Lucille Ruth Soffer, etc. v. R.J. Reynolds Tobacco Company , 41 Fla. L. Weekly Supp. 101 ( 2016 )

Supreme Court of Florida
____________
No. SC13-139
____________
LUCILLE RUTH SOFFER, etc.,
Petitioner,
vs.
R.J. REYNOLDS TOBACCO COMPANY,
Respondent.
[March 17, 2016]
PARIENTE, J.
The issue framed by the certified question in this case is whether individual
members of the Engle class are entitled to seek punitive damages under theories of
negligence or strict liability in their individual lawsuits following this Court’s
decertification of the class action in Engle v. Liggett Group, Inc., 945 So. 2d 1246,
1254 (Fla. 2006). In Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 460-61
(Fla. 1st DCA 2012), the First District Court of Appeal, in a split decision, held
that individual members of the Engle class action are bound by the procedural
posture of the Engle class representatives when they pursue their individual
lawsuits and thus cannot seek punitive damages on the counts for negligence or
strict liability. Id. at 459-61. However, because its decision rested on its
interpretation of this Court’s decision in Engle, the First District certified the
following question of great public importance for this Court’s review:
ARE MEMBERS OF THE CLASS IN ENGLE V. LIGGETT
GROUP, INC., 945 So. 2d 1246 (Fla. 2006), ENTITLED TO
PURSUE AN AWARD OF PUNITIVE DAMAGES UNDER
THEORIES OF NEGLIGENCE OR STRICT LIABILITY?
Id. at 461.1 Subsequently, in Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350,
358 (Fla. 2d DCA 2013), the Second District Court of Appeal reached the opposite
conclusion, certified conflict with the First District’s decision in Soffer, and also
certified the same question as the First District. The Third and Fourth District
Courts of Appeal have adopted the reasoning of Soffer. See R.J. Reynolds
Tobacco Co. v. Williams, No. 3D13-2099, 39 Fla. L. Weekly D1863 (Fla. 3d DCA
Sept. 3, 2014) (summarily adopting the holding in Soffer); R.J. Reynolds Tobacco
Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013) (adopting Soffer and vacating
punitive damages award of $50,000).
To resolve this conflict and to answer the certified question, we hold that the
individual members of the Engle class action are not prevented from seeking
punitive damages on all claims properly raised in their subsequent individual
actions. We reach this decision for several reasons.
1. We have jurisdiction. See art. V, §3(b)(4), Fla. Const.
-2-
First, the Engle trial court’s denial of the motion to amend the class action
complaint to include a demand for punitive damages on the counts for negligence
and strict liability was not based on the merits of the request but instead rested on
the procedural posture at the time. The procedural posture of the case changed
entirely when this Court vacated the entire punitive damages award of $145 billion
and the related findings on punitive damages, thus wiping the slate clean as it
relates to punitive damages and requiring each individual plaintiff to prove
entitlement to punitive damages in his or her individual lawsuit. See Engle, 945
So. 2d at 1254.
Second, a demand for punitive damages is “not a separate and distinct cause
of action; rather it is auxiliary to, and dependent upon, the existence of an
underlying claim.” Liggett Grp., Inc. v. Engle, 853 So. 2d 434, 456 (Fla. 3d DCA
2003), quashed in part by Engle, 945 So. 2d at 1254. Therefore, neither the statute
of limitations nor principles of equitable tolling bars a plaintiff from requesting
punitive damages on all properly pled counts. In fact, a plaintiff cannot even
include a demand for punitive damages in the initial complaint and is allowed to
add a request for punitive damages only if the evidence establishes a right to claim
punitive damages by a “reasonable showing by evidence in the record,” pursuant to
section 768.72(1), Florida Statutes.
-3-
Third, the legal standard for establishing entitlement to punitive damages—
that is, that the plaintiff must prove by clear and convincing evidence that the
conduct causing the damage was either “intentional” or “grossly negligent”—does
not vary depending on the underlying legal theory. Even if negligence or strict
liability constitutes the underlying cause of action, the plaintiff must prove that the
defendant’s conduct was “so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed
to such conduct.” In re Std. Jury Instr. In Civ. Cases—Report No. 09-01, 35 So. 3d
666, 790 (Fla. 2010). The burden of proof is heightened from the general “more
likely than not” standard that applies to general liability questions in a civil case to
a more stringent “clear and convincing” standard, no matter what the theory of
punitive damages. The jury is instructed that, based on the allegedly intentional
misconduct or gross negligence, it must determine whether punitive damages are
warranted “as punishment” against the defendant and “as a deterrent to others.” Id.Accordingly, for these reasons, we answer the certified question in the
affirmative, quash the First District’s decision in Soffer, and approve the well-
reasoned decision of the Second District’s opinion in Hallgren as to the issue of
punitive damages. We further disapprove R.J. Reynolds Tobacco Co. v. Williams,
No. 3D13-2099, 2014 WL 4344369 (Fla. 3d DCA Sept. 3, 2014), as well as the
-4-
portion of R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA
2013), which addresses this issue.2
FACTS AND BACKGROUND
Maurice Soffer died in May of 1992 from lung cancer caused by smoking.
After this Court issued its decision in Engle, 945 So. 2d at 1254, requiring class
members to file their own individual actions within a year, Soffer’s widow, Lucille
Soffer, brought a wrongful death action against R.J. Reynolds Tobacco Company
pursuant to that decision. Her complaint asserted four causes of action, all of
which had been pled in the Engle class litigation: negligence, strict liability, fraud
by concealment, and conspiracy to commit fraud.
