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Florida Fourth DCA rules that defendant waived right to comparative fault reduction in Engle progeny tobacco case by assuring jurors that comparative fault would not apply

On November 22, 2017, in Philip Morris v. Marchese, No. 4D16-2003, the Florida Fourth DCA reversed a trial court’s reduction of the plaintiff’s compensatory damage award to account for the plaintiff’s comparative fault. During the trial, defense counsel had repeatedly taken the position that the defendant was not seeking a reduction for comparative fault regarding the punitive damages related claims in the complaint. The jury subsequently reached a verdict in the first phase of the case find for the plaintiff regarding the claims for compensatory damages and the intentional tort claims, but finding the decedent 55% at fault. In the subsequent punitive damages phase of the trial, defense counsel assured the jurors in the opening statement that the compensatory damages award would not be reduced by the decedent’s comparative fault. In post-trial motions, the defense then reversed field and successfully argued based on the just released Fourth DCA decision in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), the compensatory damages award was in fact subject to the comparative negligence reduction. On appeal, the Fourth DCA noted that the plaintiff in Schoeff the plaintiff had attempted the same basic stratagem – acknowledging to the jurors that some comparative fault reduction should be made – and then arguing before the Court that comparative fault should not apply because the overall claim was grounded in an intentional tort. The Fourth DCA concluded in this case, as in Schoeff, that the inconsistent position in effected result in a waiver of the argument.

It is noteworthy that the 4th DCA’s underlying ruling in Schoeff, that the case was “at its core, a products liability suit based on conduct grounded in negligence,” 178 So. 3d at 495, is at odds with the decision of the First DCA in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013).

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