[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14316

________________________

D.C. Docket No. 3:09-cv-10048-WGY-JBT

JAMES SMITH, SR.,

 Plaintiff-Appellee,

versus

R.J. REYNOLDS TOBACCO COMPANY, et al.,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(January 25, 2018)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

JULIE CARNES:

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This is an Engle progeny case

1 brought by plaintiff James Smith, Sr. against 

defendant R.J. Reynolds Tobacco Co. (“Defendant”) to recover damages based on 

the death of his wife, Wanette Smith, from tobacco-related diseases caused by Mrs. 

Smith’s decades-long history of smoking Defendant’s cigarettes. We face only 

one issue:2

 whether the district court should have reduced the jury’s compensatory 

damages award based on the degree of fault the jury attributed to Mrs. Smith.

I. Issues in This Appeal

In his wrongful death action, Smith asserted both intentional tort claims 

(fraudulent concealment and conspiracy to fraudulently conceal) and “nonintentional” tort claims (negligence and strict liability). In a negligence action in 

which both parties have acted negligently, Florida law requires that the plaintiff’s 

 1 “Engle progeny” cases arise from a Florida class action filed in 1994 against major tobacco 

companies, including Defendant, alleging that members of the class “were unable to stop 

smoking because they were addicted to nicotine and, as a result, developed medical problems 

ranging from cancer and heart disease to colds and sore throats.” Liggett Grp. Inc. v. Engle, 853 

So. 2d 434, 440 (Fla. 3d DCA 2003), approved in part and quashed in part by Engle v. Liggett 

Grp., Inc., 945 So. 2d 1246, 1263 (Fla. 2006). The extensive history of this litigation need not be 

recited in detail here, as it is not pertinent to the only issue requiring our attention. What matters 

for this case is that the Florida Supreme Court dissolved the class after the original jury made 

certain findings about tobacco and the defendants’ conduct, granted those findings preclusive 

effect, and ordered that qualifying class members pursue their suits against the defendants in 

individual, “progeny” actions. Engle, 945 So. 2d at 1276–77; see also Philip Morris USA, Inc. v. 

Douglas, 110 So. 3d 419, 436 (Fla. 2013) (same). This is one of those progeny cases.

2 In a short discussion in its opening brief, Defendant acknowledged that a due process 

challenge to use of the Engle findings in progeny case trials could not succeed, given this Court’s 

decision in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), but Defendant

nonetheless indicated it wished to “preserve that argument.” Since briefing in this case, our 

Court has reexamined Walker. See Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th 

Cir. 2017) (en banc). Defendant has not pursued a due process challenge in this case in the 

aftermath of Graham nor further addressed the issue. Neither do we. 

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damages be reduced proportionately to the plaintiff’s own fault in causing his 

injuries. By its own terms, however, the Florida statute requiring such reduction is 

not applicable to an action based on an intentional tort. 

The jury found for Smith on all claims—including the intentional tort 

claims—awarding him $600,000 in compensatory damages and $20,000 in 

punitive damages. Responding to the court’s instruction that required it to gauge 

the degree of responsibility Mrs. Smith bore for her injuries, the jury assessed Mrs. 

Smith with 45% of the fault, laying the remaining 55% of blame on Defendant. 

Defendant argued that, given this jury finding, the compensatory damages should 

be reduced by 45%, resulting in a compensatory damages award of $330,000. The 

district court, however, agreed with Smith that because there were intentional tort 

claims on which Smith prevailed, Defendant was not entitled to a reduction of the 

compensatory damages award. Defendant contends that the district court 

misapplied Florida law.

Second, even if Florida’s comparative negligence statute disallows a 

reduction of the jury’s compensatory damages figure based on Smith’s 

comparative fault, Defendant contends that Smith nonetheless forfeited his ability 

to insist on adherence to Florida law because Smith suggested to the jury that any 

award they made would be reduced based on his wife’s own negligence. 