Approximately a year prior to trial, Soffer filed a motion to amend her
complaint to add a demand for punitive damages pursuant to Florida Rule of Civil
Procedure 1.190(f) and section 768.72, Florida Statutes. Soffer’s request for the
amendment was not limited to any one count. R.J. Reynolds objected based on its
position that the allegations in support of the motion to amend were “conclusory
assertions that defendants’ conduct was grossly negligent or willful and wanton”
and without “factual support.” Further, R.J. Reynolds argued that “[t]o the extent
2. We granted review in Ciccone on a separate issue regarding a certified
conflict of when a tobacco-related condition is manifested. R.J. Reynolds Tobacco
Co. v. Ciccone, No. SC13-2415 (Fla. order accepting jurisdiction filed June 13,
2014).
-5-
that Plaintiff seeks punitive damages on a theory that defendants were grossly
negligent, she has not proffered anything to show . . . such conduct or the required
nexus to Plaintiff’s decedent.” (Emphasis omitted.) The trial court granted the
motion to amend.
The case proceeded to trial, where evidence of punitive damages was
introduced without any ruling from the trial court that limited the evidence of
punitive damages to any specific count. During the jury charge conference, R.J.
Reynolds asserted for the first time that the jury should be instructed that punitive
damages could be considered only on the fraudulent concealment and conspiracy
counts based on the procedural posture of the original Engle class action. Despite
the fact that the trial court had permitted Soffer to amend her complaint to seek
punitive damages—an amendment that was not limited to any particular count—
the trial court agreed with R.J. Reynolds and instructed the jury that punitive
damages could be awarded only if the jury found in favor of Soffer on the claims
for fraudulent concealment or conspiracy and not under the negligence or strict
liability claims.
The jury found that R.J. Reynolds was liable based on the strict liability and
negligence claims, awarding $5,000,000 in compensatory damages, reduced by
60% comparative negligence. The jury, however, rejected the claim that R.J.
Reynolds’ fraudulent concealment or conspiracy was a legal cause of Soffer’s
-6-
death and thus did not consider an award of punitive damages. The jury verdict
consisted of special interrogatories as follows:
1. Was Maurice Benson Soffer addicted to cigarettes containing
nicotine manufactured by R.J. Reynolds Tobacco Company, and if so,
was such addiction a legal cause of his death?
YES __X____ NO ______
(If you answered “NO” to question 1, your verdict is for R.J.
Reynolds Tobacco Company and you should proceed no further
except to date and sign the verdict form and return it to the courtroom.
If you answered “YES” to question 1, please answer Questions 2
through 5.)
2. Was R.J. Reynolds Tobacco Company’s negligence a legal cause
of Maurice Benson Soffer’s death?
YES ___X___ NO ______
3. Were the defective and unreasonably dangerous cigarettes placed
on the market by R.J. Reynolds Tobacco Company a legal cause of
Maurice Benson Soffer’s death?
YES ___X___ NO ______
4. Was R.J. Reynolds Tobacco Company’s concealment or omission
of material information about the health effects or addictive nature of
smoking cigarettes or both a legal cause of Maurice Benson Soffer’s
death?
YES ______ NO ___X___
5. Was R.J. Reynolds Tobacco Company’s agreement with others to
conceal or omit material information about the health effects or
addictive nature of smoking cigarettes or both a legal cause of
Maurice Benson Soffer’s death?
YES ______ NO ___X___
-7-
The jury was instructed that if it answered “NO” to questions 4 and 5, as it did, it
should not consider the questions pertaining to punitive damages.
After reduction for comparative negligence, a judgment was entered for the
plaintiffs for a total amount of $2,000,000. Soffer appealed, asserting that the trial
court erred in instructing the jury that it was prohibited from awarding punitive
damages on the counts for negligence and strict liability.3
The First District affirmed the trial court on this issue, noting that Soffer
chose to bring her individual action pursuant to Engle based on the benefits that
membership in the Engle class confers, specifically: (1) the res judicata effect of
certain factual findings made in Engle, which relieved individual progeny plaintiffs
of the substantial burden, time, cost, and risk of proving the tortious-conduct
elements of their actions against the defendants; and (2) a lengthy tolling of
Florida’s statute of limitations, which ordinarily is two years. Soffer, 106 So. 3d at
457-58. Thus, the First District held, “[p]rogeny plaintiffs wear the same shoes, so
to speak, as the plaintiffs in Engle because they are the plaintiffs from Engle.” Id.
at 460 (emphasis omitted). In reaching this conclusion, the First District relied on
this Court’s decision in Engle, noting that the opinion did not suggest that progeny
3. R.J. Reynolds did not cross-appeal the compensatory damages award.
-8-
plaintiffs could bring other claims and remedies that had not been timely asserted
as part of the Engle litigation. Id.Judge Lewis dissented from the First District’s holding in Soffer, reasoning
that res judicata did not bar a plaintiff from seeking punitive damages on all
properly pled counts because this Court’s Engle decision never required Engle
progeny plaintiffs to file identical claims. In concluding that an Engle progeny
plaintiff should be able to seek different remedies, Judge Lewis relied on three
reasons: (1) a claim for punitive damages is “not a separate and distinct cause of
action but is auxiliary to, and dependent upon, the existence of an underlying
claim”; (2) the plaintiff’s “reliance on the [Engle] Phase I findings was not relevant
to her claim for punitive damages, which she had to independently prove”; and (3)
this Court “retained most of the jury’s Phase I findings,” with the exception of the
findings on punitive damages. Id. at 463 (Lewis, J., concurring in part and
dissenting in part). Judge Lewis asserted that in his view, based on this error,
Soffer should be entitled to a new trial, limited solely to the issue of punitive
damages. Id. at 464.
