James Smith, Sr. v. R.J. Reynolds Tobacco Company ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14316
________________________
D.C. Docket No. 3:09-cv-10048-WGY-JBT
JAMES SMITH, SR.,
Plaintiff-Appellee,
versus
R.J. REYNOLDS TOBACCO COMPANY, et al.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 25, 2018)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
JULIE CARNES:
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This is an Engle progeny case 1 brought by plaintiff James Smith, Sr. against
defendant R.J. Reynolds Tobacco Co. (“Defendant”) to recover damages based on
the death of his wife, Wanette Smith, from tobacco-related diseases caused by Mrs.
Smith’s decades-long history of smoking Defendant’s cigarettes. We face only
one issue: 2 whether the district court should have reduced the jury’s compensatory
damages award based on the degree of fault the jury attributed to Mrs. Smith.
I. Issues in This Appeal
In his wrongful death action, Smith asserted both intentional tort claims
(fraudulent concealment and conspiracy to fraudulently conceal) and “non-
intentional” tort claims (negligence and strict liability). In a negligence action in
which both parties have acted negligently, Florida law requires that the plaintiff’s
1
“Engle progeny” cases arise from a Florida class action filed in 1994 against major tobacco
companies, including Defendant, alleging that members of the class “were unable to stop
smoking because they were addicted to nicotine and, as a result, developed medical problems
ranging from cancer and heart disease to colds and sore throats.” Liggett Grp. Inc. v. Engle, 853
So. 2d 434, 440 (Fla. 3d DCA 2003), approved in part and quashed in part by Engle v. Liggett
Grp., Inc., 945 So. 2d 1246, 1263 (Fla. 2006). The extensive history of this litigation need not be
recited in detail here, as it is not pertinent to the only issue requiring our attention. What matters
for this case is that the Florida Supreme Court dissolved the class after the original jury made
certain findings about tobacco and the defendants’ conduct, granted those findings preclusive
effect, and ordered that qualifying class members pursue their suits against the defendants in
individual, “progeny” actions. Engle, 945 So. 2d at 1276–77; see also Philip Morris USA, Inc. v.
Douglas, 110 So. 3d 419, 436 (Fla. 2013) (same). This is one of those progeny cases.
2
In a short discussion in its opening brief, Defendant acknowledged that a due process
challenge to use of the Engle findings in progeny case trials could not succeed, given this Court’s
decision in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), but Defendant
nonetheless indicated it wished to “preserve that argument.” Since briefing in this case, our
Court has reexamined Walker. See Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th
Cir. 2017) (en banc). Defendant has not pursued a due process challenge in this case in the
aftermath of Graham nor further addressed the issue. Neither do we.
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damages be reduced proportionately to the plaintiff’s own fault in causing his
injuries. By its own terms, however, the Florida statute requiring such reduction is
not applicable to an action based on an intentional tort.
The jury found for Smith on all claims—including the intentional tort
claims—awarding him $600,000 in compensatory damages and $20,000 in
punitive damages. Responding to the court’s instruction that required it to gauge
the degree of responsibility Mrs. Smith bore for her injuries, the jury assessed Mrs.
Smith with 45% of the fault, laying the remaining 55% of blame on Defendant.
Defendant argued that, given this jury finding, the compensatory damages should
be reduced by 45%, resulting in a compensatory damages award of $330,000. The
district court, however, agreed with Smith that because there were intentional tort
claims on which Smith prevailed, Defendant was not entitled to a reduction of the
compensatory damages award. Defendant contends that the district court
misapplied Florida law.
Second, even if Florida’s comparative negligence statute disallows a
reduction of the jury’s compensatory damages figure based on Smith’s
comparative fault, Defendant contends that Smith nonetheless forfeited his ability
to insist on adherence to Florida law because Smith suggested to the jury that any
award they made would be reduced based on his wife’s own negligence.