Defendant says that besides misleading the jury, Smith’s insistence that his wife’s 

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own fault should be something the jury considered in arriving at a decision on 

damages permitted Smith to bolster his own position and gain favor with the jury, 

notwithstanding his actual position before the court that there could be no 

reduction of damages if the jury found Defendant liable on the intentional tort 

claims. Moreover, Defendant complains, the district court instructed the jury that 

it would reduce the award based on the jury’s finding of any fault on Mrs. Smith’s 

part, but then reversed course after the verdict and ignored its own instruction. In 

essence, Defendant argues that, combined with Smith’s disingenuous argument, 

the court’s instruction likely impacted the jury’s calculation of the compensatory 

damages award. Defendant contends that the court should have kept its word and 

reduced the damages award, as it told the jury it would do. 

As to Defendant’s first argument, the Florida Supreme Court has recently 

resolved an intermediate appellate court split and ruled Smith’s way: when a 

complaint in an Engle case contains both negligence and intentional tort claims, a 

plaintiff’s success on an intentional tort claim—no matter whether the action in its 

entirety could arguably be characterized as a negligence action—defeats a 

defendant’s claim to reduction of a compensatory damages award based on the 

plaintiff’s degree of fault. 

As to the district court’s misleading instruction to the jury, that instruction 

was in fact incorrect. But because it was Defendant who requested this

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instruction—not Smith, who requested an instruction that would have more 

accurately explained to the jury the possibility that its proportional assessment 

might have no effect on the damages award—Defendant cannot now complain. 

And as to Smith’s concession to the jury that it should consider Mrs. Smith’s own 

fault and attribute an appropriate percentage of responsibility to her—which also 

happened to be Defendant’s argument—we conclude that Smith’s argument was 

consistent with the very instruction that Defendant had requested. We find no 

waiver by Smith. Accordingly, we affirm the district court’s decision not to reduce 

the compensatory damages award. We explain. 

II. Trial Proceedings Giving Rise to the Alleged Error

Per his complaint, Smith envisioned that comparative negligence by his 

deceased wife would be an appropriate matter for the jury to determine. Although 

the parties do not focus on the evidence at trial on this subject, it is clear from a 

review of the closing arguments that evidence was elicited concerning Mrs. 

Smith’s own responsibility for her injuries. What is important in understanding the 

present issues is the position each party took as to the appropriate instructions to 

give the jury on this matter.

The first thing worth noting is that neither party requested the instructions 

one might expect if one assumes that a plaintiff typically seeks to obtain the 

highest possible award for compensatory damages from the jury and that a 

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defendant aims for the lowest award. That is, underlying Defendant’s arguments 

here is the fear that, in trying to decide something as subjective as the monetary 

value of a given person’s life, if a jury is told that the monetary value it sets will be 

reduced by whatever percentage of responsibility it assigns to the plaintiff, the jury 

may tend to go higher in pegging that life’s value than it might otherwise find 

warranted because the jury knows that this valuation is not the number that will 

ultimately control. So—particularly when it is uncertain whether the trial court 

will actually be permitted to reduce a damages award based on a jury’s finding of 

comparative fault—it follows that a defendant would likely want the jury informed 

that its percentage reduction might never be applied so that the jury will understand 

the significance of the number it assigns to the value of the plaintiff’s life and will 

not go higher than what it actually thinks that value to be, which a defendant would 

fear the jury otherwise might do if it expects that its award will be reduced by the 

percentage it has designated. Likewise, under the same circumstances, a plaintiff 

might well prefer that the jury believe the value it ascribes to the decedent’s life 

will definitely be reduced by the percentage of fault ascribed to the latter: hoping

that the jury may well go higher on its valuation assessment than it would were 

there no possibility of a reduction based on the decedent’s fault. 

Yet, in this case—for reasons perhaps understandable on Plaintiff’s part but 

less so on Defendant’s part—the parties played against type, going the opposite 

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direction than that indicated above. Specifically, in his first proposed instruction, 

Smith requested that the court reveal to the jury that allocating a percentage of 

fault to Mrs. Smith would not necessarily mean that the compensatory damages 

would be reduced. Smith indicated that instructions in other Engle cases had been 

more cryptic on this matter and that “to reflect Florida law and to avoid any 

confusion, [Smith’s] Proposed Instructions and Verdict Form do not state that 

damages for all claims will be reduced by the percentage of fault on the decedent

. . .” Instead, Smith recommended that the following instruction should be given:

Allocating a percentage of fault to [decedent’s name] will only reduce 

the amount of the recovery on some claims. Under the law, some 

claims are subject to reduction due to the fault of the claimant and 

others are not. In other words, if you find that [decedent’s name] was, 

for example, 50% responsible for [his/her] own death, you would fill 

in that percentage as your finding on the verdict form. The Court will 

enter a judgment based on your verdict and on entering judgment will 

make any reduction required by law to reduce the damages by the 

percentage of fault that you find is chargeable to [decedent’s name].