The Second District, in Hallgren, agreed with Judge Lewis’s concurring-in-
part and dissenting-in-part opinion. Hallgren, 124 So. 3d at 355. In that case,
Claire Hallgren died from lung cancer on November 26, 1995, following her sixty-
year use of tobacco products manufactured by Philip Morris and R.J. Reynolds. Id.-9-
at 351-52. Theodore Hallgren, as personal representative of her estate, filed a
complaint based on Engle, asserting four causes of action: (1) strict liability; (2)
fraudulent concealment; (3) conspiracy to commit fraudulent concealment; and (4)
negligence. Id. at 355. Hallgren also sought punitive damages on all four counts,
which the trial court permitted. Id. The trial was bifurcated into two phases. In
Phase I, the jury determined that Hallgren was a member of the Engle class and
found in favor of Hallgren on all counts, apportioning fifty percent of fault to Mrs.
Hallgren, twenty-five percent to Philip Morris, and twenty-five percent to R.J.
Reynolds. Id. In addition, the jury determined the amount of compensatory
damages, which the trial court reduced to approximately $1,000,000 based on
comparative fault, and found that Hallgren was entitled to punitive damages
against each defendant. Id. In Phase II, the jury awarded Hallgren “$750,000 in
punitive damages against both Philip Morris and R.J. Reynolds.” Id.The tobacco companies appealed, asserting that Hallgren was precluded
from seeking punitive damages on his claims of negligence and strict liability
because he initiated the action pursuant to Engle and was relying on the res
judicata effect of the Engle litigation, despite the Engle class plaintiffs having not
sought punitive damages under all of the same theories of liability. Id. at 353. The
Second District disagreed that an Engle progeny plaintiff is precluded from seeking
- 10 -
punitive damages for strict liability and negligence as a result of the procedural
posture of Engle. Id.While the Second District acknowledged that members of the Engle class
benefit by the res judicata effect of the Phase I findings, the district court rejected
the notion that “such benefit precludes an Engle progeny plaintiff from seeking a
remedy barred as untimely by the Engle trial court for mere procedural
deficiencies.” Id. at 354. In fact, the Second District held that “the unique nature
of Engle necessitates a finding that progeny plaintiffs are permitted to seek
punitive damages on their claims for negligence and strict liability.” Id. In
reaching this conclusion, the Second District relied on this Court’s opinion in
Engle and concluded that the decision “neither expressly nor impliedly expanded
its Engle res judicata parameters to limit Engle progeny plaintiffs’ ability to pursue
the remedy of punitive damages.” Id. at 357. The Second District recognized that
the First District reached an opposite conclusion in Soffer and certified conflict.
Hallgren, 124 So. 3d at 358.
ANALYSIS
The certified question asks this Court whether Engle progeny plaintiffs may
pursue an award of punitive damages under theories of negligence or strict
liability, or whether they are limited to seeking punitive damages only as to the
intentional tort counts of fraudulent concealment and conspiracy that were
- 11 -
permitted in the original Engle class action. In analyzing this question, we begin
by reviewing Engle, including whether progeny plaintiffs who are part of the Engle
class are bound by the procedural posture of punitive damages in the Engle class
action and whether they “stand in the shoes” of the class representatives for all
purposes. We conclude that the individual progeny plaintiffs are not bound by the
prior procedural posture of Engle when pleading punitive damages because the
findings regarding liability for punitive damages were vacated.
We then proceed to address the additional argument raised by R.J. Reynolds:
whether the Engle progeny plaintiffs are precluded from pursuing punitive
damages on all counts because the Engle class representatives did not cross-appeal
the denial of their motion to amend. We also explain why a claim for punitive
damages is not a separate cause of action that is subject to a separate statute of
limitations. Finally, we address whether R.J. Reynolds would be prejudiced in this
case by allowing Soffer to seek punitive damages on her causes of action for
negligence and strict liability. We conclude that there is no legal or principled
basis for denying Engle progeny plaintiffs the right to pursue punitive damages on
all properly pled counts.
I. The Engle Class Proceedings: Res Judicata & Procedural Posture
The original Engle class action complaint was filed in May 1994. Shortly
thereafter, an amended complaint was filed, raising eight counts: (1) strict liability;
- 12 -
(2) fraud; (3) conspiracy to commit fraud; (4) breach of implied warranty; (5)
intentional infliction of emotional distress; (6) negligence; (7) a request for
equitable relief; and (8) breach of express warranty. R.J. Reynolds Tobacco Co. v.
Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996). The amended complaint sought
punitive damages only on the intentional tort counts—fraud, conspiracy to commit
fraud, and intentional infliction of emotional distress. The trial court certified the
class, and the Third District affirmed the trial court’s certification order, but
modified it to apply to only Florida citizens and residents. Id. at 40, 42.
