Supreme Court of Florida

____________

No. SC21-175

____________

BRINDA COATES, etc.,

Petitioner,

vs.

R.J. REYNOLDS TOBACCO COMPANY,

Respondent.

January 5, 2023

POLSTON, J.

In R.J. Reynolds Tobacco Co. v. Coates, 308 So. 3d 1068 (Fla. 

5th DCA 2020), the Fifth District Court of Appeal reversed as

excessive a punitive damages award that exceeds the net

compensatory damages award by a ratio of 106.7 to 1. In so ruling, 

the district court certified a question of great public importance.1

308 So. 3d at 1076.

In passing upon the certified question, the Fifth District 

addressed the Florida and federal standards for evaluating whether 

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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a punitive damages award is excessive, and ultimately certified this 

question:

When other factors support the amount of punitive 

damages awarded, but the award is excessive compared 

to the compensatory award, does the amount of punitive 

damages that may legally be imposed for causing the 

death of a human being depend on the actual amount of 

compensatory damages awarded to the decedent’s estate, 

even when that compensatory award is modest and the 

punitive award would be sustainable compared to awards 

in other cases for comparable injuries caused by 

comparable misconduct?

Coates, 308 So. 3d at 1076.

Under Florida law, although the trial court has broad 

discretion in ruling on a motion for remittitur of a damages award, 

that discretion is constrained by statutory criteria that must be 

considered in determining whether the award is excessive. See

Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 308 (Fla. 

2017). Because the Florida Statutes require us to conclude that a 

punitive damages award in a wrongful death action must bear a 

reasonable relation to the amount of damages proved and the injury 

suffered by the statutory beneficiaries, we decline to further analyze 

the issue as a matter of Florida or federal constitutional law. See In 

re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (“[W]e have long 
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subscribed to a principle of judicial restraint by which we avoid 

considering a constitutional question when the case can be decided 

on nonconstitutional grounds.”). Accordingly, we rephrase the 

certified question as follows:

Does the trial court in a wrongful death action abuse its 

discretion by denying remittitur of a punitive damages 

award that does not bear a reasonable relation to the 

amount of damages proved and the injury suffered by the 

statutory beneficiaries?

As explained below, our answer to the rephrased question is

yes, and because no reasonable trial court could have concluded 

that the necessary relation exists in this case, we hold that the trial 

court abused its discretion by denying remittitur of the excessive 

award. Accordingly, we approve the Fifth District’s decision 

reversing the punitive damages award and remanding for further 

proceedings to the extent the district court’s decision is consistent 

with this opinion.

I. BACKGROUND

This case involves a non-Engle2 wrongful death action that is 

governed by the 1997 version of the Florida Statutes based on the 

2. Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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date of the decedent’s death. Coates, 308 So. 3d at 1070 n.1, 1071. 

In the operative complaint filed in the trial court, the plaintiff

Brinda Coates, individually and as the personal representative of 

the estate of her sister, Lois Stucky, alleged that Ms. Stucky died as 

a result of lung cancer caused by smoking cigarettes and sought 

relief from the defendant R.J. Reynolds Tobacco Company (RJR)

based on four theories: (1) negligence, (2) strict-liability design 

defect, (3) fraud, and (4) conspiracy.

The jury found for Ms. Coates on the strict liability theory but 

rejected RJR’s liability under the other three theories. The jury 

further found that each of Ms. Stucky’s three adult children 

sustained $100,000 in damages, for a total of $300,000. Id. at 

1070. The jury’s verdict specified that these were “the total 

amount” of damages sustained by Ms. Stucky’s children “for the 

loss of parental companionship, instruction[,] and guidance, and 

from their mental pain and suffering as a result of Lois Stucky’s 

lung cancer and death.” However, the jury also found that Ms. 

Stucky’s negligence caused 50% of the damages, which reduced the

total compensatory damages to $150,000. Coates, 308 So. 3d at 
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1070. Finally, the jury found that punitive damages were 

warranted and ultimately awarded $16 million. Id.

RJR filed a motion for new trial or remittitur, arguing that the 

punitive damages award was excessive. Id. In an unelaborated 

order, the trial court denied RJR’s motion, id. at 1071 n.3, and then

entered a final judgment against RJR. 