Defendant’s proposed instructions, however, were silent as to any possibility that 

the percentage of fault attributed to Mrs. Smith would not automatically result in a 

reduction of the compensatory damages. 

Thereafter, the district court directed the parties to submit a different set of 

proposed instructions that more closely complied with the standard instructions 

given in another federal Engle case. Smith and Defendant jointly presented a set of 

instructions that had been used in two previous federal Engle progeny cases, with 

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any objections listed. As to the instruction on comparative fault, the prior-case 

instructions included no warning to the jury that its calculation of Mrs. Smith’s 

fault might not actually impact the recovery. Given that omission, Smith sought to 

add language that he believed would so alert the jury. Smith explained: 

This language clarifies that comparative fault does not apply to 

intentional torts. . . . The instructions given in Pickett and Walker, 

however, did not make it clear that if the jury found liability for fraud 

or conspiracy, damages would not be reduced by the portion of fault 

attributable to the decedent. Thus to reflect Florida law and to avoid 

any confusion, this language modeled after instructions used in state 

court Engle progeny litigation is necessary and appropriate.

Yet, consistent with its legal contention that a comparative negligence 

finding by the jury does automatically result in a proportionate reduction of 

compensatory damages on all claims, Defendant objected to language intended to 

alert the jury that a reduction based on its finding of relative fault would not 

necessarily apply to all claims, because “it is nonstandard, misleading and 

confusing to the jury, contrary to Florida law, and an unjustified departure from the 

instructions given in federal Engle progeny trials to date.” 

During the instruction conference with the district court, Smith explained his 

concern if the court instructed the jury that the court would reduce the damages to 

the extent the jury found Mrs. Smith to have been at fault. Smith made clear his 

position that the comparative fault statute applying to negligence claims does not 

apply if the jury also finds for a plaintiff on an intentional tort claim. Yet, 

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Defendant’s proposed instruction offered no such caveat. Smith expressed his 

concern that, if given as written, Defendant would later argue that Smith had 

waived his right to argue that the damages should not be reduced upon a finding of 

liability on the intentional tort claims. 

Indicating disagreement that a reduction of damages would be precluded 

based on a finding of its liability on an intentional tort, Defendant objected to an 

instruction that alerted the jury that its compensatory damages’ calculation might 

not be reduced based on the decedent’s own negligence. Defendant assured the 

court and Smith that Defendant would not later argue waiver simply because Smith 

did not object to Defendant’s requested instruction. Having trouble understanding 

any further concern by Smith on this subject, the district court opined that “if the 

law is that there’s no comparative negligence in an intentional tort, then we don’t 

apply percentage of fault.” Smith explained that in other cases in which the jury 

has been instructed that damages will be reduced based upon a finding of fault by 

the plaintiff, Defendant had argued that such a reduction must occur, even if an 

intentional tort was found. “And that’s what I’m trying to protect against.” The 

district court inquired whether Smith sought a stipulation against such an 

argument. Defendant responded, “By the fact that they have objected to this, we 

are no longer in a position and would not anyhow argue that by the giving of this 

instruction they are somehow precluded from arguing their view of the 

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comparative fault statute.” And both the court and the parties indicated that this 

concluded the matter. 

The court then instructed the jury pursuant to the instruction requested by 

Defendant: “Allocating a percentage of fault to Mrs. Smith will . . . reduce the 

amount of Mr. Smith’s recovery . . . . [T]he Court will prepare the judgment to be 

entered and will reduce Mr. Smith’s total damages by the percentage that you 

insert.” The jury found Defendant liable on the intentional torts, but also found 

that Mrs. Smith was 45% responsible for her injuries. After the verdict, Defendant 

requested that the court reduce the compensatory damages proportionately with 

Mrs. Smith’s own fault, “as in almost all of the trials where this issue has arisen.” 