The trial was divided into three phases. In Phase I, the jury determined
whether the defendants were liable and whether the entire class was entitled to
punitive damages. Engle, 853 So. 2d at 441. In Phase II, the jury determined the
amount of compensatory damages for the named plaintiffs and the amount of
punitive damages for the entire class. Id. In Phase III, new juries were to
determine the defendants’ liability to the remaining class members and, if liability
was established, to determine compensatory damages. Id. at 442.
Regarding punitive damages, class counsel announced during Phase I their
intention to seek punitive damages as to all counts, but never filed a motion to
amend the complaint to seek these damages for any counts other than the
intentional tort counts originally pled. At the conclusion of Phase I, the jury found
the defendants liable to the class members as a whole and also found that the class
- 13 -
members were entitled to punitive damages. After the jury found entitlement to
punitive damages, class counsel asked for leave to amend the complaint to seek an
award of punitive damages for all counts. The trial court ultimately denied the
motion as untimely, so the Engle jury considered the amount of punitive damages
based only on the counts for fraud, conspiracy to commit fraud, and intentional
infliction of emotional distress.
The jury found that the class as a whole was entitled to $145 billion in
punitive damages, to be divided by the class members. At this point, the
defendants appealed.4 The Third District reversed the judgment and decertified the
class.
This Court approved in part and quashed in part the Third District’s
decision. Engle, 945 So. 2d at 1254. As to the issue of punitive damages, this
Court held that the trial court prematurely allowed the jury to consider entitlement
to, and amount of, punitive damages before the jury determined issues of causation
and damages on the underlying claims. Id. at 1263. As this Court reasoned, “a
finding of liability is required before entitlement to punitive damages can be
determined, and that liability is more than a breach of duty. A finding of liability
necessarily precedes a determination of damages, but does not compel a
4. Because the defendants appealed after Phase II-B, the action did not
proceed to Phase III.
- 14 -
compensatory award.” Id. at 1262-63.5 In other words, before damages can be
imposed, the factfinder must determine individualized issues, such as legal
causation and comparative fault—issues not yet determined in Phase I. Because
problems with the three-phase trial plan negated the continued viability of the class
action, this Court decertified the Engle class. Id. at 1267-69.
While decertifying the class, this Court indicated that the decertification was
without prejudice for the class members to file individual claims within one year of
the issuance of this Court’s mandate, with res judicata effect given to the following
specific Phase I findings:
Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict
liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-
concealment), 6 (breach of implied warranty), 7 (breach of express
warranty), and 8 (negligence).
Id. at 1254-55. In other words, this Court explicitly held that the common liability
findings from Phase I had res judicata effect for the Engle progeny plaintiffs but
that none of the findings pertaining to punitive damages could stand.
The First District in Soffer and the Second District in Hallgren have each
interpreted this Court’s Engle decision, reaching different conclusions as to the
effect of Engle on claims for punitive damages. We now hold that the Second
5. We also determined that the punitive damages award to the class based
on the intentional tort theories was clearly excessive because it would practically
bankrupt some of the defendants. Engle, 945 So. 2d at 1265 n.8.
- 15 -
District’s interpretation of the effect of our Engle decision is the correct one. As
the Second District reasoned:
We recognize and appreciate the unprecedented significance of
the Engle decision, and we agree that the Engle class is benefited by
the res judicata effect of the Phase I findings. Nonetheless, we cannot
conclude that such benefit precludes an Engle progeny plaintiff from
seeking a remedy barred as untimely by the Engle trial court for mere
procedural deficiencies. Further, unlike the First District, we
conclude that the unique nature of Engle necessitates a finding that
progeny plaintiffs are permitted to seek punitive damages on their
claims for negligence and strict liability.
First, as noted by the First District, the supreme court did not
address this issue in Engle; rather, the supreme court made two
holdings with regard to punitive damages, neither of which creates a
bar to individual progeny plaintiffs seeking punitive damages for strict
liability and negligence claims. When the supreme court concluded
that the punitive damages award must be reversed, it decided to
decertify the class and retain the Phase I findings as to claims for
negligence, strict liability, fraudulent concealment, and conspiracy to
commit fraudulent concealment. Engle, 945 So. 2d at 1269. The
court held that “[c]lass members can choose to initiate individual
damages actions and the Phase I common core findings . . . will have
res judicata effect in those trials.” Id. By specifically stating that the
Phase I common core findings would have res judicata effect without
declaring the same for the procedural posture of the litigation, the
court indicated that the rejected findings (and the issues not passed
upon) would not have the same res judicata effect as is generally the
case when litigation is declared res judicata. Thus, while Mr.
Hallgren and the Tobacco Companies are clearly bound by the
findings the supreme court upheld, they are not similarly bound by the
findings not passed upon.
Hallgren, 124 So. 3d at 354-55 (footnote omitted). We agree with Hallgren and
accordingly conclude that the res judicata effect of the Phase I findings addressed
- 16 -
in Engle has no application to claims for punitive damages sought by Engle
progeny plaintiffs.
Our decision in Engle specifically set forth those findings to which res
judicata applies; nothing within our decision expanded the res judicata effect to the
ability to pursue the remedy of punitive damages. Engle, 945 So. 2d at 1269(“Class members can choose to initiate individual damages actions and the Phase I
common core findings . . . will have res judicata effect in those trials.”). In his
concurring-in-part and dissenting-in-part opinion in Soffer, Judge Lewis aptly
noted that R.J. Reynolds’ argument—that res judicata precludes an Engle progeny
plaintiff from seeking punitive damages on such claims—is actually an attempt to
expand the res judicata effect of Engle beyond the parameters set by this Court.
