earlier than 2003, which was when Mrs. Martin developed lung
cancer. We emphasize that, as of October 1, 1999, Mrs. Martin had no
vested right to bring a claim for punitive damages under the pre-1999

                                      7
statute arising from the harm caused by her lung cancer that manifested
in 2003. Thus, because the smoking-related illness causing Mrs. Martin’s
death did not develop until after the 1999 amendment to section 768.73,
we find that the post-1999 version of section 768.73 applies to this case.

   The plaintiff suggests that even if the post-1999 version of the statute
applies to this case, it is unconstitutional. However, the plaintiff’s
constitutional challenge to the current version of section 768.73 is not
properly before us because the plaintiff did not notice the Attorney General
or the State Attorney as required by Florida Rule of Civil Procedure 1.071
when challenging the constitutionality of a state statute.

    Therefore, applying the current version of section 768.73 to this case,
we find that section 768.73(2)(a) bars a punitive damages award to the
plaintiff because the defendants established before trial that punitive
damages had previously been awarded against them in other actions
“alleging harm from the same act or single course of conduct for which the
claimant seeks compensatory damages.” 3

    Cross-Appeal

    On 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. The
trial court, of course, was simply following the law as we understood it to
be correct in this district prior to Schoeff v. R.J. Reynolds Tobacco Co., 232
So. 3d 294 (Fla. 2017). See R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.
3d at 495–96 (interpreting section 768.81 to require apportionment of
comparative fault in a tobacco case because at its core it is a product
liability action, and concluding “that section 768.81 cannot be avoided
simply because the action includes an intentional tort”). The Florida
Supreme Court disagreed. Therefore, we are bound by the Florida
Supreme Court’s precedent in Schoeff to reverse and remand.



3 Furthermore, the exception in (2)(b) does not apply because the trial court did
not make specific findings of fact that the amount of prior punitive damages
awarded was insufficient to punish the defendants. And even if the exception in
(2)(b) did apply, the plaintiff still could not recover punitive damages because
“[a]ny subsequent punitive damage awards must be reduced by the amount of
any earlier punitive damage awards rendered in state or federal court.” §
768.73(2)(b), Fla. Stat. (1999). Undoubtedly, the prior punitive damages awards
against the defendants would easily exhaust the plaintiff’s $650,000 punitive
damages award.

                                       8
    The dissent urges us to adopt the remedy employed by the Fifth District
in Foreline Security Corp. v. Scott, 871 So. 2d 906, 911 (Fla. 5th DCA 2004),
where the Fifth District held that a trial court erred when it ignored the
jury’s allocation of fault and determined post-verdict that the defendant
was solely responsible for the full amount of the plaintiff’s damages. The
Fifth District concluded that the trial court erred by not applying the
comparative negligence statute when it misled the jury into believing that
it was allocating fault between the defendant and a nonparty, reasoning
that “[t]he jury may have reached a different verdict on damages had it
known that [the defendant] would bear the entire amount.” Id. Based on
the comparative fault issue, as well as a separate error in failing to instruct
the jury on a liability defense, the Fifth District remanded the case for a
new trial. Id.

    The reasoning of Foreline thus suggests that, absent any other errors
at trial, the proper remedy upon setting aside a jury’s comparative fault
allocation would be a new trial on damages. But we cannot find, nor does
the Fifth District cite to, any statutory or other applicable legal basis for
the remedy of requiring a new trial on damages when reversing or entering
a directed verdict on a comparative fault defense after trial.

    Indeed, it is well established that a reversal based on a comparative
fault error does not affect or require a new trial on a jury’s determination
of compensatory damages. E.g., Nash v. Wells Fargo Guard Servs., Inc.,
678 So. 2d 1262 (Fla. 1996). Instead, such an error simply requires a
remand for apportionment of fault. See id. at 1263–64 (limiting remand to
liability and apportionment of fault, and holding that “a reversal
precipitated by Fabre 4 errors does not affect the determination of damages.
As a consequence, the reversal in this case should not have extended to a
new trial on damages.”); see also Regions Bank v. Capital Square, Inc., 83
So. 3d 900, 902–03 (Fla. 3d DCA 2012) (concluding that “a reversal
precipitated by Fabre errors does not affect the determination of damages
and should not require a new trial on damages,” and remanding for “a new
trial solely on the issue of apportionment between the parties”); Schindler
Elevator Corp. v. Viera, 693 So. 2d 1106, 1108 (Fla. 3d DCA 1997) (holding
that a comparative negligence error in erroneously omitting a nonparty
from the verdict form required “a new trial limited to the apportionment
issue, not a new trial on all liability issues”); Am. Aerial Lift, Inc. v. Perez,
629 So. 2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required “on