As Smith had always indicated he would do, Smith objected to any reduction, 

given the jury’s finding of liability on the intentional tort claims. Yet, contrary to 

Defendant’s representation at trial that Smith would not be precluded from 

advocating his interpretation of the comparative fault statute should the jury find 

Defendant liable on an intentional tort, that is exactly the argument Defendant 

made. Defendant contended that by arguing that the jury should consider 

apportionment and by presenting a verdict form that did not alert the jury that its 

assessment of comparative fault would not be applied if liability was based on both 

negligence and intentional torts, Smith had thereby waived any objection to the 

application of comparative fault to all claims found by the jury. 

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The district court heard oral argument on the matter, focusing first on the 

legal question whether the comparative negligence statute should even apply in a 

situation such as this. Learning that Florida courts were not consistent in how they 

had handled the issue, the court noted that “there’s a great deal of intuitive appeal 

about the defendant’s position” in that while Defendant’s concealment was an 

intentional tort, Mrs. Smith herself had made an intentional decision to continue to 

smoke: acts that could be compared. But ultimately, without guidance from 

Florida appellate courts, the district court interpreted the statute as disallowing any 

reduction based on the negligence of the plaintiff when the jury had also found a 

defendant liable for an intentional tort. 

Turning next to the question whether Smith had waived the right to argue 

that a reduction of damages was prohibited by the statute, Defendant contended

that, by acknowledging to the jury its responsibility to apportion fault, Smith could 

not, post-verdict, switch gears and argue that fault should not be apportioned. 

Moreover, Defendant noted the unfairness of allowing a plaintiff to gain credibility 

with a jury by conceding his own fault and telling the jury that it should consider 

that fault, when all the while the plaintiff knows that this acceptance of 

responsibility is a sham because any reckoning of that fault by the jury will not be 

implemented in the final judgment. 

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The court expressed sympathy for Defendant’s position: “I couldn’t agree 

with you more. It probably does have an influence, and I think the plaintiffs are 

wise to take that approach.” Nevertheless, recalling Defendant’s assurance during 

the instruction colloquy that Smith would not be deemed to have waived his right 

to argue against a reduction of damages, the district court was unpersuaded by 

Defendant’s contrary post-verdict argument. Thereafter, the district court entered a 

written order consistent with its oral conclusions expressed at the hearing, and it let 

Smith’s $600,000 compensatory damages verdict stand, unreduced by the 45% 

responsibility the jury had assigned to Mrs. Smith. 

III. Florida Law Governing Comparative Fault

We review de novo a district court’s interpretation of a state law. McMahan 

v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). Florida Statute § 768.81 provides 

for a reduction of damages in a negligence action for a plaintiff who has herself 

acted negligently, in proportion to the plaintiff’s degree of fault. Specifically, “[i]n 

a negligence action, contributory fault chargeable to the claimant diminishes 

proportionately the amount awarded as economic and noneconomic damages for 

an injury attributable to the claimant’s contributory fault, but does not bar 

recovery.” Fla. Stat. § 768.81(2) (2011). The statute provides that a “[n]egligence 

action” means “without limitation, a civil action for damages based upon a theory 

of negligence, strict liability, products liability, professional malpractice . . . or 

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breach of warranty and like theories.” Id. § 768.81(1)(c). A “‘[p]roducts liability 

action’ means a civil action based upon a theory of strict liability, negligence,

breach of warranty, nuisance, or similar theories for damages caused by the 

manufacture, construction, design, formulation, installation, preparation, or 

assembly of a product.” Id. § 768.81(1)(d). On the other hand, “This section does 

not apply . . . to any action based upon an intentional tort.” Id. § 768.81(4).

Finally, “[t]he substance of an action, not the conclusory terms used by a party,”

determines whether an action is a negligence action or a products liability action. 

Id. § 768.81(1)(c) and (d).

It had been Defendant’s position, during trial and on appeal, that Smith’s 

action, at its heart, was a products liability and negligence action—not an 

intentional torts action—notwithstanding the existence of claims based on 

intentional and fraudulent concealment. Florida intermediate courts of appeal had 

been split on the question whether an Engle progeny action that contains both 

negligence/strict liability claims and intentional tort claims can nevertheless be 

deemed a negligence/products liability action for purposes of qualifying for 

reduction of damages based on the plaintiff’s own negligence.