Soffer, 106 So. 3d at 462 (Lewis, J., concurring in part and dissenting in part).
There is simply no basis to conclude that the procedural posture of Engle
would bar an Engle progeny plaintiff, such as Soffer, from amending her complaint
to request punitive damages on all counts that were properly pled in her individual
action. As the Second District explained:
Practically speaking, however, a progeny plaintiff is still required to
file a new complaint and go through the procedural morass of
initiating a new cause of action. And a progeny plaintiff must still
prove the “individual aspects of the claims specific to each plaintiff,”
including damages. [Philip Morris USA, Inc. v. Douglas, 110 So. 3d
419, 432 (Fla. 2013).] Because the decision preventing the Engle
class from amending its complaint to seek punitive damages for
negligence was merely procedural and was not decided on the merits,
- 17 -
we conclude that the res judicata effect of the Phase I findings does
not preclude progeny plaintiffs from seeking punitive damages on
those claims. See id. at 433 (recognizing “that a ‘purely technical,’
non-merits judgment ‘may not be used as a basis for the operation of
the doctrine of res judicata’ ” (quoting Kent v. Sutker, 40 So. 2d 145,
147 (Fla. 1949))).
Hallgren, 124 So. 3d at 357. In other words, once the punitive damages award was
vacated by this Court, any individual plaintiff was back to square one on the issue
of punitive damages:
But when the Engle trial court’s judgment as to issues of punitive
damages was reversed, the class members seeking punitive damages
had to effectively start over in order to plead, prove, and collect
punitive damages. If the supreme court had not opted to decertify the
class and had instead remanded for a new trial, the class would have
been free to renew its motion to amend the complaint to add the
remedy of punitive damages to all of its substantive claims. See
generally Fla. R. Civ. P. 1.190. Thus, we conclude that Mr. Hallgren
was entitled to assert a claim for punitive damages on his claims for
negligence and strict liability because, as the Soffer majority
recognized, he was in the “same position [class members] would have
been in had they filed a complaint identical to the Engle class-action
complaint on the same date the original complaint was filed.” Soffer,
106 So. 3d at 460.
Hallgren, 124 So. 3d at 357 (emphasis added).
As the Second District recognized, once this Court vacated all of the jury’s
findings pertaining to punitive damages and required members of the Engle class
to file individual complaints, the slate was wiped clean as it pertained to punitive
damages. Thus, we reject R.J. Reynolds’ argument that res judicata and the
- 18 -
procedural posture of Engle prevent Soffer from seeking punitive damages on all
properly pled causes of action.
II. Waiver by Failure to Cross-Appeal
As an additional aspect of its preclusion argument, R.J. Reynolds points to
Airvac, Inc. v. Ranger Insurance Co., 330 So. 2d 467, 469 (Fla. 1976), for the
proposition that a prevailing party must cross-appeal the denial of a motion to
amend or else the party waives the right to reassert that motion following any
remand. In other words, because the Engle class did not cross-appeal the denial of
the motion to amend, R.J. Reynolds contends, the trial court’s decision to disallow
the amendment was fixed.
However, this argument by R.J. Reynolds is itself waived. When Soffer
initially moved to amend her complaint, R.J. Reynolds did not argue that the trial
court should deny the motion because the individual Engle progeny plaintiffs had
waived the right to amend a complaint to seek punitive damages as to other counts.
Now, R.J. Reynolds seeks to raise this new basis for why the trial court erred in
permitting the amendment. Thus, R.J. Reynolds has waived this argument.
Although we conclude that this argument was waived, even if it were not,
Airvac is distinguishable. Specifically, in Airvac, the Fourth District remanded the
case on the initial appeal and directed three specific factual determinations: (1)
whether Airvac had an insurable interest in a lost aircraft, (2) whether the
- 19 -
petitioner in that case held a valid lien, and (3) the amount of the lien. 330 So. 2d
at 468. After remand, the defendant requested the trial court to permit it to add a
new defense, which was intermingled with the liability questions. Id. at 469.
However, the defendant had previously sought to amend the complaint to include
this defense, and the trial court denied that request—a ruling that the defendant
never challenged. While the decision in Airvac enunciated the law of the case
doctrine in concluding that on remand the defendant could not amend its complaint
to include the new defense, this Court later clarified that it decided Airvac on
principles of waiver. See Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107
(Fla. 2001) (recognizing the confusion that the Airvac holding caused). Because,
as we have recognized in Juliano, Airvac improperly conflated the doctrines of
waiver and law of the case, we now clarify that we recede from Airvac to the
extent that it relies on the law of the case doctrine.
As to waiver, Airvac is distinguishable because waiver depends significantly
on the posture of the case. Unlike Airvac, where the new defense was commingled
with the issues of liability that were raised on appeal, the issue pertaining to
punitive damages in this case was completely wiped clean. In fact, it makes no
sense to apply the Airvac decision to this procedural scenario. The Engle trial
court denied class counsels’ motion to amend to include additional grounds for
punitive damages based on timeliness because the motion was filed after the jury
- 20 -
found entitlement to punitive damages. However, the timeliness issue became
moot when this Court decertified the class and vacated all findings pertaining to
punitive damages.