Defendant says that besides misleading the jury, Smith’s insistence that his wife’s
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own fault should be something the jury considered in arriving at a decision on
damages permitted Smith to bolster his own position and gain favor with the jury,
notwithstanding his actual position before the court that there could be no
reduction of damages if the jury found Defendant liable on the intentional tort
claims. Moreover, Defendant complains, the district court instructed the jury that
it would reduce the award based on the jury’s finding of any fault on Mrs. Smith’s
part, but then reversed course after the verdict and ignored its own instruction. In
essence, Defendant argues that, combined with Smith’s disingenuous argument,
the court’s instruction likely impacted the jury’s calculation of the compensatory
damages award. Defendant contends that the court should have kept its word and
reduced the damages award, as it told the jury it would do.
As to Defendant’s first argument, the Florida Supreme Court has recently
resolved an intermediate appellate court split and ruled Smith’s way: when a
complaint in an Engle case contains both negligence and intentional tort claims, a
plaintiff’s success on an intentional tort claim—no matter whether the action in its
entirety could arguably be characterized as a negligence action—defeats a
defendant’s claim to reduction of a compensatory damages award based on the
plaintiff’s degree of fault.
As to the district court’s misleading instruction to the jury, that instruction
was in fact incorrect. But because it was Defendant who requested this
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instruction—not Smith, who requested an instruction that would have more
accurately explained to the jury the possibility that its proportional assessment
might have no effect on the damages award—Defendant cannot now complain.
And as to Smith’s concession to the jury that it should consider Mrs. Smith’s own
fault and attribute an appropriate percentage of responsibility to her—which also
happened to be Defendant’s argument—we conclude that Smith’s argument was
consistent with the very instruction that Defendant had requested. We find no
waiver by Smith. Accordingly, we affirm the district court’s decision not to reduce
the compensatory damages award. We explain.
II. Trial Proceedings Giving Rise to the Alleged Error
Per his complaint, Smith envisioned that comparative negligence by his
deceased wife would be an appropriate matter for the jury to determine. Although
the parties do not focus on the evidence at trial on this subject, it is clear from a
review of the closing arguments that evidence was elicited concerning Mrs.
Smith’s own responsibility for her injuries. What is important in understanding the
present issues is the position each party took as to the appropriate instructions to
give the jury on this matter.
The first thing worth noting is that neither party requested the instructions
one might expect if one assumes that a plaintiff typically seeks to obtain the
highest possible award for compensatory damages from the jury and that a
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defendant aims for the lowest award. That is, underlying Defendant’s arguments
here is the fear that, in trying to decide something as subjective as the monetary
value of a given person’s life, if a jury is told that the monetary value it sets will be
reduced by whatever percentage of responsibility it assigns to the plaintiff, the jury
may tend to go higher in pegging that life’s value than it might otherwise find
warranted because the jury knows that this valuation is not the number that will
ultimately control. So—particularly when it is uncertain whether the trial court
will actually be permitted to reduce a damages award based on a jury’s finding of
comparative fault—it follows that a defendant would likely want the jury informed
that its percentage reduction might never be applied so that the jury will understand
the significance of the number it assigns to the value of the plaintiff’s life and will
not go higher than what it actually thinks that value to be, which a defendant would
fear the jury otherwise might do if it expects that its award will be reduced by the
percentage it has designated. Likewise, under the same circumstances, a plaintiff
might well prefer that the jury believe the value it ascribes to the decedent’s life
will definitely be reduced by the percentage of fault ascribed to the latter: hoping
that the jury may well go higher on its valuation assessment than it would were
there no possibility of a reduction based on the decedent’s fault.
Yet, in this case—for reasons perhaps understandable on Plaintiff’s part but
less so on Defendant’s part—the parties played against type, going the opposite
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direction than that indicated above. Specifically, in his first proposed instruction,
Smith requested that the court reveal to the jury that allocating a percentage of
fault to Mrs. Smith would not necessarily mean that the compensatory damages
would be reduced. Smith indicated that instructions in other Engle cases had been
more cryptic on this matter and that “to reflect Florida law and to avoid any
confusion, [Smith’s] Proposed Instructions and Verdict Form do not state that
damages for all claims will be reduced by the percentage of fault on the decedent
. . .” Instead, Smith recommended that the following instruction should be given:
Allocating a percentage of fault to [decedent’s name] will only reduce
the amount of the recovery on some claims. Under the law, some
claims are subject to reduction due to the fault of the claimant and
others are not. In other words, if you find that [decedent’s name] was,
for example, 50% responsible for [his/her] own death, you would fill
in that percentage as your finding on the verdict form. The Court will
enter a judgment based on your verdict and on entering judgment will
make any reduction required by law to reduce the damages by the
percentage of fault that you find is chargeable to [decedent’s name].