RJR appealed to the Fifth District, “challeng[ing] the punitive 

damages award as excessive, particularly when considered in 

relation to the $150,000 net compensatory damages award, and 

argu[ing] that the trial court erred in denying its motion for new 

trial or remittitur.” Id. at 1071. After concluding that the punitive 

damages award is excessive under both Florida and federal law, the 

Fifth District reversed the award and remanded “for entry of an 

order of remittitur or, if remittitur is rejected by either party, a new 

trial solely on the amount of punitive damages.” Id. at 1076. In so 

holding, the Fifth District certified to this Court the question of 

great public importance that we have rephrased and limited to 

Florida law as set forth above.
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II. ANALYSIS

The rephrased question presents a pure question of law that 

we review de novo. See Townsend v. R.J. Reynolds Tobacco Co., 192 

So. 3d 1223, 1225 (Fla. 2016). To explain why we answer it in the 

affirmative, we first address Florida law requiring a reasonable 

relationship between punitive damages and the amount of damages 

proved and the injury suffered. Then, we explain why the rule is no 

different in a wrongful death action. Finally, we apply Florida law 

to the undisputed facts of this case to conclude that the trial court 

abused its discretion by denying remittitur of the excessive punitive 

damages award.

A. Florida law requires a reasonable relationship between 

punitive damages and the amount of damages proved and the 

injury suffered.

The rephased question implicates two statutes, sections 

768.73 and 768.74, Florida Statutes (1997), that govern review of 

the punitive damages award at issue.3 Therefore, we begin with 

3. Since 1997, the first statute, section 768.73, has been 

substantially amended. See § 768.73, Fla. Stat. (2021). The second 

statute, section 768.74, remains the same. See § 768.74, Fla. Stat. 

(2021).
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their text. See Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 

946 (Fla. 2020) (explaining that in interpreting a statute this Court 

“follow[s] the ‘supremacy-of-text principle’—namely, the principle 

that ‘[t]he words of a governing text are of paramount concern, and 

what they convey, in their context, is what the text means’ ”) 

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 56 (2012)).

First, section 768.73, Florida Statutes (1997), addresses

Florida’s limitation on punitive damages, and subject to one 

exception, caps a punitive damages award in relation to the 

compensatory damages award at a 3:1 ratio:

(1) (a) In any civil action based on negligence, strict 

liability, products liability, misconduct in commercial 

transactions, professional liability, or breach of warranty, 

and involving willful, wanton, or gross misconduct, the 

judgment for the total amount of punitive damages 

awarded to a claimant may not exceed three times the 

amount of compensatory damages awarded to each 

person entitled thereto by the trier of fact, except as 

provided in paragraph (b). However, this subsection does 

not apply to any class action.

(b) If any award for punitive damages exceeds the 

limitation specified in paragraph (a), the award is 

presumed to be excessive and the defendant is entitled to 

remittitur of the amount in excess of the limitation 

unless the claimant demonstrates to the court by clear 

and convincing evidence that the award is not excessive 
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in light of the facts and circumstances which were 

presented to the trier of fact.

(c) This subsection is not intended to prohibit an 

appropriate court from exercising its jurisdiction under s. 

768.74 in determining the reasonableness of an award of 

punitive damages that is less than three times the 

amount of compensatory damages.

§ 768.73(1)(a)-(c).

Second, section 768.74, Florida Statutes (1997), which is

Florida’s remittitur and additur statute, requires the trial court, 

upon a proper motion, to review an award of money damages “to 

determine if [the] amount is excessive . . . in light of the facts and 

circumstances which were presented to the trier of fact,” § 

768.74(1), and to “order a remittitur” if it “finds that the amount 

awarded is excessive,” § 768.74(2). The statute establishes five 

“criteria” that the trial court “shall consider” “[i]n determining 

whether an award is excessive . . . in light of the facts and 

circumstances presented to the trier of fact and in determining the 

amount, if any that such award exceeds a reasonable range.” § 

768.74(5). The rephrased certified question implicates the fourth of 

these five criteria, which requires the trial court to consider 
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“[w]hether the amount awarded bears a reasonable relation to the 

amount of damages proved and the injury suffered.” § 768.74(5)(d).