But there is no point recounting the different arguments each side has 

mustered because the Florida Supreme Court, very recently, resolved the issue 

decisively. That court held that when an Engle progeny case contains both 

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negligence and intentional tort claims and when the jury has found for the plaintiff 

on an intentional tort claim, then the compensatory damages award cannot be 

reduced based on the plaintiff’s percentage of fault, unless the plaintiff waived the 

intentional tort exception. Schoeff v. R.J. Reynolds Tobacco Co., 2017 WL 

6379591, at *7, ___ So. 3d ___ (Fla. Dec. 14, 2017). Given the Florida Supreme 

Court’s holding, Defendant’s interpretation of this Florida statute cannot prevail. 

Therefore, the district court properly interpreted Florida law in ultimately deciding 

that, pursuant to that law, Smith’s damages could not be reduced, even though the 

jury found Mrs. Smith to be 45% at fault for her injuries. 

IV. Whether Smith’s Trial Conduct or the District Court’s Failure to 

Follow Its Own Instruction Regarding Reduction of Compensatory 

Damages Entitles Defendant to a Reduction of Those Damages

The Florida Supreme Court having decided that Defendant’s interpretation 

of the Florida law on this point is wrong, Defendant is left with two arguments for 

nonetheless reducing the compensatory damages based on plaintiff’s own 

contributory negligence: (1) Smith’s conduct in arguing to the jury that it would 

be able to reduce his compensatory damages based on his wife’s own contributory 

negligence now estops him from taking a different position and (2) having 

instructed the jury that it would reduce the damages by the percentage of 

responsibility the jury assigned to Mrs. Smith for her injuries, the district court was 

bound to comply with its own ruling. 

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A. Smith’s Conduct At Trial

Defendant contends that Smith waived his right to non-apportioned damages 

due to his use of Mrs. Smith’s comparative fault as a litigation tactic. That is, 

Defendant avers that Smith disingenuously argued to the jury that it should take his 

wife’s own negligence into account in awarding damages, when, in fact, his true 

position was that upon a finding by the jury of liability on the intentional tort 

claims, the jury’s finding of partial responsibility on Mrs. Smith’s part would be a 

futile decision with no consequences. The district court found no waiver.

We review the district court’s application of waiver for abuse of discretion. 

Proctor v. Fluor Enter., Inc., 494 F.3d 1337, 1351 (11th Cir. 2007).

“Waiver is the voluntary, intentional relinquishment of a known right.” Glass v. 

United of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994); Wood v. 

Milyard, 566 U.S. 463, 470 n.4 (2012) (“A waived claim or defense is one that a 

party has knowingly and intelligently relinquished . . . .”). “In diversity of 

citizenship actions, state law defines the nature of defenses, but the Federal Rules 

of Civil Procedure provide the manner and time in which defenses are raised and 

when waiver occurs.” Morgan Guar. Trust Co. of New York v. Blum, 649 F.2d 

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342, 344 (5th Cir. Unit B 1981).3

 Along with the intent of the party against which 

waiver is asserted, “the reality of notice and the reality of prejudice in fact must be 

considered.” Proctor, 494 F.3d at 1352. The party asserting waiver bears the 

burden of proof. See Glass, 33 F.3d at 1348. 

Defendant argues that state law governs the substantive standards used to 

determine whether Smith waived his right to contest the apportionment of damages 

based on his wife’s fault; Smith argues that federal law applies. At the time that 

Defendant argued that state law authority controlled, there was Florida authority 

favoring its position. Since that time, however, the Florida Supreme Court has 

issued an opinion that greatly undermines Defendant’s reliance on Florida law for 

its waiver argument. 

As noted, the Florida Supreme Court recently decided that the Florida 

comparative fault statute does not apply to reduce a plaintiff’s damages on a 

negligence claim when the jury has also found liability based on an intentional tort. 

See Schoeff, 2017 WL 6379591, at *7. The Florida Supreme Court nevertheless 

held open the possibility that a plaintiff could waive the intentional tort exception. 

Id. (“Because the jury found for Mrs. Schoeff on the intentional tort claims in this 

case, her compensatory award may not be reduced unless she waived the 

 

3

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court 

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 

October 1, 1981.