Principles from cases vacating a trial court proceeding and ordering a new
trial are analogous. As this Court held in Ed Ricke & Sons, Inc. v. Green, “[a]n
order directing a new trial has the effect of vacating the proceeding and leaving the
case as though no trial had been had.” 609 So. 2d 504, 507 (Fla. 1992) (quoting
Atl. Coastline R.R. v. Boone, 85 So. 2d 834, 839 (Fla. 1956)). Other district courts
have likewise permitted a party to bring new claims where the case is remanded for
a new trial. See Agate v. Clampitt, 80 So. 3d 450, 452 (Fla. 2d DCA 2012);
Hethcoat v. Chevron Oil Co., 383 So. 2d 931, 933 (Fla. 1st DCA 1980). The
principles of Ed Ricke—not Airvac—apply. We therefore reject this argument.
III. Statute of Limitations & Equitable Tolling
We turn next to R.J. Reynolds’ argument that the statute of limitations and
principles of equitable tolling prohibit Soffer from seeking punitive damages under
the negligence or strict liability theories. We reject this argument because a claim
for punitive damages is not a separate, free-standing cause of action subject to a
separate statute of limitations, but is rather a remedy that can be sought based on
any properly pled cause of action.
- 21 -
In Soffer, the First District held that “principles of equitable tolling do not
revive claims for punitive damages that were not timely presented.” 106 So. 3d at
459. R.J. Reynolds argues that, if not for equitable tolling, Soffer’s complaint
would have been time-barred for over a decade, and equitable tolling does not
permit a plaintiff to raise a demand for punitive damages unless this relief was
previously pursued by the class.
The flaw in this argument is that it merges the distinct concepts of the
timeliness of filing a complaint against a defendant based on an underlying course
of conduct that results in harm to an individual, with the later ability to amend a
pleading to add additional theories of recovery under the applicable rules of
procedure. The statute of limitations is a separate and distinct concept from the
ability of either party to amend their pleadings to add additional requests for relief.
Statutes of limitations pertain to the time in which a cause of action can be brought
against a defendant. As this Court has long recognized, the purpose of the statute
of limitations is to protect parties from “defending claims which, because of their
antiquity, would place the defendant at a grave disadvantage.” Major League
Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001) (quoting Nardone v.
Reynolds, 333 So. 2d 25, 36 (Fla. 1976)).
In contrast, a claim for punitive damages is not subject to a separate statute
of limitations, but is actually dependent on the underlying cause of action. A claim
- 22 -
for punitive damages focuses on ensuring the correct remedy for the underlying
violation—one that punishes the defendant and deters others from engaging in
similar conduct. As Judge Lewis of the First District aptly noted in his concurring-
in-part and dissenting-in-part opinion:
Engle III does not impose a blanket requirement that Engle
progeny plaintiffs must file identical claims to the original class.
Rather, it suggests that in order to take advantage of the Phase I
findings, progeny plaintiffs must file the same claims. Here, Mrs.
Soffer was able to take advantage of the Phase I findings because she,
in fact, filed the same claims as the original class (strict liability,
negligence, fraud, and conspiracy to commit fraud). The only
difference is the remedy. The fact that her remedy of punitive
damages was more extensive than that sought by the Engle class is not
necessarily fatal. First, a claim for punitive damages is “not a separate
and distinct cause of action but is auxiliary to, and dependent upon,
the existence of an underlying claim.” See Liggett Grp. Inc. v. Engle,
853 So. 2d 434, 456 (Fla. 3d DCA 2003) (“Engle II”), quashed in part
by Engle III, 945 So. 2d at 1254; see also Country Club of Miami
Corp. v. McDaniel, 310 So. 2d 436, 437 (Fla. 3d DCA 1975).
Second, her reliance on the Phase I findings was not relevant to her
claim for punitive damages, which she had to independently prove.
See, e.g., [R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 717-
18 (Fla. 4th DCA 2011)] (clarifying that the plaintiff must prove legal
causation and damages). Third, the supreme court retained most of
the jury’s Phase I findings, except that it did not retain the finding on
entitlement to punitive damages, which it found to be premature. See
Engle III, 945 So. 2d at 1269.
Soffer, 106 So. 3d at 463 (Lewis, J., concurring in part and dissenting in part)
(emphasis added).
In fact, although the Florida Rules of Civil Procedure govern most of the
principles regarding amendments to pleadings, the Legislature has separately
- 23 -
addressed the right to recover punitive damages—not through the enactment of a
separate statute of limitation, but through a separate statutory scheme in section
768.72. Section 768.72(1), titled “Pleading in civil actions; claim for punitive
damages,” states in pertinent part:
In any civil action, no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for
recovery of such damages. The claimant may move to amend her or
his complaint to assert a claim for punitive damages as allowed by the
rules of civil procedure. The rules of civil procedure shall be liberally
construed so as to allow the claimant discovery of evidence which
appears reasonably calculated to lead to admissible evidence on the
issue of punitive damages. No discovery of financial worth shall
proceed until after the pleading concerning punitive damages is
permitted.
Section 768.72(1) reveals a clear legislative intent for defendants to be free from
claims for punitive damages until an evidentiary basis exists. Thus, it is crystal
clear that the Legislature intended for plaintiffs to conduct discovery prior to
seeking punitive damages, and to thereafter allow a claim for punitive damages as
provided by the Florida Rules of Civil Procedure.