Reading these statutes together, unless the “facts and 

circumstances” exception of section 768.73(1)(b) applies, section 

768.73(1)(a) caps an award of punitive damages in comparison to 

the compensatory damages award at a ratio of 3:1, and section 

768.74 provides for further review of an award that is challenged as 

excessive, regardless of whether the award falls inside or outside of

the 3:1 cap. Therefore, even when (as the Fifth District held here) 

the “facts and circumstances” allow a punitive damages award to 

exceed the 3:1 presumptive cap of section 768.73(1)(a), that is not 

the end of the analysis. See Coates, 308 So. 3d at 1073. Rather, 

the trial court must review the challenged award for excessiveness 

under section 768.74. See id.; see also § 768.74(3), Fla. Stat. (“It is 

the intention of the Legislature that awards of damages be subject 

to close scrutiny by the courts and that all such awards be 

adequate and not excessive.”) (emphasis added); Guarino v. 

Armstrong World Indus., Inc., No. 88-1087-CIV-MARCUS, 1989 WL 

265218, at *2 (S.D. Fla. Oct. 13, 1989) (describing section 

768.73(1)(a) as imposing a cap on punitive damages and section 
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768.74(2) as providing “a further check upon the imposition of 

excessive punitive damages”).

When a trial court reviews an award of punitive damages 

under section 768.74, the statute plainly requires that the amount 

awarded must “bear[] a reasonable relation to the amount of 

damages proved and the injury suffered.” § 768.74(5)(d). This 

requirement is one of the five “criteria” that the trial court “shall 

consider” in determining whether a damages award is excessive, § 

768.74(5)(d), and is therefore a condition that must be met for the 

award to stand. See Owens v. State, 303 So. 3d 993, 997 n.5 (Fla. 

1st DCA 2020) (“The word criteria used by the Legislature is the 

plural of criterion. Using the plural shows that the Legislature 

intended all [the] conditions to be met . . . .”) (citation omitted); see 

also Wal-Mart Stores Inc. v. Thornton, 241 So. 3d 867, 868 (Fla. 4th 

DCA 2018) (remanding for remittitur where the amount of damages 

awarded bore no reasonable relationship to the damages proved).

Consistent with the statutory text, our precedent recognizes 

that a punitive damage award must bear a reasonable relationship 

to the amount of damages proved and the injury suffered. 

Specifically, in Schoeff, 232 So. 3d at 308, we applied section 
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768.74(5) to “evaluate a denial of remittitur for abuse of discretion,”

and identified the compensatory damages award as relevant to the 

statutory inquiry, explaining that “[p]unitive damages must also be 

reviewed alongside compensatory damages ‘to ensure a reasonable 

relationship between the two.’ ” Id. (quoting Engle v. Liggett Grp., 

Inc., 945 So. 2d 1246, 1264 (Fla. 2006)).

B. The rule is no different in a wrongful death action.

Given the clarity of both the statutory text and our precedent,

it is not surprising that Ms. Coates acknowledges that sections 

768.73 and 768.74 make relevant a comparison between punitive 

and compensatory damages. She also acknowledges that the dollar 

amount of the $16 million punitive damages award in this case 

compared to the dollar amount of the $150,000 net compensatory 

damages award “might call the punitive award into some initial 

question.” However, despite the 106.7 to 1 ratio of the awards, she 

argues that the necessary reasonable relationship exists because, 

unlike other actions where the compensatory damages reflect the 

actual injury suffered, the compensatory damages in a wrongful 

death action do not because the statutory beneficiaries do not 

recover damages for the decedent’s death. Insisting that the 
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uncompensated-for death is really the injury suffered in a wrongful 

death action, Ms. Coates urges us to answer the rephrased question 

in the negative and uphold the $16 million punitive damages award 

as bearing a reasonable relation to Ms. Stucky’s death.

We cannot. The text of Florida’s Wrongful Death Act controls 

and precludes us from concluding that death is “the injury suffered”

in a wrongful death action. See Fla. E. Coast Ry. Co. v. McRoberts, 

149 So. 631, 632 (Fla. 1933) (“The common law afforded no remedy 

for death by wrongful act. Hence the right and remedy are purely 

statutory.”). The Wrongful Death Act creates a statutory right of 

action, see § 768.19, Fla. Stat. (1997), and provides that the injury 

suffered in such an action is to the decedent’s statutory 

beneficiaries, not the decedent, see §§ 768.18, 768.21, Fla. Stat. 

(1997).