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intentional tort exception.”) The court noted that three different Florida 

intermediate appellate courts (district courts) had found that a plaintiff could waive 

the intentional tort exception under certain circumstances. The court noted that one 

of those district courts—the First District—found that the trial court did not abuse 

its discretion in finding waiver where the plaintiff had assured the jury throughout 

trial that her deceased spouse was partially at fault for his illness, where the court 

had instructed the jury that it would reduce the compensatory damages by 

whatever percentage of fault it attributed to the smoker, and where the plaintiff 

never informed the jury of the potential inapplicability of the comparative fault 

statute. Id. at *8 (citing to R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 475 

(Fla. 1st DCA 2014)). The Florida Supreme Court further noted that the same 

district court found no waiver in a case containing different facts. In that case, R.J. 

Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), the plaintiff 

had made clear in its complaint that fault should not be apportioned on intentional 

torts, the plaintiff had never argued to the jury or court that his damages should be 

reduced by his portion of the fault, and the defendants had agreed to the verdict 

form. Schoeff, supra.

The Florida Supreme Court found the case before it to be more similar to 

Sury than to Hiott. Id. It noted that, like the plaintiff in Sury, Schoeff’s complaint 

made clear that she opposed apportionment of fault on the intentional tort counts. 

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Further, the verdict form in the Schoeff case listed the finding on the intentional

tort claims after the question on the negligence claims and its accompanying 

question on apportionment of fault. Id. Finally, the defendants in Schoeff had 

agreed to the verdict form that was used. 

Were that all the court stated, we might conclude that the Florida Supreme 

Court envisioned the possibility of waiver based on different facts. But, in the next 

paragraph, the court stated, with no explanation of its reasoning, that it disagreed:

with the Fifth District in Green and the First District in Hiott to the 

extent they held that the intentional tort exception is waived when an 

Engle progeny plaintiff argues comparative fault on the negligence 

counts, and we reject the Fourth District majority’s theory of waiver 

below. Based on the foregoing, we find that the trial court abused its 

discretion in finding that Mrs. Schoeff waived the intentional tort 

exception.

Id. Given the absence of explanation why it disagreed with the above intermediate 

Florida courts of appeal, it is unclear in what situations, if any, the Florida 

Supreme Court might find waiver to have occurred. But, at the least, one can fairly 

infer that the court is not keen on the notion of waiver in this context. And, as 

Defendant argues that state law controls, this is not a helpful inference.

As noted, Smith argues that federal law applies, albeit there appears to be no 

federal precedent on point. Even assuming that federal law would control, not 

Schoeff, we find no waiver here. We repeat: waiver is the voluntary, intentional 

relinquishment of a known right. It is difficult to conclude that a litigant who has 

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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 is particularly so when defense counsel indicated at 

trial that it would not later argue that Plaintiff had waived his right to oppose 

apportionment. 

Defendant argues that its promise not to argue waiver was limited to the 

question of the now-problematic instruction given to the jury, to which, as we have 

explained, Smith actually objected. Instead, Defendant says, its waiver argument 

is based on the fact that Smith admitted to the jury that his wife bore some 

responsibility for her injuries, all the while knowing that Smith would object to any 

actual reduction should the jury find liability on the intentional tort. But what else 

was Smith to do? The question of comparative fault was before the jury, and he

had to argue his position on that matter. And his position, actually, was to 

minimize as much as possible his wife’s fault, which is what one would expect him 

to do. 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 and for the court to correct 

any misrepresentation. There was no objection and no correction. It was not 

Smith’s job to explain to the jury what would happen if they found Defendant 

liable on the intentional torts. It is the court that instructs the jury. And, as we 

have noted, Smith actually sought an instruction that would have informed the jury 

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that damages would not necessarily be reduced upon the jury’s finding of 

negligence on Mrs. Smith’s part. Defendant, however, objected to that requested 

instruction, persuading the district court to give the problematic instruction that led 

to the jury confusion about which it now complains. Finally, the verdict form here 

could clearly have been drafted in a way that minimized, or even eliminated, any 

jury confusion. Defendant did not object to the verdict form that was given to the 

jury.

For these reasons, we conclude that Smith did not waive his right to insist 

that the Florida intentional tort exception be applied to prevent reduction of 

compensatory damages based on Mrs. Smith’s degree of fault. 