Florida Rule of Civil Procedure 1.190(f) allows a complaint to be amended
to add a claim for punitive damages only if there is a “reasonable showing, by
evidence in the record, or evidence to be proffered by the claimant, that provides a
reasonable basis for the recovery of such damages,” thereby mirroring the statutory
mandate. Further, rule 1.190(c) provides for relation back of amendments to
- 24 -
pleadings if the amended claim arises out of the same “conduct, transaction or
occurrence” set forth in the original pleading.
Thus, so long as the cause of action is timely filed, a claimant may conduct
discovery to determine whether sufficient evidence exists to seek punitive damages
and then request to amend the complaint at a later date. Because a claim for
punitive damages cannot be filed until after a cause of action is filed, and because
it must be based on an existing cause of action and is not a separate cause of
action, a claim for punitive damages is not subject to a separate statute of
limitations. Thus, we reject the assertion that the statute of limitations and
principles of equitable tolling prohibit a plaintiff from seeking punitive damages
when the underlying action was timely filed.
IV. Prejudice & Application of Law to This Case
Having concluded that res judicata, waiver, or the relevant statute of
limitations do not prevent the plaintiff from seeking to amend the complaint to
include a demand for punitive damages, we examine how these principles apply to
this case and whether R.J. Reynolds would be prejudiced by allowing Soffer to
seek punitive damages for these additional counts. Here, Soffer did not delay in
bringing her cause of action. Consistent with this Court’s direction in Engle,
Soffer brought her own individual complaint, raising four causes of action that
were all approved in Engle. After conducting discovery, Soffer sought to amend
- 25 -
her complaint, pursuant to section 768.72(1), to request punitive damages for those
timely raised causes of action. The only difference between the causes of action in
Engle and Soffer is that, in Soffer, a request for punitive damages was made for all
of the counts pled.
The procedural posture in Soffer’s individual case was completely different
at the time that Soffer sought to amend her complaint to request punitive damages
than that in Engle. In Engle, class counsel sought to amend the complaint to
include a request for punitive damages on the non-intentional tort claims after the
jury already found liability on the causes of action. Here, however, Soffer sought
to amend her complaint to request punitive damages over a year prior to trial, and
the trial court granted leave. In fact, while R.J. Reynolds objected to the
amendment, R.J. Reynolds did not contend that Soffer was barred from requesting
punitive damages on the negligence and strict liability counts until the eve of trial.
We reject R.J. Reynolds’ argument of prejudice for many reasons. First, in
the Engle case itself, entitlement to punitive damages was determined at the same
time that the liability was decided, and there is no indication that the jury verdict
on entitlement differentiated based on the underlying cause of action. As the
Second District stated:
[W]e find no surprise or prejudice to the Tobacco Companies in
allowing Engle progeny plaintiffs to seek punitive damages for
negligence and strict liability claims. From the inception, it was no
secret that the Engle class members were seeking punitive damages as
- 26 -
a remedy on all of their substantive claims. The Tobacco Companies
had sufficient notice and ample time to prepare their defense to those
remedies. In Engle, however, the trial court precluded the class from
seeking punitive damages on the non-intentional tort claims merely
through a procedural defect—timeliness. Unlike Engle, in this case
there was no suggestion that Mr. Hallgren’s claim seeking punitive
damages on all claims was untimely, nor any suggestion that the
Tobacco Companies experienced any prejudice. Accordingly, the
Tobacco Companies should not benefit from an unjustifiable
expansion of the res judicata effect of Engle, which applies only to the
substantive claims, to exclude a proper and timely pleaded remedy
sought under those claims.
Hallgren, 124 So. 3d at 357-58.
Like the plaintiff in Hallgren, when Soffer sought to amend her complaint to
seek punitive damages as to all counts pled, R.J. Reynolds did not assert either
surprise or prejudice. After its initial objection to punitive damages was
unsuccessful, R.J. Reynolds changed tactics and, after the trial was underway and
the parties were discussing the appropriate jury instructions, argued for the first
time that punitive damages for strict liability and negligence should not be
permitted based on the procedural posture of Engle. Once again, no assertion of
surprise or prejudice was made. Now, R.J. Reynolds asserts that it was surprised
and prejudiced when the trial court permitted the plaintiffs to amend the complaint
and allow punitive damages on all claims, instead of a portion of the claims.
However, R.J. Reynolds fails to show how the differentiation as to the underlying
legal theory would affect this.
- 27 -
The legal standard for establishing entitlement to punitive damages does not
vary depending on the underlying legal theory. The standard jury instructions on
punitive damages mirror the statutory directive as to proof of punitive damages as
set forth in section 768.72(2):
(2) A defendant may be held liable for punitive damages only
if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross
negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had
actual knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was
so reckless or wanting in care that it constituted a conscious disregard
or indifference to the life, safety, or rights of persons exposed to such
conduct.
Therefore, the defendant cannot be liable for punitive damages simply on the basis
of a jury finding that the defendant was strictly liable or negligent. Absent a
finding of intentional misconduct, the defendant can be liable for punitive damages
only if there is a finding by clear and convincing evidence of gross negligence—
the same standard that applies regardless of the underlying cause of action.
Accordingly, there is no prejudice. Thus, the trial court did not err when
allowing Soffer to amend her complaint to add punitive damages for negligence
and strict liability but did err in disallowing the jury from considering punitive
damages on those counts.
