DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

R.J. REYNOLDS TOBACCO COMPANY,

Appellant,

v.

BERTIE THOMAS, as Personal Representative of the

Estate of Marvin Thomas,

Appellee.

No. 4D17-3040

[February 13, 2019]

Appeal and cross-appeal from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case No.

07-CV-036432 (19).

William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta, 

Georgia, for appellant.

Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A.,

Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for

appellee.

GROSS, J.

In this Engle1 wrongful death action, R.J. Reynolds (“RJR”) appeals a final 

judgment awarding the plaintiff $2.2 million in compensatory damages after 

making a reduction for the decedent’s comparative fault. The plaintiff, Bertie 

Thomas, cross-appeals the trial court’s reduction of the compensatory damages 

award by the decedent’s share of comparative fault. We affirm on all issues raised 

by RJR without further comment, but we reverse on the cross-appeal and remand 

for reinstatement of the full value of the jury’s compensatory damages verdict.

By way of background, the jury returned a verdict finding in favor of the 

plaintiff on each claim, apportioning 45% of the fault to the decedent, determining 

that the total amount of compensatory damages was $4 million, and concluding 

that punitive damages were not warranted. Over the plaintiff’s objection, the trial 

court made a reduction for the decedent’s comparative fault and entered final 

judgment awarding the plaintiff $2.2 million in compensatory damages.

1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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Under the law in this district at the time this case was tried, an Engle plaintiff’s 

compensatory damages award had to be reduced by the smoker’s share of 

comparative fault even if the plaintiff prevailed on intentional tort claims. See

R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015) (“Schoeff 

I”).

However, the Florida Supreme Court later quashed Schoeff I and held that “the 

comparative fault statute does not apply to Engle progeny cases in which the jury 

finds for the plaintiff on the intentional torts such that the compensatory damage

awards in those cases are not subject to reduction.” Schoeff v. R.J. Reynolds 

Tobacco Co., 232 So. 3d 294, 298 (Fla. 2017) (“Schoeff II”). The Florida Supreme 

Court further explained that where the jury finds for the plaintiff on the 

intentional tort claims, the plaintiff’s compensatory damages award “may not be 

reduced” by comparative fault unless the plaintiff “waived the intentional tort 

exception.” Id. at 305. 

On the cross-appeal, the plaintiff argues that the trial court erred in reducing 

the compensatory damages award based on comparative fault where the jury 

found for the plaintiff on the intentional tort claims. We agree.

As an initial matter, the plaintiff did not waive the intentional tort exception 

to comparative fault. Throughout the litigation, the plaintiff steadfastly 

maintained her position that any compensatory damages award should not be 

reduced by comparative fault. Moreover, all of RJR’s waiver arguments based on 

the plaintiff’s trial conduct have been foreclosed by Schoeff II and subsequent 

case law applying that decision. See Schoeff II, 232 So. 3d at 306 (rejecting this 

court’s “theory of waiver” that was based on arguments substantially similar to 

those now raised by RJR in this appeal); Philip Morris USA, Inc. v. Gore, 238 So. 

3d 828, 831 (Fla. 4th DCA 2018) (“Here, the plaintiff’s arguments to the jury were 

similar to those in Schoeff that the Florida Supreme Court found to be insufficient 

to constitute a waiver of the intentional tort exception. Moreover, although the 

defendants now attempt to distinguish Schoeff on the basis that the verdict form 

here, unlike in Schoeff, asked jurors to apportion fault after the questions 

concerning the intentional tort claims, we are unpersuaded by this argument.”); 

Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1089 (11th Cir. 2018) (“It 

is true that this rhetorical question clearly compared Burkhart’s negligent 

conduct with Appellants’ intentional conduct. However, in light of the entire body 

of the trial record, we conclude that this statement cannot amount to a waiver of 

Burkhart’s apportionment rights with respect to her negligence claims.”). 

We next turn to the appropriate remedy for the error. Relying heavily upon 

Foreline Security Corp. v. Scott, 871 So. 2d 906, 911 (Fla. 5th DCA 2004), RJR 

contends that because the jury was instructed that its damages verdict would be 

reduced by comparative fault, the proper remedy for a reversal on this issue is a 

new trial limited to damages and comparative fault.
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In Philip Morris USA Inc. v. Martin, 43 Fla. L. Weekly D2747, D2749–50 (Fla. 

4th DCA Dec. 12, 2018), however, we recently rejected this identical argument 

and held the proper remedy for a trial court’s error in applying a comparative 

fault reduction to an Engle progeny plaintiff who prevailed on the intentional tort 

claims is reinstatement of the full amount of the jury verdict on compensatory 

damages, even if the jury was erroneously instructed that its compensatory 

damages award would be reduced by the smoker’s share of comparative fault. As 

we explained in Martin:

Here, the Florida Supreme Court’s elimination of the comparative 

negligence defense under the circumstances below leaves nothing for 

retrial or apportionment. The jury was instructed to award the 

compensatory damages they found to be attributable to the 

defendants—nothing less—nothing more. The fact that they were 

also instructed to determine the percentage of comparative 

negligence attributable to the plaintiff on a defense that the Florida 

Supreme Court has eliminated as applied here is of no consequence 

to the gross amount of compensatory damages awarded by the jury.

Moreover, it is a well-established presumption that a jury would have 

properly followed a trial court’s instructions. . . .

The jury was separately instructed to award the full amount of 

compensatory damages they found to be proximately caused by the 

defendants. They were also separately instructed to determine what 

percentage of comparative negligence, if any, they attributed to the 

plaintiff. They were instructed not to reduce the total amount of 

compensatory damages by the amount of comparative negligence, 

leaving it to the court to reduce any amount of comparative fault. In 

the absence of any evidence of wrongdoing by the jury, we must 

accept the well-established presumption that the jury properly 

followed the trial court’s instructions.

Id. at D2750 (citations omitted).

In short, we presume that the jury has followed the court’s instructions, not 

that the jury ignored the instructions and manipulated the damages award based 

on its determination of comparative fault. Accordingly, we reverse and remand 

on the cross-appeal “with instructions for the trial court to award compensatory 

damages in the full amount of the jury’s verdict.” Gore, 238 So. 3d at 831.

Affirmed on main appeal; reversed and remanded on cross-appeal.

CONNER and KLINGENSMITH, JJ., concur.

* * *
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Not final until disposition of timely filed motion for rehearing.