4 Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993) (if defendant proves the fault
of a nonparty on a comparative negligence affirmative defense, the jury may be
asked to apportion the percentage of fault to the nonparty on the jury verdict
form).

                                        9
grounds unrelated to the damages issue,” including a comparative
negligence error in omitting Fabre defendants from the verdict form, the
new trial would be “confined to issues of the liability of the defendant and
of the other entities allegedly responsible for the condition of the defective
equipment”); Schindler Corp. v. Ross, 625 So. 2d 94, 95–97 (Fla. 3d DCA
1993) (holding that a comparative negligence error required a retrial to
determine the percentage of fault, but since neither that error nor a
separate jury instruction error on a liability issue affected the jury’s
determination of damages, the retrial would be “confined to the issues of
negligence, comparative negligence and the apportionment of fault, if any,
as to the plaintiffs, the defendant, and Dade County”).

   Although the dissent asserts that the remand in these cases would have
no impact on the amount of damages ultimately awarded, any remand to
apportion liability between the parties and any Fabre defendants would
have a net impact on the ultimate amount awarded without changing the
gross amount of damages awarded by a prior jury. In those cases, the
gross amount of damages awarded by a prior jury did not change despite
comparative fault errors impacting the net amount of damages.

   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. See, e.g., Carter v. Brown &
Williamson Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000) (“Absent a
finding to the contrary, juries are presumed to follow the instructions given
them.”); Sutton v. State, 718 So. 2d 215, 216 n.1 (Fla. 1st DCA 1998) (“The
law presumes that the jury followed the trial judge’s instructions in the
absence of evidence to the contrary.”); see also Johnson v. State, 164 So.
3d 794, 797 (Fla. 1st DCA 2015) (verdict was not defective on the basis
that the jury found defendant guilty of both the main offense and the
lesser-included offense; the jury’s separate finding of guilt on the lesser-
included offense was deemed surplusage, and did not require mistrial, as
the jury is presumed to follow court’s instructions separately as to each
charge).


                                     10
    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.

    Were we to ignore this well-established presumption in response to the
defendants’ perceived claim of unfairness from the post-verdict elimination
of a comparative negligence defense they believed they could assert before
the Florida Supreme Court’s ruling in Schoeff, we would be imposing “will”
instead of “judgment.” 5 This we cannot do.

   Accordingly, we are left with no alternative but to reverse and remand
“with instructions for the trial court to award compensatory damages in
the full amount of the jury’s verdict.” See Philip Morris USA Inc. v. Gore,
238 So. 3d 828, 831 (Fla. 4th DCA 2018) (reversing to comply with
Schoeff’s elimination of the comparative negligence defense under similar
circumstances).

    Conclusion

    On the main appeal, we reverse and remand with instructions for the
trial court to vacate the punitive damages awards, but affirm on all other
issues. On the cross-appeal, we reverse and remand with instructions for
the trial court to reinstate the entire amount of the jury’s verdict on
compensatory damages.

    Affirmed in part, Reversed in part, and Remanded.

LEVINE, J., concurs.
FORST, J., concurs in part and dissents in part with opinion.

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

   I concur in the majority opinion in regard to the main appeal. I
respectfully dissent concerning the disposition of the cross-appeal.

5 THE FEDERALIST NO. 78 (Alexander Hamilton) (“The judiciary . . . may truly be
said to have neither force nor will but merely judgment.”) (capitalizations altered).

                                         11
Although I join the panel in reversal of the compensatory damage award,
per Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017), I
would hold that the appropriate remedy is to remand for a new trial limited
to a determination of the amount of compensatory damages to be awarded
to the plaintiff.