Defendant’s proposed instructions, however, were silent as to any possibility that
the percentage of fault attributed to Mrs. Smith would not automatically result in a
reduction of the compensatory damages.
Thereafter, the district court directed the parties to submit a different set of
proposed instructions that more closely complied with the standard instructions
given in another federal Engle case. Smith and Defendant jointly presented a set of
instructions that had been used in two previous federal Engle progeny cases, with
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any objections listed. As to the instruction on comparative fault, the prior-case
instructions included no warning to the jury that its calculation of Mrs. Smith’s
fault might not actually impact the recovery. Given that omission, Smith sought to
add language that he believed would so alert the jury. Smith explained:
This language clarifies that comparative fault does not apply to
intentional torts. . . . The instructions given in Pickett and Walker,
however, did not make it clear that if the jury found liability for fraud
or conspiracy, damages would not be reduced by the portion of fault
attributable to the decedent. Thus to reflect Florida law and to avoid
any confusion, this language modeled after instructions used in state
court Engle progeny litigation is necessary and appropriate.
Yet, consistent with its legal contention that a comparative negligence
finding by the jury does automatically result in a proportionate reduction of
compensatory damages on all claims, Defendant objected to language intended to
alert the jury that a reduction based on its finding of relative fault would not
necessarily apply to all claims, because “it is nonstandard, misleading and
confusing to the jury, contrary to Florida law, and an unjustified departure from the
instructions given in federal Engle progeny trials to date.”
During the instruction conference with the district court, Smith explained his
concern if the court instructed the jury that the court would reduce the damages to
the extent the jury found Mrs. Smith to have been at fault. Smith made clear his
position that the comparative fault statute applying to negligence claims does not
apply if the jury also finds for a plaintiff on an intentional tort claim. Yet,
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Defendant’s proposed instruction offered no such caveat. Smith expressed his
concern that, if given as written, Defendant would later argue that Smith had
waived his right to argue that the damages should not be reduced upon a finding of
liability on the intentional tort claims.
Indicating disagreement that a reduction of damages would be precluded
based on a finding of its liability on an intentional tort, Defendant objected to an
instruction that alerted the jury that its compensatory damages’ calculation might
not be reduced based on the decedent’s own negligence. Defendant assured the
court and Smith that Defendant would not later argue waiver simply because Smith
did not object to Defendant’s requested instruction. Having trouble understanding
any further concern by Smith on this subject, the district court opined that “if the
law is that there’s no comparative negligence in an intentional tort, then we don’t
apply percentage of fault.” Smith explained that in other cases in which the jury
has been instructed that damages will be reduced based upon a finding of fault by
the plaintiff, Defendant had argued that such a reduction must occur, even if an
intentional tort was found. “And that’s what I’m trying to protect against.” The
district court inquired whether Smith sought a stipulation against such an
argument. Defendant responded, “By the fact that they have objected to this, we
are no longer in a position and would not anyhow argue that by the giving of this
instruction they are somehow precluded from arguing their view of the
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comparative fault statute.” And both the court and the parties indicated that this
concluded the matter.
The court then instructed the jury pursuant to the instruction requested by
Defendant: “Allocating a percentage of fault to Mrs. Smith will . . . reduce the
amount of Mr. Smith’s recovery . . . . [T]he Court will prepare the judgment to be
entered and will reduce Mr. Smith’s total damages by the percentage that you
insert.” The jury found Defendant liable on the intentional torts, but also found
that Mrs. Smith was 45% responsible for her injuries. After the verdict, Defendant
requested that the court reduce the compensatory damages proportionately with
Mrs. Smith’s own fault, “as in almost all of the trials where this issue has arisen.”
