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Eleventh Circuit follows Florida Supreme Court precedent; rules in Engle progeny tobacco case that intentional tort judgment precluded comparative fault reduction on all claims

On January 25, 2018, in Smith v. R. J. Reynolds Tobacco Co., No, 13-14316, the Eleventh Circuit Court of Appeals affirmed a district court’s decision not to reduce a compensatory damage award in an Engle progeny tobacco case based on the decedent smoker’s comparative fault. The Eleventh Circuit based its decision on the Florida Supreme Court’s recent holding the when an Engle progeny case contains both 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).

An additional issue in the case arose because during trial and prior to the issuance of the Schoeff decision, the parties had agreed that comparative fault instructions should be given to the jury, although the plaintiff’s attorney had advocated for an instruction alerting the jury to the fact that the allocation would not apply to some claims. The defendant’s attorney successfully argued against this and assured the court the defendant would not later argue that the plaintiff had waived the right to object to a comparative fault reduction simply because of an acquiescence to the defense’s proposed instruction. Nevertheless, after the verdict was returned, the defense argued that the plaintiff had waived the right to contest the comparative fault reduction by arguing the apportionment issue before the jury. The trial court disagreed, and the Eleventh Circuit affirmed, noting that “[i]t is difficult to conclude that a litigant who has 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.”

The defense also argued that the compensatory damages should be reduced by the comparative fault on the basis that the trial court committed reversible error by giving the comparative fault jury instruction and then abandoning it in rendering the final judgment. The Eleventh Circuit rejected this argument as well, noting that it was the defendant who had sought the jury instruction and that, in any event, the appropriate remedy would have been a remedy never sought by the defense on appeal, i.e., a new trial on damages rather than the application of a fault reduction at odds with current Florida law.