   The issue of compensatory damages went to the jury in the instant case
during the brief period in which Schoeff v. R.J. Reynolds Tobacco Co., 178
So. 3d 487 (Fla. 4th DCA 2015) was the law of this District. In that
opinion, we held that the compensatory damages awarded to an Engle-
progeny plaintiff could be reduced by the amount of comparative fault
attributed to the plaintiff, concluding that an Engle-progeny suit “is a
products liability suit based on conduct grounded in negligence.” Id. at
496. Accordingly, the trial court in the instant case instructed the jury
that its compensatory damages award would be reduced by the
“percentage of responsibility” which the jury determined “was caused by
Carole Martin.” This was the proper course of action to take during the
time period between our opinion in Schoeff and the Florida Supreme
Court’s opinion that determined our analysis was erroneous and that
compensatory damages could not be reduced in this manner in Engle-
progeny cases.

    After receiving the above-noted jury instructions regarding
compensatory damages, the jury determined those damages to be
approximately $5.4 million. It also found Mrs. Martin to have been 32%
at fault. The defendant argues that the award of $5.4 million was “tainted”
by the jury instruction, “because there is a substantial likelihood that the
jury would have reached a different verdict had it been properly instructed
about the role of its comparative fault allocation.”

    The defendants rely upon Foreline Security Corp. v. Scott, 871 So. 2d
906 (Fla. 5th DCA 2004) for their argument that a new trial on damages is
appropriate. In that case, the jury found Foreline to be 50% liable after
having been informed by the trial court that ‘“[t]he court in entering
judgment will take into account your allocation of fault.’” Id. at 911
(alteration in original). The trial court subsequently “ignored the allocation
of fault determined by the jury” and found Foreline to be 100% percent
liable for the damages. Id. Because the jury was “misled” into believing
that its allocation of fault would be taken into account by the trial court
in awarding damages, the Fifth District remanded this issue, concluding
“[t]he jury may have reached a different verdict on damages had it known
that Foreline would bear the entire amount.” Id.

   Although I would not go so far as the defendants’ brief and argue there

                                     12
is a “substantial likelihood” that the jury would have brought back a lower
damages award if it knew that its award would not be reduced, I similarly
cannot conclude that there is “no reasonable possibility” that the verdict
would not have been affected. See Special v. West Boca Med. Ctr., 160 So.
3d 1251, 1253 (Fla. 2015). As in Foreline, the jury here “may have reached
a different verdict on damages” had it known the defendants would bear
the full amount of the damages and that the compensatory damage award
would not be reduced to reflect the plaintiff’s comparative fault.

   The cases cited by the majority opinion are distinguishable with respect
to the situation in the instant case. In all five cases, the trial court
apportioned one hundred percent of the damages to either one defendant
or, per a finding of comparative negligence, to one defendant and the
plaintiff. See Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262,
1263-64 (Fla. 1996); Regions Bank v. Capitol Square, Inc., 93 So. 3d 900,
902 (Fla. 3d DCA 2012); Schindler Elevator Corp. v. Viera, 693 So. 2d 1106,
1108 (Fla. 3d DCA 1997); Am. Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172
(Fla. 3d DCA 1993); Schindler Corp. v. Ross, 625 So. 2d 94, 95–97 (Fla. 3d
DCA 1993). As in the instant case, a change in the law attributable to a
Florida Supreme Court decision necessitated a reversal at the appellate
level. The courts remanded these cases back to the jury to apportion fault.
The court’s remand in each of these cases would have no impact on the
amount of the damages ultimately awarded to the plaintiff, as
distinguished from the instant case.

    The plaintiff here vehemently opposes remand of this issue for a new
trial, arguing that the defendants invited the erroneous jury instruction.
However, it is more appropriate to conclude that our Schoeff opinion
invited, if not dictated, the (now-deemed) erroneous instruction, and the
defendants (and the trial court) were merely following the law of this
District with respect to the comparative fault jury instructions.
Accordingly, I would remand the determination of the amount of
compensatory damages for a limited hearing on that issue. Thus, I dissent
in part from the majority opinion. I otherwise fully concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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