www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

The 1st DCA in R.J. Reynolds Tobacco Company v. Diane Webb, 38 Fla. L. Weekly D2637a (Fla. 1st DCA December 17, 2013), reversed an amended final judgment awarding plaintiff $28.6 million in damages because defendant objected to the remittitur and as a "party adversely affected" pursuant to § 768.74, Fla. Stat., was entitled to the option of having a new trial on damages.

The underlying matter arose from a wrongful death action brought by Diane Webb against R.J. Reynolds Tobacco Company for the death of her father from lung cancer. A jury awarded Webb $7.2 million in compensatory damages and $72 million in punitive damages.

On appeal, the 1st DCA vacated the amount, finding that the damages award was a product of passion, rather than evidence of illness, death and non-economic consequences. The 1st DCA remanded to the trial court with directions to either grant RJR's motion for remittitur or hold a new trial on damages.

Webb filed a motion to set the remitted award to $4 million in compensatory and $25 million in punitive damages. RJR responded with a renewed motion for remittitur seeking $250,000 in compensatory damages and $250,000 in punitive damages. The trial court entered the order for $3.6 million in compensatory damages based upon the jury's apportionment of 10% fault to plaintiff's father, and $25 million in punitive damages.

The trial court held that RJR was not entitled to a new trial on damages unless Webb elected same. RJR appealed the amended final judgment on the basis that the court had erred by failing to hold a new trial on the damages amounts based on RJR's objections.

On review, the 1st DCA stated that, pursuant to § 768.74, Fla. Stat., a trial court may review damages awards to determine if amounts are excessive or inadequate. The statute states that "if the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial on the cause on the issue of damages only."

The 1st DCA looked to the Florida Supreme Court for guidance as to who is considered a party adversely affected under the statute. In Waste Management Inc. v. Mora, 940 So. 2d 1105 (Fla. 2006), the Supreme Court stated that a defendant who has an excessive jury verdict award can be a party adversely affected by a trial judge's remitter that is too little to cure the excess. A plaintiff who has a jury award for inadequate damages is a party adversely affected by an additur that is inadequate. In either case, the party complaining about excessiveness or inadequacy has the right to choose a new trial rather than the remittitur or additur.

In the instant case, RJR objected to the order of remittitur and was a party adversely affected under § 768.74(4), Fla. Stat. Thus, RJR was entitled to a new trial on damages.


 

 

This summary was prepared by Elizabeth Stuart of our firm.


Elizabeth Stuart

 

 


38 Fla. L. Weekly D2637a

 

Wrongful death -- Product liability -- Tobacco -- Damages -- Remittitur -- Defendant, who objected to trial court's remittitur order, was the "party adversely affected" under section 768.74(4) and was therefore entitled to new trial on damages -- Trial court erred in conferring only on plaintiff the right to choose between accepting remittitur and proceeding with new trial

R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. DIANE WEBB, as personal representative of the Estate of James Cayce Horner, Appellee. 1st District. Case No. 1D12-5063. Opinion filed December 17, 2013. An appeal from the Circuit Court for Levy County. Stanley H. Griffis, III, Judge. Counsel: Charles M. Trippe of Moseley Prichard Parrish Knight & Jones, Jacksonville, for Appellant. Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, James W. Gustafson of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, and David J. Sales of David J. Sales, P.A., Jupiter, for Appellee.

(MARSTILLER, J.) This is the second appeal arising from a jury verdict and damages award in the wrongful death action brought by Appellee, Diane Webb ("Webb"), against Appellant, R.J. Reynolds Tobacco Company ("RJR"). Webb sued RJR for the death of her father, James Horner, from lung cancer,1 and a jury awarded her $7.2 million in compensatory damages and $72 million in punitive damages. In R.J. Reynolds Tobacco Company v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012), we vacated the damages award because "[t]he amount of the compensatory damages suggest[ed] an award that [was] the product of passion . . . rather than evidence of [Mr. Horner's] illness, subsequent death, and the noneconomic consequences of the death itself." Id. at 339. We remanded to the trial court with directions to either grant RJR's motion for remittitur, or hold a new trial on damages. Id. at 340.

Back in the lower court, Webb filed a motion to set the remitted award to $4 million in compensatory damages and $25 million in punitive damages. RJR responded with a renewed motion for remittitur, seeking $250,000 or less in compensatory damages and $250,000 or less in punitive damages. The court entered an order styled, "Order of Remittitur or, Alternatively, for New Trial," remitting damages to the amounts Webb requested, reducing the $4 million compensatory damages figure to $3.6 million based on the jury's assigning Mr. Horner ten percent comparative fault. Importantly, the remittitur order stated, "Defendant, R.J. Reynolds Tobacco Company, is not entitled to a new trial on compensatory and punitive damages unless it is at the election of the Plaintiff" and gave Webb ten days to consent or object to the remittitur. (Emphasis added.) Webb consented, RJR objected, and the trial court entered an amended final judgment for a total $28.6 million in damages.

RJR appeals the amended judgment, arguing that the trial court erred as a matter of law by failing to hold a new trial on damages after RJR objected to the remitted damage amounts. We agree, and reverse.

Section 768.74, Florida Statutes, permits the trial court, upon a proper motion, to review damages awards "to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact." § 768.74(1), Fla. Stat. (2007). The statute further provides that "[i]f the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only." § 768.74(4), Fla. Stat. (2007) (emphasis added). From the emphasized statutory language, it would appear the question to be answered in this case is, who was the party adversely affected by the remittitur?

For guidance, we look to the Florida Supreme Court's opinion in Waste Management, Inc. v. Mora, 940 So. 2d 1105 (Fla. 2006), in which the court considered identical language in section 768.043, Florida Statutes,2 providing for remittitur or additur in damages actions arising out of the operation of vehicles. Pertinent to the scenario here, the supreme court stated:

Nor do we agree that only a party who receives "less in damages" can be affected by a remittitur, or only the party who has to pay more in damages can be affected by an additur. To the contrary, a defendant who has a jury award in an excessive amount of damages against the defendant can be a party adversely affected by a trial judge's remittitur that is too little to cure the excessiveness. Similarly, a plaintiff who has a jury award for inadequate damages on the plaintiff's behalf is a part adversely affected by a trial judge's additur that is too little to cure the inadequacy. In each case . . . the party complaining about a continued excessiveness or inadequacy has the right to choose a new trial rather than the remittur or additur.

Mora, 940 So. 2d at 1108-9 (emphasis added). Notably, the supreme court also stated: "We recognize that our decision means that only when the parties agree with the trial court's amount of remittitur or additur will the remittitur or additur be enforced in lieu of a new trial." Id. at 1109.

Relying on Mora, we conclude RJR was the "party adversely affected" under section 768.74(4) because it objected to the trial court's remittitur. RJR therefore was entitled to a new trial on damages, and the trial court erred in conferring only on Webb the right to choose between accepting the remittur and proceeding with a new trial. Accordingly, we reverse the amended final judgment, and remand this cause to the trial court to hold a new trial on damages.

REVERSED and REMANDED. (LEWIS, C.J., and OSTERHAUS, J., CONCUR.)

__________________
1. Webb sued as a member of the class described in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).

2. Compare § 768.043(1), Fla. Stat., at issue in Mora ("If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages."), and § 768.74(4), Fla. Stat., at issue in the instant case ("If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.").








* * *