As explained above, the statutory beneficiaries in this case are 

Ms. Stucky’s three adult children. § 768.18(1) (defining 

“[s]urvivors” to include the decedent’s children). The Wrongful 

Death Act specifies the damages that “may be awarded” to the

statutory beneficiaries, and where the decedent’s survivors are 

concerned provides that “[e]ach survivor may recover the value of 
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lost support and services from the date of the decedent’s injury to 

her or his death, with interest, and future loss of support and 

services from the date of death and reduced to present value.” § 

768.21(1). Accordingly, because the Wrongful Death Act remedies

injuries suffered “for the living and not for the dead,” Martin v. 

United Sec. Servs., Inc., 314 So. 2d 765, 769 (Fla. 1975), we cannot 

conclude, for purposes of evaluating a punitive damages award in a 

wrongful death action under section 768.74(5)(d), that the 

decedent’s death is “the injury suffered.” See § 768.20, Fla. Stat. 

(1997) (“When a personal injury to the decedent results in death, no 

action for the personal injury shall survive, and any such action 

pending at the time of death shall abate.”) (emphasis added).

Citing decisions from other states, Ms. Coates cautions that 

failing to recognize death as the real injury suffered in a wrongful 

death action disregards the sanctity of life by allowing a tortfeasor 

to be punished to a lesser extent in a case where the injured person

dies as a result of the tortious conduct than in a case where the 

injured person survives. See Schwartz v. Philip Morris USA, Inc., 

355 P.3d 931, 942-43 (Or. Ct. App. 2015) (affirming a punitive to 

compensatory damage award ratio of 148:1 in a wrongful death 
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action based in part on the court’s conclusions that the $170,000 

compensatory award did not, as a matter of Oregon law, “account 

for the loss [of the decedent’s] life itself” and “would not serve an 

appropriate admonitory function in the circumstances of this case”).

In Florida, however, the Legislature made a policy choice to 

exclude death as a cognizable injury in a wrongful death action and 

to recognize instead the injury suffered by the statutory 

beneficiaries. It is not for us to treat injury differently for punitive 

damages in wrongful death actions where the Legislature has not. 

Rather, our job is to faithfully apply the law as written. See State v. 

Rife, 789 So. 2d 288, 292 (Fla. 2001) (“[I]t is not this Court’s 

function to substitute its judgment for that of the Legislature as to 

the wisdom or policy of a particular statute.”).

Although the dissent properly observes that the statutes 

provide for the estate as a beneficiary, our analysis on punitive 

damages is not affected because death is not a cognizable injury for 

the estate in a wrongful death action. Section 768.21(6) specifies 

the damages that “[t]he decedent’s personal representative may 

recover for the decedent’s estate.” Although not part of the 

damages awarded in this case, the statute authorizes, subject to 
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certain limitations, recovery for injuries to the estate in the form of 

lost earnings of the deceased from the date of injury to the date of 

death, lost prospective net accumulations of the estate, and medical 

or funeral expenses. See id. Nowhere does the statute authorize 

recovery on behalf of the estate for the decedent’s death. 

Significantly, that is because the Legislature’s choice to exclude 

death as a cognizable injury in a wrongful death action equally 

applies to all of the statutory beneficiaries, including the estate. 

See § 768.20 (limiting the personal representative’s recovery “for the 

benefit of the decedent’s survivors and estate” to the damages 

“specified in this act” and expressly extinguishing any action for a 

personal injury to the decedent that results in death).

Under Florida law, which excludes the decedent’s death as a 

cognizable injury under the Wrongful Death Act, we hold that the 

trial court in a wrongful death action abuses its discretion by 

denying remittitur of a punitive damages award that does not bear a 

reasonable relation to the damages proved and the injury suffered 
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by the statutory beneficiaries. Therefore, we answer the rephrased

question in the affirmative.4

C. The trial court abused its discretion by denying remittitur.

In this case, we agree with the Fifth District that the trial court 

abused its discretion in denying remittitur of the $16 million 

punitive damages award. See Engle, 945 So. 2d at 1263 (“Under 

Florida law, a trial court’s determination of whether a damage 

award is excessive, requiring a remittitur or a new trial, is reviewed 

by an appellate court under an abuse of discretion standard.”); see 

also Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (“If 

reasonable men could differ as to the propriety of the action taken 

by the trial court, then the action is not unreasonable and there 

can be no finding of an abuse of discretion.”).