B. Impact of Incorrect Instruction Given by District Court

Even if Smith did not waive his right to insist on application of the 

intentional tort exception, Defendant argues that reversible error occurred when the 

district court gave the jury an instruction that likely had an impact on their 

calculation of damages, only to abandon that instruction after the verdict. Given 

the Florida Supreme Court’s recent ruling in Schoeff, a jury’s finding of liability on 

an intentional tort means that the compensatory damages award in an Engle case 

cannot be reduced even when the jury has found that the plaintiff’s own fault 

contributed to her injuries. For that reason, in assuring the jury that the damages 

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award would be reduced proportionally with the jury’s finding of Mrs. Smith’s 

own negligence, the district court clearly gave an incorrect instruction. 

Yet Defendant finds itself in a weak position to challenge the instruction. 

Typically, a challenge to a jury instruction arises when the party complaining on 

appeal is either damaged by an instruction to which he has objected or when the 

court has refused to give an instruction that the complaining party has requested. 

Here, the district court did not refuse to give an instruction that Defendant 

requested or give an instruction to which Defendant objected. The court gave the 

exact instruction requested by Defendant. 

But Defendant’s argument here is more nuanced than merely complaining

about a jury instruction. At the time that this case was tried, Florida law was 

unclear as to whether a finding of liability on an intentional tort would prevent a 

reduction of damages for a plaintiff who was found to be contributorily negligent. 

Defendant argues that, by deciding to give Defendant’s proposed instruction—an 

instruction that we will assume could have had an impact on the jury’s calculation 

of damages—the district court was obliged to follow through on that instruction. 

According to Defendant, even though the district court later changed its mind as to 

the correctness of that instruction, the court could not subsequently unring the bell 

it had tolled before the jury, and its renunciation of its earlier decision potentially

prejudiced Defendant in terms of the damages awarded by the jury.

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There is some facial appeal to Defendant’s argument, as a general matter. 

Defendant’s own conduct in this case, however, undermines what might otherwise 

be a problematic decision by the district court. In particular, it was very uncertain 

whether Defendant’s interpretation of Florida law would ultimately win the day in 

the Florida court system. That being so, Smith took a prudent position, advocating 

for an instruction that would better protect Defendant regardless of how the Florida 

law issues might ultimately be decided. Smith wanted the jury to know that its 

attribution of fault to his wife would not necessarily result in a reduction of his 

damages. It was Defendant who aggressively sought an instruction that it knew 

could well impact the jury’s calculation of damages in a way that would disfavor 

Defendant should Florida law not be interpreted the way it hoped. It is hard to 

understand why Defendant did so. 

But even leaving aside Defendant’s pivotal role in creating this problem, we 

will assume for purposes of this appeal that reversible error can potentially result 

when a district court, post-verdict, renounces an instruction it gave the jury and 

thereby prejudices the party at whose request the instruction was given. 

Nonetheless, Defendant’s suggested remedy is not apt. In particular, Defendant 

asks that compensatory damages be reduced by the 45% of fault the jury imputed 

to Mrs. Smith, even though it is now clear that such a reduction does not comply 

with Florida law. But that would not be the correct remedy here even if we 

Case: 13-14316 Date Filed: 01/25/2018 Page: 22 of 23 
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accepted Defendant’s argument. 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. Notably, Defendant never requested a new trial before the 

district court, nor has Defendant here requested remand for a new trial on the 

question of damages.4

 The relief Defendant requests—a reduction of damages in 

violation of Florida law—is obviously not apt.5

 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. 

V. Conclusion

For the above reasons, we AFFIRM the district court.

 

4

 On appeal, Defendant has asked, should we reject its argument that compensatory damages 

must be reduced as a matter of law, that we remand to allow the district court to reassess its 

rejection of Defendant’s waiver argument in light of two intermediate Florida appellate court 

decisions. Those decisions having now been disavowed by the Florida Supreme Court, there 

would be no point to that remand. 

5

 And how unfair it would be to Smith to summarily reduce his damages based on an incorrect 

instruction requested by Defendant, instead of, at the least, giving Smith a second shot before a 

jury that was properly instructed. 

Case: 13-14316 Date Filed: 01/25/2018 Page: 23 of 23