As Smith had always indicated he would do, Smith objected to any reduction,
given the jury’s finding of liability on the intentional tort claims. Yet, contrary to
Defendant’s representation at trial that Smith would not be precluded from
advocating his interpretation of the comparative fault statute should the jury find
Defendant liable on an intentional tort, that is exactly the argument Defendant
made. Defendant contended that by arguing that the jury should consider
apportionment and by presenting a verdict form that did not alert the jury that its
assessment of comparative fault would not be applied if liability was based on both
negligence and intentional torts, Smith had thereby waived any objection to the
application of comparative fault to all claims found by the jury.
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The district court heard oral argument on the matter, focusing first on the
legal question whether the comparative negligence statute should even apply in a
situation such as this. Learning that Florida courts were not consistent in how they
had handled the issue, the court noted that “there’s a great deal of intuitive appeal
about the defendant’s position” in that while Defendant’s concealment was an
intentional tort, Mrs. Smith herself had made an intentional decision to continue to
smoke: acts that could be compared. But ultimately, without guidance from
Florida appellate courts, the district court interpreted the statute as disallowing any
reduction based on the negligence of the plaintiff when the jury had also found a
defendant liable for an intentional tort.
Turning next to the question whether Smith had waived the right to argue
that a reduction of damages was prohibited by the statute, Defendant contended
that, by acknowledging to the jury its responsibility to apportion fault, Smith could
not, post-verdict, switch gears and argue that fault should not be apportioned.
Moreover, Defendant noted the unfairness of allowing a plaintiff to gain credibility
with a jury by conceding his own fault and telling the jury that it should consider
that fault, when all the while the plaintiff knows that this acceptance of
responsibility is a sham because any reckoning of that fault by the jury will not be
implemented in the final judgment.
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The court expressed sympathy for Defendant’s position: “I couldn’t agree
with you more. It probably does have an influence, and I think the plaintiffs are
wise to take that approach.” Nevertheless, recalling Defendant’s assurance during
the instruction colloquy that Smith would not be deemed to have waived his right
to argue against a reduction of damages, the district court was unpersuaded by
Defendant’s contrary post-verdict argument. Thereafter, the district court entered a
written order consistent with its oral conclusions expressed at the hearing, and it let
Smith’s $600,000 compensatory damages verdict stand, unreduced by the 45%
responsibility the jury had assigned to Mrs. Smith.
III. Florida Law Governing Comparative Fault
We review de novo a district court’s interpretation of a state law. McMahan
v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). Florida Statute § 768.81 provides
for a reduction of damages in a negligence action for a plaintiff who has herself
acted negligently, in proportion to the plaintiff’s degree of fault. Specifically, “[i]n
a negligence action, 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.” Fla. Stat. § 768.81(2) (2011). The statute provides that a “[n]egligence
action” means “without limitation, a civil action for damages based upon a theory
of negligence, strict liability, products liability, professional malpractice . . . or
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breach of warranty and like theories.” Id. § 768.81(1)(c). A “‘[p]roducts liability
action’ means a civil action based upon a theory of strict liability, negligence,
breach of warranty, nuisance, or similar theories for damages caused by the
manufacture, construction, design, formulation, installation, preparation, or
assembly of a product.” Id. § 768.81(1)(d). On the other hand, “This section does
not apply . . . to any action based upon an intentional tort.” Id. § 768.81(4).
Finally, “[t]he substance of an action, not the conclusory terms used by a party,”
determines whether an action is a negligence action or a products liability action.
Id. § 768.81(1)(c) and (d).
It had been Defendant’s position, during trial and on appeal, that Smith’s
action, at its heart, was a products liability and negligence action—not an
intentional torts action—notwithstanding the existence of claims based on
intentional and fraudulent concealment. Florida intermediate courts of appeal had
been split on the question whether an Engle progeny action that contains both
negligence/strict liability claims and intentional tort claims can nevertheless be
deemed a negligence/products liability action for purposes of qualifying for
reduction of damages based on the plaintiff’s own negligence.
