R.J. REYNOLDS TOBACCO COMPANY

v.

MARY E. SHEFFIELD, PERSONAL REPRESENTATIVE OF THE ESTATE OF VALTON SHEFFIELD

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

R.J. REYNOLDS TOBACCO COMPANY,

Appellant,

v.

Case No. 5D17-2521

MARY E. SHEFFIELD, PERSONAL

REPRESENTATIVE OF THE ESTATE

OF VALTON SHEFFIELD,

Appellee.

________________________________/

Opinion filed February⁸, 2019

Appeal from the Circuit Court for Orange County, Julie H. O'Kane, Judge.

Troy A. Fuhrman, and Marie A. Borland, of Hill Ward Henderson, Tampa, Brian C. Lea, Pro Hac Vice, of Jones Day, Atlanta, and Charles R. A. Morse, of Jones Day, New York, for Appellant.

David J. Sales, and Daniel R. Hoffman, of David J. Sales, P.A., Sarasota, and Melvin

B. Wright, and Lisa Thomas, of Colling,

Gilbert Wright & Carter, LLC, Orlando, for Appellee.

EDWARDS, J.

2

The issue we address in this Engle-progeny¹ wrongful death case is whether to apply the punitive damages statute in place at the time of the decedent’s death or to instead apply the punitive damages statute in place when the Engle class was recertified in 1996. Based on the statute’s specific language and well-established Florida law, we hold that the applicable version of the punitive damages statute is the 1999 version of section 768.73, Florida Statutes, which was in effect when the instant wrongful death cause of action accrued on the date of decedent’s death. We find the trial court erred by applying the pre-1999 version of that statute and reverse for further proceedings that may include a new trial on punitive damages. We are aware that three other district courts of appeal have reached a different conclusion on this issue; therefore, we certify express and direct conflict with those decisions.

FACTUAL BACKGROUND

Valton Sheffield was first diagnosed with primary lung cancer in 1994, nearly ten years after he quit smoking. He had a portion of the affected lung removed and then underwent radiation and chemical therapies, which purportedly cured him of that first cancer. In 2003, he was again diagnosed with lung cancer and underwent similar treatment. Three years later, in 2006, he was once again diagnosed with lung cancer and passed away in 2007.

His widow, Mary Sheffield, was named personal representative of his estate. On behalf of the Estate, she timely filed a wrongful death action seeking compensatory and punitive damages from several tobacco companies, including Appellant, R.J. Reynolds Tobacco Company, based on her claim that her husband’s death was the result of

Following trial, the jury returned one verdict finding liability against Reynolds and awarding $1.8 million in compensatory damages, and a second verdict awarding $5 million in punitive damages against Reynolds.

LEGAL ANALYSIS

Prior to, during, and following trial, Reynolds argued that the punitive damages issues should be governed by the current version of section 768.73, which became law on October¹, 1999, but the trial court agreed with the Estate and applied the pre-1999 version of that statute. The 1999 version modified the prior law in several ways, including potentially barring punitive damages awards against a defendant if punitive damages were previously awarded against that defendant “in any action alleging harm from the same act or single course of conduct.” § 768.73(2)(a), Fla. Stat. (1999). Given the numerous prior punitive damages awards against it, Reynolds argues that applying the 1999 version of the statute would have given it the opportunity to avoid punitive damages completely.² R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1225 (Fla. 2016).

2 However, section 768.73(2)(b) permits the trial court to submit punitive damages to the jury “if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior.”

Section 768.73(5), Florida Statutes (1999), states: “The provisions of this section shall be applied to all causes of action arising after the effective date of this act.” “When the statutory language is ‘clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’” McNeil v. State, 162 So. 3d 274, 275 (Fla. 5th DCA 2013) (internal citations omitted) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). “Likewise, ‘[a] court cannot construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications.’” Casais v. State, 204 So. 3d 969, 970 (Fla. 5th DCA 2016) (quoting Jefferson v. State, 927 So. 2d 1037, 1039 (Fla. 4th DCA 2006)).

In another Engle-progeny case, the Florida Supreme Court likewise held that where a statute expressly states to which cases it will apply, prospectively only or also retrospectively, the clear language of the statute governs. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 301 (Fla. 2017). “When the statute is clear and unambiguous, we use the plain language of the statute and avoid rules of statutory construction to determine the Legislature’s intent.” Id. (internal quotation marks and citations omitted). There, the supreme court applied the 2011 version of the comparative fault statute to Schoeff’s Engle claim because that version specifically provided that “[t]his act is remedial in nature and applies retroactively.” Id. Thus, when it comes to deciding which version of a statute shall be applied, Engle-progeny cases are no different than any other cases.

In the absence of express statutory language to the contrary, Florida law generally holds that the applicable version of a statute is the version in effect at the time a cause of action accrues. D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla. 2003) (applying statutes regarding apportionment of fault and setoff for settlements that were in effect when cause of action arose); Estate of Despain v. Avante Grp., Inc., 900 So. 2d 637, 641 n.3 (Fla. 5th DCA 2005) (applying punitive damages statute in effect when cause of action arose, rather than when trial occurred); St. John v. Coisman, 799 So. 2d 1110, 1113 (Fla. 5th DCA 2001) (applying punitive damages statute in effect when cause of action arose); Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057, 1058 (Fla. 4th DCA 1994) (applying wrongful death statute that was amended after decedent was injured but before her death, which amendment created parents’ claim for the loss of adult children); Brodose v. Sch. Bd. of Pinellas Cty., 622 So. 2d 513, 513 (Fla. 2d DCA 1993) (applying offer of judgment statutes in effect when cause of action accrued). Wrongful death action accrues on date of death

