On Motion for Rehearing
Upon consideration of appellant’s motion for rehearing, we deny rehearing, but withdraw our prior opinion and substitute the following in its place.
In this Engle
Factual Background
Matthew Buonomo began smoking at age thirteen. In 1995, after fifty-plus years of smoking three packs a day, Buo-nomo began suffering from chronic obstructive pulmonary disease (COPD). Pri- or to his death in 2008, Buonomo filed suit against RJR. Connie Buonomo, Matthew’s widow and the personal representative of his estate, was substituted as the plaintiff and the case was tried in 2010. Plaintiff asserted claims for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment.
As an Engle progeny case, the trial proceeded in two phases. In phase I, the jury was asked to determine whether Buonomo was a member of the Engle class, i.e., whether he was addicted to cigarettes, whether his addiction to cigarettes was a legal cause of his COPD, and whether he had COPD prior to November 21, 1996. After resolving these issues in plaintiffs favor, the trial proceeded to phase II, which required the jury to determine whether Buonomo’s COPD was a legal cause of his death and whether RJR’s negligence and intentional misconduct were a legal cause of Buonomo’s death.
During phase II, the jury heard extensive testimony concerning the tobacco industry’s efforts to conceal the harmful effects of smoking. The jury was instructed to accept the following factual findings established as the result of the Engle case: (1) nicotine is addictive; (2) smoking causes COPD; (3) RJR was negligent; (4) RJR placed cigarettes on the market that were defective and unreasonably dangerous; and (5) RJR concealed and/or omitted material information or failed to disclose material facts concerning the health effects or addictive nature of cigarettes and entered into an agreement to conceal or omit the health effects or their addictive nature with the intent that smokers and the public rely on such information to their detriment. The jury also listened to Buo-nomo’s widow, daughters, and grand
Having heard the evidence, the jury returned a verdict in favor of the plaintiff, finding that RJR was guilty of negligence, gross negligence, and intentional misconduct; that RJR’s negligence and intentional misconduct were the legal cause of Buonomo’s COPD and death; and that Buonomo had reasonably relied upon RJR’s concealment or omission of material information concerning the health effects and addictive nature of cigarettes. The jury apportioned 77.5% of the fault to RJR and 22.5% to Buonomo, awarding $405,000 for medical and funeral expenses, $4.83 million for plaintiffs past and future pain and suffering and her loss of companionship, and $25 million in punitive damages. As the result of RJR’s post-trial motions for remittitur, the trial court reduced the compensatory damages award by the 22.5% fault the jury attributed to Buonomo and reduced the punitive damages to $15,705,000 — three times the amount of compensatory damages awarded by the jury.
Statute of Repose
RJR sought to avoid liability for the fraudulent concealment and conspiracy to commit fraudulent concealment claims by asserting a statute of repose defense, 1.e., plaintiffs claims were barred as plaintiff could not demonstrate detrimental reliance upon any statements made by defendant on or after May 5, 1982, twelve years prior to the filing of suit by plaintiffs in the Engle case. See § 95.031(2)(a), Fla. Stat. (stating that “in any event an action for fraud ... must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered”). Prior to trial, the trial court struck the defense. RJR insists the striking of the defense was error, maintaining that the statute of repose is an individualized defense that was not foreclosed by Engle and that must be decided on a case-by-case basis — an argument with which we have consistently agreed. See Philip Morris USA Inc. u Putney,
As we have previously held, while the conduct elements of the claims for fraudulent concealment and conspiracy to commit fraudulent concealment were established by virtue of the Engle decision, an Engle progeny plaintiff still must prove detrimental reliance upon the defendant tobacco company’s misinformation. See Kayton,
Cross-Appeal: Punitive Damages
The jury awarded $25 million in punitive damages in connection with the fraud claims. In response to RJR’s motion for remittitur, the trial court reduced the punitive damages to $15,705,000. The trial court’s order states that, as the result of section 768.73(l)(a)L, Florida Statutes, the punitive damages “must be reduced to three times the compensatory damages awarded.” Plaintiff argues the trial court erred in finding the statute required the reduction of the punitive damages to three times the compensatory damages. We agree.
We begin by finding that neither the $25 million in punitive damages initially awarded by the jury nor the reduced amount of $15,705,000 is so excessive as to violate due process. See R.J. Reynolds Tobacco Co. v. Martin,
In its order, the trial court cited section 768.73(l)(a)l. While the court did not include a year, section 768.73 did not have a subsection “(l)(a)l.” until after the 1999 amendments. See Ch. 99-225, § 23, at 1416-18, Laws of Fla. And, under the post-1999 version of the statute (the statute has not been amended since 1999), a punitive damages award cannot exceed the greater of three times the compensatory damages award or $500,000 unless certain findings are made by the “fact finder.” See § 768.73(l)(a)-(c), Fla. Stat. (2012). It is, however, the 1995 version of the statute that governs the instant case — a fact the parties do not dispute. See Alamo Rent-A-Car, Inc. v. Mancusi,
Conclusion
In sum, having considered all arguments raised, we affirm the judgment and damages awarded on the plaintiffs strict liability and negligence claims. We reverse, however, the judgment entered in plaintiffs favor on the claims for fraudulent concealment and conspiracy to commit fraud by concealment due to the erroneous striking of RJR’s statute of repose defense. To remedy the erroneous striking of the defense, we remand the case for a jury determination on the statute of repose issue. In the event the jury should find in favor of the plaintiff on the statute of repose issue, the trial court is free to reinstate the punitive damages award made by the jury, subject to any reduction made by the trial court in the exercise of the discretion afforded it under section 768.73, Florida Statutes (1995).
Affirmed in part, Reversed in part, and Remanded.
Notes
. Engle v. Liggett Group, Inc.,
. In Hess, the Florida Supreme Court denied Philip Morris’s petition for review by order dated June 3, 2013. That same day, however, in case number SC12-2153, the Florida Supreme Court granted Elaine Hess’s petition for review. Similarly, in Kayton, both parties have filed petitions seeking review from the Florida Supreme Court. On June 13, 2013, in case numbers SC13-171 and SC13-243, the Florida Supreme Court ordered the proceedings in Kayton stayed pending disposition of Hess.
. Plaintiff also asserts error in the reduction of the compensatory damages award to account for the smoker's contributory fault. Any error in the reduction of the compensatory damages was invited and/or waived by plaintiff. Compare Philip Morris USA, Inc. v. Hess,