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Fourth DCA reverses Engle progeny tobacco case award based on trial court's failure to reduce the jury's compensatory damages by the plaintiff's comparative fault

On January 4, 2017, in R.J. Reynolds Tobacco Company v. Grossman (No. 4D13-3949), the Fourth DCA ruled that the trial court had erred in a Engle progeny tobacco case in failing to reduce the jury's compensatory damages by the decedent's comparative fault. The trial court had refused to reduce the damage award, maintaining that Fla. Stat. 768.81(4) barred such a reduction because the defendant committed an intentional tort. The Fourth DCA noted that it had already ruled in another Engle progeny tobacco case, R.J. Reynolds Tobacco Company v. Schoeff, 178 So. 3d 487, 496 (Fla. 4th DCA 2015) that the Engle progeny cases are products liability suits based on conduct grounded in negligence, and that application of any comparative negligence reduction is accordingly required.

However, the Fourth DCA rejected the defense's attempt to reduce the compensatory damage awards to the surviving children ($7.5 million and $4 million) as excessive, noting that prior cases finding similar awards to be excessive involved adult children (the children in this case were minors at the time of their father's death). The Court also rejected the defendant's claim that the punitive damage award of $22.5 million was excessive in light of the aggregate $13.5 million compensatory damage award.

Finally, in rejecting the defendant's appeal of the denial of a motion for mistrial based on alleged improper closing argument by plaintiff's counsel, the Fourth DCA ruled that because the defendant had not contemporaneously moved for a mistrial when its objections were made during closing argument and sustained by the trial court, and instead waited to lodge the mistrial motion until the jury was already in deliberations, a "fundamental error" standard applied which had not been met by the defense. The Court noted in this context that if the defense's objections had been overruled by the trial court, it would not have been necessary to contemporaneously move for a mistrial to preserve that issue.

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