4. In so holding, we reiterate that the rephrased question is 

limited to the facts of this case where the compensatory damages 

award reflects the damages proved and the legally cognizable injury 

suffered by the statutory beneficiaries. Therefore, we need not 

reach RJR’s argument that section 768.74(5)(d), on its face and as 

interpreted by this Court in Schoeff, should be read to require 

remittitur of a punitive damages award based solely on the ratio of 

punitive to compensatory damages, without regard to the injury 

suffered. Nor do we express any opinion as to whether the damages 

proved will always be coextensive with the injury suffered in every 

case to which the remittitur statute applies.
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Although we cannot say it was unreasonable to conclude that

the facts and circumstances support departing from the 3:1 cap of 

section 768.73(1), see Coates, 308 So. 3d at 1073, as we have 

explained above, that is not the end of the inquiry. Rather, section 

768.74(5)(d) imposes a further check against an excessive punitive 

damages award that turns on “[w]hether the amount awarded bears 

a reasonable relation to the amount of damages proved and the 

injury suffered.” Looking to the undisputed facts in this record, no

reasonable trial court could have concluded that the $16 million

punitive damages award survives that check. See Canakaris, 382 

So. 2d at 1203.

Here, the damages proved were $300,000, reduced by Ms. 

Stucky’s 50% comparative fault to a net of $150,000. Although the 

Fifth District described these damages as “modest,” Coates, 308 So. 

3d at 1076, they are not merely nominal damages awarded in a 

case where compensatory damages were not proven. See Land & 

Sea Petroleum Holdings, Inc. v. Leavitt, 321 So. 3d 810, 816 (Fla. 

4th DCA 2021) (“[N]ominal damages are in effect zero damages and 

are defined as those damages flowing from the establishment of an 

invasion of a legal right where actual or compensatory damages 
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have not been proven.”) (quoting Ault v. Lohr, 538 So. 2d 454, 456 

(Fla. 1989)). Rather, the injury suffered by the survivors in this 

wrongful death case is the injury reflected in the compensatory 

damages award that the jury found to represent “the total amount” 

of the damages that Ms. Stucky’s survivors sustained “for the loss 

of parental companionship, instruction[,] and guidance, and from 

their mental pain and suffering as a result of Lois Stucky’s lung 

cancer and death.”

Finally, Ms. Coates correctly notes that higher dollar awards of 

punitive damages have been approved in other tobacco cases. See

Coates, 308 So. 3d at 1076 (collecting tobacco cases with punitive 

damages awards of $20 million or more). However, the statutory 

analysis of whether a punitive damages award bears a reasonable 

relation to the amount of damages proven and the injury suffered is 

necessarily case-specific. See § 768.74(5)(d). The damages findings 

in this case sit in stark contrast to other wrongful death cases 

where the proof of more significant injury to the statutory 

beneficiaries resulted in much larger compensatory damages 

awards that, in turn, supported higher punitive damages awards. 

See, e.g., Schoeff, 232 So. 3d at 299, 308-09 (holding the trial court 
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did not abuse its discretion by denying remittitur of a $30 million 

punitive damages award where the jury found the tobacco company 

liable for the decedent’s wrongful death on multiple claims, 

including fraudulent concealment, and awarded $10.5 million in 

compensatory damages).

In this case, because no reasonable trial court could have 

found that the $16 million punitive damages award bears a

reasonable relation to the $150,000 net compensatory damages 

award and the injury suffered by Ms. Stucky’s survivors, the Fifth 

District correctly reversed the excessive punitive damages award

and remanded for further proceedings.

III. CONCLUSION

For the reasons above, we hold that a trial court in a wrongful 

death action abuses its discretion by denying remittitur of a 

punitive damages award that does not bear a reasonable relation to 

the damages proved and the injuries suffered by the statutory 

beneficiaries. Accordingly, we answer the rephrased certified 

question in the affirmative. Further, because the trial court abused 

its discretion by not ordering remittitur of the punitive damages 

award in this case, we approve the Fifth District’s decision reversing 
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the excessive award and remanding for further proceedings to the 

extent the district court’s decision is consistent with this opinion.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, and GROSSHANS, JJ., 

concur.

LABARGA, J., dissents with an opinion.

FRANCIS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

As a result of today’s decision, a Florida jury’s verdict—that 

R.J. Reynolds Tobacco Company (R.J. Reynolds) is liable for 

$16 million in punitive damages for the wrongful death of 

Lois Stucky—will be drastically reduced to a fraction of what the 

jury determined that the circumstances of the case warrant. This 

drastic reduction is attributable to the majority’s analysis of the 

rephrased certified question, an analysis that unreasonably 

concludes that the decedent’s death is not a cognizable injury for 

purposes of punitive damages claims.

