238 So. 3d 828
Fla. Dist. Ct. App.2018Background
- Plaintiff Robert Gore (personal representative of Gloria Gore’s estate) sued Philip Morris USA and R.J. Reynolds in an Engle-progeny wrongful-death action; jury found for plaintiff and awarded compensatory damages.
- Trial court permitted historian Dr. Proctor to testify about tobacco companies’ historical conduct (including use of ammonia) but excluded him from offering chemistry opinions.
- Defendants sought pretrial Daubert relief but did not make a contemporaneous Daubert/section 90.702 objection at trial to preserve that challenge.
- Trial court applied the jury’s comparative-fault apportionment to reduce compensatory damages; plaintiff argued the intentional-tort exception to comparative fault barred any reduction.
- Plaintiff conditionally sought leave to amend to add punitive damages on his non-intentional tort claims pending Florida Supreme Court rulings; cross-appeal raised entitlement to seek punitive damages on negligence/strict-liability claims.
- Fourth District affirmed on defendants’ appeal (Daubert preservation, due process, preemption rejected); reversed on cross-appeal, holding plaintiff may pursue punitive damages on non-intentional torts (subject to leave) and compensatory damages cannot be reduced by comparative fault because the intentional-tort exception was not waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of Daubert challenge to historian’s ammonia testimony | Gore argued Dr. Proctor offered allowable historical testimony; no contemporaneous Daubert needed after pretrial motion in limine | Defendants argued Dr. Proctor improperly gave scientific opinion that ammonia increases addictiveness and should be excluded under Daubert/§90.702 | Not preserved — defendants failed to raise a contemporaneous Daubert/§90.702 objection at trial, so appellate review denied |
| Due process / federal preemption of state Engle-progeny claims | Gore maintained Engle progeny claims are valid under Florida law | Defendants argued due process and preemption defeat plaintiff’s claims | Rejected — court followed controlling Florida DCA and Supreme Court precedent upholding Engle-progeny claims |
| Ability to seek punitive damages on negligence and strict-liability claims | Gore preserved conditional request to amend to seek punitive damages on non-intentional torts pending Soffer; seeks leave to add punitive claims | Defendants opposed punitive damages on non-intentional tort claims | Reversed on cross-appeal — plaintiff is entitled to seek leave to amend and pursue punitive damages on non-intentional tort claims under controlling decisions (Soffer) |
| Application of comparative fault to reduce compensatory damages | Gore argued intentional-tort jury findings preclude reducing compensatory damages by comparative fault; did not waive exception | Defendants argued plaintiff waived intentional-tort exception (including by verdict form and arguing comparative fault on negligence counts) | Reversed — plaintiff did not waive the intentional-tort exception; compensatory damages must be entered in full without comparative-fault reduction |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (establishes Engle class findings and framework for Engle-progeny claims)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (governs admissibility of expert scientific testimony)
- Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005) (issues must be presented below to be preserved on appeal)
- Boyles v. A & G Concrete Pools, Inc., 149 So. 3d 39 (Fla. 4th DCA 2014) (when in limine ruling deferred, party must object at trial to preserve exclusion issue)
- Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013) (due process and related limits on Engle-progeny proof addressed)
- R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590 (Fla. 2017) (Engle-progeny and related defenses analyzed)
- Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) (punitive damages may be available on non-intentional tort claims in tobacco cases under certain circumstances)
- Hardin v. R.J. Reynolds Tobacco Co., 208 So. 3d 291 (Fla. 3d DCA 2016) (conditional preservation of punitive-damages claim pending appellate developments)