- 28 -
V. The Proper Remedy
Finally, we address whether the proper remedy should be a new trial on all
issues or a new trial focused solely on punitive damages. Although there is no
claim of error in this case pertaining to the liability portion of the trial, where the
jury found liability based on negligence and strict liability, R.J. Reynolds insists
that a new trial is warranted because the respective determinations of liability and
punitive damages are necessarily intertwined.
We disagree. In fact, in Engle, although we vacated the punitive damages
award, we upheld the compensatory damages awards as they pertained to class
representatives Mary Farnan and Angie Della Vecchia and did not require a new
trial on both compensatory and punitive damages. Engle, 945 So. 2d at 1255-56.
Consistent with decisions of other appellate courts, we conclude that where a trial
court errs in striking a plaintiff’s request for punitive damages before the jury
considered the issue, the proper remedy is to reverse and remand for a new trial
limited solely to the issue of punitive damages. See, e.g., Belle Glade Chevrolet-
Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So. 3d 991, 998 (Fla. 4th
DCA 2010) (holding that the trial court abused its discretion in instructing the jury
on punitive damages, reversing the punitive damages award, and remanding for a
new trial on punitive damages alone); Estate of Canavan v. Nat’l Healthcare Corp.,
889 So. 2d 825, 827 (Fla. 2d DCA 2004) (holding that the trial court erred in
- 29 -
excluding certain evidence during the punitive damages portion of the trial and
remanding for a new trial on the amount of punitive damages only); Stephens v.
Rohde, 478 So. 2d 862, 863 (Fla. 1st DCA 1985) (rejecting explicitly the
defendant’s argument that if the punitive damages demand was reinstated, any new
trial should be on both compensatory damages and punitive damages because the
two are so intertwined as to require a new trial on both, and remanding for a new
trial limited to the issue of whether punitive damages should be imposed and, if so,
the amount thereof).
Accordingly, because the trial court erred by preventing the jury from
considering Soffer’s request for punitive damages on all four counts, we remand
for a new trial limited to the issue of whether punitive damages should be imposed
for the negligence and strict liability claims and, if so, the amount thereof. We
emphasize that Soffer still must satisfy the statutory requirements to demonstrate
entitlement to punitive damages under these theories, including that the trier of fact
must find, based on clear and convincing evidence, that R.J. Reynolds was
“personally guilty of intentional misconduct or gross negligence.” § 768.72(2),
Fla. Stat. This requires a determination that R.J. Reynolds either (1) had actual
knowledge of the wrongfulness of the conduct and the high probability that injury
or damage to the decedent would result and, despite that knowledge, intentionally
pursued that course of conduct, resulting in injury or damage; or (2) engaged in
- 30 -
conduct that was so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons exposed to such
conduct. Id.
CONCLUSION
Writing for the Second District in Hallgren, Judge Sleet summarized the
conclusion we adopt today:
Under these circumstances, [the plaintiff] should not be limited
to the pretrial procedural order on the Engle class’s proposed
amendment. Once the class’s punitive damage award was reversed,
and each class member was required to seek punitive damages anew,
progeny plaintiffs were free to assert any remedies available under the
law. Tacking on the remedy of punitive damages to the negligence
and strict liability claims does not materially alter the substantive
claims, and it does not materially differ from the punitive damages
sought by the Engle class on the intentional tort claims. Considered in
light of the supreme court’s decision to allow Engle progeny plaintiffs
to “initiate individual damages actions,” one simply cannot infer that
the supreme court intended to place a limitation upon progeny
plaintiffs’ ability to pursue punitive damages as a remedy. The Engle
Phase I findings simply closed the door on any new or additional
substantive claims and permitted each plaintiff to independently prove
his or her respective damages, including punitive damages, at separate
trials.
Hallgren, 124 So. 3d at 358.
For the reasons explained in this opinion, we answer the certified question in
the affirmative, quash the First District’s decision in Soffer, and approve the
- 31 -
Second District’s opinion in Hallgren as to the issue of punitive damages.6 Based
on our reasoning here, we further disapprove the Third District’s decision in
Williams, 39 Fla. L. Weekly at D1863, and the Fourth District’s resolution of the
punitive damages issue in Ciccone, 123 So. 3d at 616-17 (Fla. 4th DCA 2013),
We remand this case to the First District for further proceedings consistent
with this opinion.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
First District - Case No. 1D11-3724
(Alachua County)
6. The Second District’s decision in Hallgren also addresses whether the
claims were barred by the statute of repose, an issue that we recently addressed in
Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 689 (Fla. 2015), and Philip
Morris USA, Inc. v. Russo, 175 So. 3d 681, 685 (Fla. 2015). In Hess, this Court
held that while the critical date of the statute of repose relating to conspiracy
claims should be the date of the last act done in furtherance of the conspiracy,
evidence of reliance need not be established within the fraud statute of repose
period. 175 So. 3d at 698-99.
- 32 -
John Stewart Mills and Courtney Rebecca Brewer of The Mills Firm, P.A.,
Tallahassee, Florida; Rodney Warren Smith, Mark Alexander Avera, and Dawn
Marie Vallejos-Nichols of Avera & Smith, LLP, Gainesville, Florida; and James
William Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A.,
Tallahassee, Florida,
for Petitioner
Gregory George Katsas of Jones Day, Washington, District of Columbia; Robert
Bruce Parrish and Charles M. Trippe, Jr. of Moseley, Prichard, Parrish, Knight &
Jones, Jacksonville, Florida,
for Respondent
- 33 -