But there is no point recounting the different arguments each side has
mustered because the Florida Supreme Court, very recently, resolved the issue
decisively. That court held that when an Engle progeny case contains both
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negligence and intentional tort claims and when the jury has found for the plaintiff
on an intentional tort claim, then the compensatory damages award cannot be
reduced based on the plaintiff’s percentage of fault, unless the plaintiff waived the
intentional tort exception. Schoeff v. R.J. Reynolds Tobacco Co., 2017 WL
6379591, at *7, ___ So. 3d ___ (Fla. Dec. 14, 2017). Given the Florida Supreme
Court’s holding, Defendant’s interpretation of this Florida statute cannot prevail.
Therefore, the district court properly interpreted Florida law in ultimately deciding
that, pursuant to that law, Smith’s damages could not be reduced, even though the
jury found Mrs. Smith to be 45% at fault for her injuries.
IV. Whether Smith’s Trial Conduct or the District Court’s Failure to
Follow Its Own Instruction Regarding Reduction of Compensatory
Damages Entitles Defendant to a Reduction of Those Damages
The Florida Supreme Court having decided that Defendant’s interpretation
of the Florida law on this point is wrong, Defendant is left with two arguments for
nonetheless reducing the compensatory damages based on plaintiff’s own
contributory negligence: (1) Smith’s conduct in arguing to the jury that it would
be able to reduce his compensatory damages based on his wife’s own contributory
negligence now estops him from taking a different position and (2) having
instructed the jury that it would reduce the damages by the percentage of
responsibility the jury assigned to Mrs. Smith for her injuries, the district court was
bound to comply with its own ruling.
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A. Smith’s Conduct At Trial
Defendant contends that Smith waived his right to non-apportioned damages
due to his use of Mrs. Smith’s comparative fault as a litigation tactic. That is,
Defendant avers that Smith disingenuously argued to the jury that it should take his
wife’s own negligence into account in awarding damages, when, in fact, his true
position was that upon a finding by the jury of liability on the intentional tort
claims, the jury’s finding of partial responsibility on Mrs. Smith’s part would be a
futile decision with no consequences. The district court found no waiver.
We review the district court’s application of waiver for abuse of discretion.
Proctor v. Fluor Enter., Inc., 494 F.3d 1337, 1351 (11th Cir. 2007).
“Waiver is the voluntary, intentional relinquishment of a known right.” Glass v.
United of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994); Wood v.
Milyard, 566 U.S. 463, 470 n.4 (2012) (“A waived claim or defense is one that a
party has knowingly and intelligently relinquished . . . .”). “In diversity of
citizenship actions, state law defines the nature of defenses, but the Federal Rules
of Civil Procedure provide the manner and time in which defenses are raised and
when waiver occurs.” Morgan Guar. Trust Co. of New York v. Blum, 649 F.2d
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342, 344 (5th Cir. Unit B 1981).3 Along with the intent of the party against which
waiver is asserted, “the reality of notice and the reality of prejudice in fact must be
considered.” Proctor, 494 F.3d at 1352. The party asserting waiver bears the
burden of proof. See Glass, 33 F.3d at 1348.
Defendant argues that state law governs the substantive standards used to
determine whether Smith waived his right to contest the apportionment of damages
based on his wife’s fault; Smith argues that federal law applies. At the time that
Defendant argued that state law authority controlled, there was Florida authority
favoring its position. Since that time, however, the Florida Supreme Court has
issued an opinion that greatly undermines Defendant’s reliance on Florida law for
its waiver argument.
As noted, the Florida Supreme Court recently decided that the Florida
comparative fault statute does not apply to reduce a plaintiff’s damages on a
negligence claim when the jury has also found liability based on an intentional tort.
See Schoeff, 2017 WL 6379591, at *7. The Florida Supreme Court nevertheless
held open the possibility that a plaintiff could waive the intentional tort exception.
Id. (“Because the jury found for Mrs. Schoeff on the intentional tort claims in this
case, her compensatory award may not be reduced unless she waived the
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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intentional tort exception.”) The court noted that three different Florida
intermediate appellate courts (district courts) had found that a plaintiff could waive
the intentional tort exception under certain circumstances. The court noted that one
of those district courts—the First District—found that the trial court did not abuse
its discretion in finding waiver where the plaintiff had assured the jury throughout
trial that her deceased spouse was partially at fault for his illness, where the court
had instructed the jury that it would reduce the compensatory damages by
whatever percentage of fault it attributed to the smoker, and where the plaintiff
never informed the jury of the potential inapplicability of the comparative fault
statute. Id. at *8 (citing to R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 475(Fla. 1st DCA 2014)). The Florida Supreme Court further noted that the same
district court found no waiver in a case containing different facts. In that case, R.J.
Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), the plaintiff
had made clear in its complaint that fault should not be apportioned on intentional
torts, the plaintiff had never argued to the jury or court that his damages should be
reduced by his portion of the fault, and the defendants had agreed to the verdict
form. Schoeff, supra.
The Florida Supreme Court found the case before it to be more similar to
Sury than to Hiott. Id. It noted that, like the plaintiff in Sury, Schoeff’s complaint
made clear that she opposed apportionment of fault on the intentional tort counts.
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Further, the verdict form in the Schoeff case listed the finding on the intentional
tort claims after the question on the negligence claims and its accompanying
question on apportionment of fault. Id. Finally, the defendants in Schoeff had
agreed to the verdict form that was used.
Were that all the court stated, we might conclude that the Florida Supreme
Court envisioned the possibility of waiver based on different facts. But, in the next
paragraph, the court stated, with no explanation of its reasoning, that it disagreed:
with the Fifth District in Green and the First District in Hiott to the
extent they held that the intentional tort exception is waived when an
Engle progeny plaintiff argues comparative fault on the negligence
counts, and we reject the Fourth District majority’s theory of waiver
below. Based on the foregoing, we find that the trial court abused its
discretion in finding that Mrs. Schoeff waived the intentional tort
exception.
Id. Given the absence of explanation why it disagreed with the above intermediate
Florida courts of appeal, it is unclear in what situations, if any, the Florida
Supreme Court might find waiver to have occurred. But, at the least, one can fairly
infer that the court is not keen on the notion of waiver in this context. And, as
Defendant argues that state law controls, this is not a helpful inference.
As noted, Smith argues that federal law applies, albeit there appears to be no
federal precedent on point. Even assuming that federal law would control, not
Schoeff, we find no waiver here. We repeat: waiver is the voluntary, intentional
relinquishment of a known right. It is difficult to conclude that a litigant who has
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consistently proclaimed his opposition to apportionment of fault on an intentional
tort claim has somehow waived his right to later maintain that position as to the
entry of the judgment. This is particularly so when defense counsel indicated at
trial that it would not later argue that Plaintiff had waived his right to oppose
apportionment.
Defendant argues that its promise not to argue waiver was limited to the
question of the now-problematic instruction given to the jury, to which, as we have
explained, Smith actually objected. Instead, Defendant says, its waiver argument
is based on the fact that Smith admitted to the jury that his wife bore some
responsibility for her injuries, all the while knowing that Smith would object to any
actual reduction should the jury find liability on the intentional tort. But what else
was Smith to do? The question of comparative fault was before the jury, and he
had to argue his position on that matter. And his position, actually, was to
minimize as much as possible his wife’s fault, which is what one would expect him
to do. Had Smith affirmatively misled the jury as to the law in his summation—
which he did not do—it was up to Defendant to object and for the court to correct
any misrepresentation. There was no objection and no correction. It was not
Smith’s job to explain to the jury what would happen if they found Defendant
liable on the intentional torts. It is the court that instructs the jury. And, as we
have noted, Smith actually sought an instruction that would have informed the jury
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that damages would not necessarily be reduced upon the jury’s finding of
negligence on Mrs. Smith’s part. Defendant, however, objected to that requested
instruction, persuading the district court to give the problematic instruction that led
to the jury confusion about which it now complains. Finally, the verdict form here
could clearly have been drafted in a way that minimized, or even eliminated, any
jury confusion. Defendant did not object to the verdict form that was given to the
jury.
For these reasons, we conclude that Smith did not waive his right to insist
that the Florida intentional tort exception be applied to prevent reduction of
compensatory damages based on Mrs. Smith’s degree of fault.