Although Florida’s Wrongful Death Act does not recognize the 

death of the decedent, Ms. Stucky, as a cognizable injury in 

awarding compensatory damages, I disagree with the majority’s 
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conclusion that under the Act, her death is not a cognizable injury 

for the purpose of awarding punitive damages. I respectfully 

dissent.

In March 2019, the jury rendered a verdict which read in part: 

“Please state whether cigarettes manufactured by R.J. Reynolds 

Tobacco Company and smoked by Lois Stucky were defective by 

reasons of their design and, if so, whether the defect was the legal 

cause of Lois Stucky’s lung cancer and death.” To this question, 

the jury answered: “Yes.” The jury further found “by clear and 

convincing evidence that punitive damages are warranted against 

R.J. Reynolds Tobacco Company under the circumstances of this 

case.”

When evaluating a plaintiff’s claim for punitive damages, the 

jury “focuses on ensuring the correct remedy for the underlying 

violation—one that punishes the defendant and deters others from 

engaging in similar conduct.” Soffer v. R.J. Reynolds Tobacco Co., 

187 So. 3d 1219, 1230 (Fla. 2016). Naturally, this means that in a 

wrongful death case, the jury must consider the correct remedy for 

the tortious conduct that caused the decedent’s death.
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However, today’s decision guts the impact of punitive damages 

in wrongful death cases because the majority concludes that the 

most important part, indeed, the basis of a wrongful death claim—

the decedent’s death—may not be considered an injury suffered. 

This decision invades the province of the jury in wrongful death

cases because it increases the likelihood that remittitur will be 

ordered whenever the ratio of punitive damages to compensatory 

damages exceeds the ratio of 3:1.

To arrive at its conclusion that the jury’s punitive damages 

award was excessive in this case, the majority relies on a strained 

interpretation of one of five factors set forth in section 768.74(5), 

Florida Statutes (1997), and it concludes that no reasonable court 

could have found that the punitive damages award bears a 

reasonable relation to the amount of damages proved and the injury 

suffered. See majority op. at 18. The majority also narrowly 

focuses on Ms. Stuckey’s three adult children as the “statutory 

beneficiaries,” although the decedent’s estate is also an enumerated 

beneficiary under Florida’s Wrongful Death Act. The majority’s 

interpretation raises the question: when evaluating punitive 
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damages in a wrongful death case, how can a decedent’s death not

be a cognizable injury?

The Wrongful Death Act, with its focus on compensatory 

damages, should not be read to limit the type of injury cognizable in 

determining punitive damages. Nor does considering death as an 

injury for punitive damages purposes constitute maintaining an 

“action for the personal injury,” which is prohibited under the Act. 

See § 768.20, Fla. Stat. (1997).

Because R.J. Reynolds’s tortious conduct caused Ms. Stucky’s 

death, treating her death as a cognizable injury for the purpose of 

awarding punitive damages is necessary to hold R.J. Reynolds fully 

accountable for the harm it caused. This rationale was cogently 

explained in Schwarz v. Philip Morris USA, Inc., 355 P.3d 931, 943 

(Or. Ct. App. 2015), where similar to Florida, compensatory 

“damages [in Oregon] did not account for the loss of [the decedent’s] 

life itself, as ‘Oregon law does not provide for compensatory 

damages for loss of life to the person who has died or to her estate 

in this type of case.’ ” Id. (quoting jury instruction). As a result, the 

court explained, “the compensatory damages did not account for all 

of the harm directly suffered as a result of the actions of defendant. 
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Rather, defendant’s conduct caused harm for which defendant was 

not required to pay.” Id.

Acknowledging the inadequacy of this result, the court 

concluded that the “less than $170,000” awarded to the plaintiffs 

was “a relatively small amount for the death of a human being and 

would not serve an appropriate admonitory function in the 

circumstances of this case.” Id. The court observed that the 

“defendant engaged in particularly egregious acts in this case, but 

that conduct resulted in a relatively small amount of compensatory 

damages in light of the harm that resulted.” Id.

In the present case, the Fifth District Court of Appeal also 

identified egregious wrongdoing by the defendant, R.J. Reynolds, 

explaining in detail:

The evidence at trial demonstrated significant 

reprehensibility by Reynolds in designing its cigarettes. 

