Be Careful What You Wish For—Eleventh Circuit Rejects Argument That Appellant’s Own Requested Jury Charge Requires Reversal

In Smith v. R.J. Reynolds Tobacco Co., 2018 WL 549141 (11th Cir. Jan. 25, 2018), an Engle progeny tobacco case, the Eleventh Circuit rejected the defendant’s argument that the jury’s compensatory damages award should be reduced based on comparative fault. The relevant legal question was settled last month, when the Florida Supreme Court clarified in Schoeff v. R.J. Reynolds Tobacco Co., 2017 WL 6379591 (Fla. Dec. 14, 2017), that a defendant found liable for both intentional and non-intentional tort claims is not entitled to a reduction in compensatory damages. But the parties’ proposed jury instructions and their arguments at trial—which took place before the Schoeff decision was issued—figure prominently in the Eleventh Circuit’s resolution of the Smith appeal.

Smith asserted claims against R.J. Reynolds for both intentional torts and “non-intentional” negligence and strict liability, all based on smoking-related injuries suffered by his late wife. At the time of trial, the question whether comparative fault could be applied to a verdict finding liability for both intentional and non-intentional torts under Florida law was unsettled. Smith acknowledged in his argument to the jury that it should consider his wife’s negligence in choosing to smoke, and should attribute an appropriate percentage of fault to her. But Smith’s requested jury charges included an instruction to the effect that Mrs. Smith’s own negligence would reduce the recovery on only some, but not all, claims.

The defendant, which had argued throughout the case that a comparative negligence finding would reduce compensatory damages on all claims, objected to any instruction suggesting that damages awarded for some claims might not be reduced. Instead, the defendant requested an instruction that damages would be reduced based on Mrs. Smith’s percentage of fault, without distinction among the plaintiff’s claims. At the charge conference, Smith expressed his concern that his agreement to the defendant’s requested charge might be construed as a waiver of his argument that there should be no reduction if the defendant were found liable for an intentional tort. The defendant “assured the [district] court and Smith that Defendant would not later argue waiver simply because Smith did not object to Defendant’s requested instruction.” The instruction was given, and the jury assigned a negligence percentage to Mrs. Smith and found the defendant liable on all the plaintiff’s claims. The district court denied the defendant’s request to reduce the jury’s compensatory damages award, rejecting the argument that Smith had waived his right to oppose reduction of damages if the defendant were found liable for an intentional tort.

The Eleventh Circuit, in an opinion written by Judge Julie Carnes and joined by Judges Martin and Anderson, affirmed. Noting that “[w]aiver is the voluntary, intentional relinquishment of a known right,” the court found no waiver by Smith of the right to oppose reduction of the damages award: “It 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.” This was unaffected by Smith’s acknowledgement of fault before the jury, given that non-intentional tort claims were also in the case. And the defendant, the court said, had missed its chance to object to Smith’s jury argument, anyway: “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 to object and for the court to correct any misrepresentation. There was no objection and no correction.”

The court also rejected the defendant’s argument that the award should be reduced because the district court had (at the defendant’s request) instructed the jury (incorrectly, it turns out) that the damages award would be reduced based on its apportionment of negligence to Mrs. Smith. “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.” But the defendant never requested a new trial, and the court found no basis on which it could reduce the damages award in violation of Florida law. “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.”

Posted by Valerie Sanders.

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