B. Impact of Incorrect Instruction Given by District Court
Even if Smith did not waive his right to insist on application of the
intentional tort exception, Defendant argues that reversible error occurred when the
district court gave the jury an instruction that likely had an impact on their
calculation of damages, only to abandon that instruction after the verdict. Given
the Florida Supreme Court’s recent ruling in Schoeff, a jury’s finding of liability on
an intentional tort means that the compensatory damages award in an Engle case
cannot be reduced even when the jury has found that the plaintiff’s own fault
contributed to her injuries. For that reason, in assuring the jury that the damages
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award would be reduced proportionally with the jury’s finding of Mrs. Smith’s
own negligence, the district court clearly gave an incorrect instruction.
Yet Defendant finds itself in a weak position to challenge the instruction.
Typically, a challenge to a jury instruction arises when the party complaining on
appeal is either damaged by an instruction to which he has objected or when the
court has refused to give an instruction that the complaining party has requested.
Here, the district court did not refuse to give an instruction that Defendant
requested or give an instruction to which Defendant objected. The court gave the
exact instruction requested by Defendant.
But Defendant’s argument here is more nuanced than merely complaining
about a jury instruction. At the time that this case was tried, Florida law was
unclear as to whether a finding of liability on an intentional tort would prevent a
reduction of damages for a plaintiff who was found to be contributorily negligent.
Defendant argues that, by deciding to give Defendant’s proposed instruction—an
instruction that we will assume could have had an impact on the jury’s calculation
of damages—the district court was obliged to follow through on that instruction.
According to Defendant, even though the district court later changed its mind as to
the correctness of that instruction, the court could not subsequently unring the bell
it had tolled before the jury, and its renunciation of its earlier decision potentially
prejudiced Defendant in terms of the damages awarded by the jury.
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There is some facial appeal to Defendant’s argument, as a general matter.
Defendant’s own conduct in this case, however, undermines what might otherwise
be a problematic decision by the district court. In particular, it was very uncertain
whether Defendant’s interpretation of Florida law would ultimately win the day in
the Florida court system. That being so, Smith took a prudent position, advocating
for an instruction that would better protect Defendant regardless of how the Florida
law issues might ultimately be decided. Smith wanted the jury to know that its
attribution of fault to his wife would not necessarily result in a reduction of his
damages. It was Defendant who aggressively sought an instruction that it knew
could well impact the jury’s calculation of damages in a way that would disfavor
Defendant should Florida law not be interpreted the way it hoped. It is hard to
understand why Defendant did so.
But even leaving aside Defendant’s pivotal role in creating this problem, we
will assume for purposes of this appeal that reversible error can potentially result
when a district court, post-verdict, renounces an instruction it gave the jury and
thereby prejudices the party at whose request the instruction was given.
Nonetheless, Defendant’s suggested remedy is not apt. In particular, Defendant
asks that compensatory damages be reduced by the 45% of fault the jury imputed
to Mrs. Smith, even though it is now clear that such a reduction does not comply
with Florida law. But that would not be the correct remedy here even if we
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Case: 13-14316 Date Filed: 01/25/2018 Page: 23 of 23
accepted Defendant’s argument. On these specific facts, where it was Defendant
who had prompted the incorrect instruction—rejecting an instruction that would
have better protected it—Defendant would at most be entitled to a new trial on the
question of damages. Notably, Defendant never requested a new trial before the
district court, nor has Defendant here requested remand for a new trial on the
question of damages. 4 The relief Defendant requests—a reduction of damages in
violation of Florida law—is obviously not apt.5 Accordingly, we conclude on the
facts of this case that the district court’s repudiation of its own charge to the jury
concerning the reduction of damages does not justify a reversal of its ultimate
decision not to reduce those damages.
V. Conclusion
For the above reasons, we AFFIRM the district court.
4
On appeal, Defendant has asked, should we reject its argument that compensatory damages
must be reduced as a matter of law, that we remand to allow the district court to reassess its
rejection of Defendant’s waiver argument in light of two intermediate Florida appellate court
decisions. Those decisions having now been disavowed by the Florida Supreme Court, there
would be no point to that remand.
5
And how unfair it would be to Smith to summarily reduce his damages based on an incorrect
instruction requested by Defendant, instead of, at the least, giving Smith a second shot before a
jury that was properly instructed.
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