It used a tobacco curing process designed to make the 

smoke “smoother” and manipulated the levels of nicotine 

and other additives to make its product easily inhalable, 

and thus, addictive. Too, its advertising efforts, 

particularly those advertisements produced in the early 

years of Ms. Stucky’s addiction, were intended to entice 

young people to begin smoking and to suggest, if not 

convince, consumers that smoking was safe, or 

reasonably so. But it was well established that the 

inhalation of cigarette smoke is not safe. Stucky paid the 
- 25 -

price for her addiction. The jury determined that 

Reynolds must also pay its price.

R.J. Reynolds Tobacco Co. v. Coates, 308 So. 3d 1068, 1070 (Fla. 

5th DCA 2020). As a result of the jury’s findings, the jury awarded 

$16 million in punitive damages for the entirety of the harm caused 

by R.J. Reynolds. Id. at 1071.

The exclusion of Ms. Stucky’s death as a cognizable injury for 

punitive damages purposes is revealed to be especially unfair when 

considering that if she had not died as a result of R.J. Reynolds’s 

wrongdoing, but instead was left alive but severely injured, that

injury would be able to be considered in determining punitive 

damages. Under today’s holding, however, because Ms. Stucky did 

not survive, her death is not a basis for awarding punitive damages.

While the majority emphasizes that a cognizable wrongful 

death injury must attach to the statutory beneficiaries, I hasten to 

note that a decedent’s estate is also a named beneficiary under the 

Wrongful Death Act; indeed, Ms. Coates was successful on her 

strict liability claim in her capacity as the personal representative of 

Ms. Stucky’s estate. Although a personal injury cause of action 

cannot survive the death of the decedent, Ms. Stucky’s death itself 
- 26 -

is a separate injury, and naturally, only cognizable upon her death. 

Accordingly, death is the injury suffered to the decedent’s estate as 

a statutory beneficiary, and it can be considered for punitive 

damages purposes.

It is not hard to imagine a situation under the majority’s 

interpretation where the punitive damages awarded to a living 

victim will far exceed the punitive damages awarded if a victim dies. 

Recognizing death as a cognizable injury for punitive damage 

purposes would maintain the Wrongful Death Act’s function of 

defining available compensatory damages without robbing punitive 

damage awards of their purpose. Because of the untenable results 

that will flow from the majority’s interpretation, I respectfully 

dissent.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions/Certified Great Public Importance

Fifth District – Case No. 5D19-2549

(Orange County)

John S. Mills of Bishop & Mills, PLLC, Jacksonville, Florida, 

Courtney Brewer, Jonathan Martin, and Bailey Howard of Bishop & 

Mills, PLLC, Tallahassee, Florida,

for Petitioner
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Troy A. Fuhrman and Marie A. Borland of Hill Ward Henderson, 

Tampa, Florida; Jason T. Burnette and Brian Charles Lea of Jones 

Day, Atlanta, Georgia, Charles R.A. Morse of Jones Day, New York, 

New York, and Andrew J. Bentz of Jones Day, Washington, District 

of Columbia,

for Respondent

Geoffrey J. Michael, John P. Elwood, and Samuel F. Callahan of 

Arnold & Porter Kaye Scholer LLP, Washington, District of 

Columbia,

for Amicus Curiae Philip Morris USA Inc.

Kansas R. Gooden of Boyd & Jenerette, PA, Miami, Florida; and 

Cyrus S. Vaziri of Cyrus S. Vaziri, P.A., Fort Myers, Florida,

for Amicus Curiae Florida Defense Lawyers Association

William W. Large of Florida Justice Reform Institute, Tallahassee, 

Florida; and Joseph H. Lang, Jr. of Carlton Fields, P.A., Tampa, 

Florida,

for Amici Curiae the Chamber of Commerce of the United 

States of America, the American Tort Reform Association, and 

the Florida Justice Reform Institute

Wendy F. Lumish of Bowman and Brooke LLP, Coral Gables, 

Florida; and Thomas H. Dupree, Jr. of Gibson, Dunn & Crutcher 

LLP, Washington, District of Columbia,

for Amicus Curiae Product Liability Advisory Council, Inc.

Cory L. Andrews of Washington Legal Foundation, Washington, 

District of Columbia,

for Amicus Curiae Washington Legal Foundation