Here, both parties agree that the statutory language as amended in 1999 is unambiguous so that it can be applied without need for further interpretation. Thus, both sides agree that it is to be applied to causes of action arising after October¹, 1999. However, they disagree as to when the Estate’s wrongful death cause of action accrued. “Florida law does not distinguish between when a cause of action accrues and when a cause of action arises.” Philip Morris USA Inc. v. Martin, 43 Fla. L. Weekly D2747, D2748 (Fla. 4th DCA Dec.¹², 2018) (quoting Lumbermens Mut. Cas. Co. v. August, 509 So. 2d 352, 353 (Fla. 4th DCA 1987), quashed on other grounds, 530 So. 2d 293 (Fla. 1988)).

“The purpose of the Florida Wrongful Death Act is to provide a ‘separate and independent’ cause of action since the original cause of action for personal injury did ‘not survive’ the death of the injured party.” Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340, 342 (Fla. 4th DCA 2017) (citations omitted). “Wrongful death actions are brought on behalf of the survivors, not to recover for injuries to the deceased, but to recover for statutorily identified losses the survivors have suffered directly as a result of the death.” DeVaughn v. DeVaughn, 840 So. 2d 1128, 1132 (Fla. 5th DCA 2003). Florida law is clear: a cause of action for wrongful death accrues on the date of the decedent’s death. See Fulton Cty. Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999) (“In Florida, a cause of action for wrongful death accrues on the date of death.”); Love v. Hannah, 72 So. 2d 39, 41 (Fla. 1954) (“The plaintiffs’ right of action under the wrongful death statute must be determined by the facts existing at the time of the death of decedent.”); St. Francis Hosp. v. Thompson, 31 So. 2d 710, 711 (Fla. 1947) (“Plaintiff’s cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause. The statute of limitations commenced to run upon death.”); Domino’s Pizza, LLC. v. Wiederhold, 248 So. 3d 212, 219 (Fla. 5th DCA 2018) (“This conclusion is consistent with cases recognizing that wrongful death actions accrue on the date of the decedent’s death.”); MacDonald, 645 So. 2d at 1057 (“A cause of action for wrongful death accrues on the date of decedent’s death.”); Bruce v. Byer, 423 So. 2d 413, 414–15 (Fla. 5th DCA 1982) (“The general rule is that a cause of action for wrongful

Thus, when one considers the express language of the 1999 version of the punitive damages statute—that it applies to all causes of action arising after its effective date of October¹, 1999—combined with Florida’s general rule that the statute in effect when a cause of action accrues is applicable, and well-established Florida law that a wrongful death cause of action accrues on the date of death, which here was 2007, one would expect no debate that the punitive damages issues in the underlying trial would have been governed by the 1999 version of the statute rather than the pre-1999 version. Yet the Estate argues, the trial court found, and three other district courts of appeal have concluded that the outcome is different for an Engle-progeny wrongful death case. We will next consider that line of reasoning and explain why we conclude it does not withstand scrutiny. Engle: Manifestation vs. Accrual

In order to be considered a member of the Engle class, the plaintiff or the plaintiff’s decedent must have manifested one of the smoking-related diseases or conditions prior to the cut-off date of November 21, 1996. R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028, 1030 (Fla. 2016). The Florida Supreme Court conferred two benefits upon

3 Reynolds appeals the use of the Engle common core res judicata liability findings, asserting that it violates federal due process and that the Estate’s strict-liability and negligence claims are pre-empted by federal law. Reynolds concedes that those issues were litigated before the Florida Supreme Court, which denied those arguments; Reynolds raises them here for the purpose of preserving them for later review.

Ciccone, 190 So. 3d at 1039 (internal citations omitted). In R.J. Reynolds Tobacco Co. v. Allen, 228 So. 3d 684 (Fla. 1st DCA 2017), the First District dealt with an Engle-progeny case that had been timely commenced as a personal injury case, which was then converted into a wrongful death action when Allen passed away. In Allen, the First District conflated Engle class membership with accrual of the relevant cause of action. After acknowledging that “[i]n many wrongful death actions, the cause of action accrues on the date of a decedent’s death,” that court then concluded that Engle-progeny cases were different because class membership depended upon manifestation rather than accrual. Id. at 689. Given the supreme court’s lengthy discussion in Ciccone about how the accrual of a cause of action is irrelevant to Engle class membership, it is unclear why the First District concluded that class membership was not only relevant to, but in fact determined, when a cause of action accrued. There are many people who potentially were Engle class plaintiffs because they were Florida residents who manifested signs of a smokingrelated illness or disease before the November 21, 1996 recertification date, but whose causes of action had not accrued by the filing deadline in 2007 because they were not yet on reasonable notice of a causal connection between their use of tobacco and the illness or disease. Furthermore, because a wrongful death action is “separate and independent,” it cannot arise until death has occurred. See Kelly, 211 So. 3d at 342. “Plaintiff’s cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause.” Thompson, 31 So. 2d at 711.

11

The First District also improperly relied upon the concept that both the wrongful death action and punitive damages claim related back to the “date of the Engle class for statute of limitations purposes” based upon a misapplication of In re Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014). Allen, 228 So. 3d at 690. Both Allen and In re Engle Cases dealt with cases in which “the original complaints (filed by the then-alive plaintiffs) were timely filed,” and then became potential wrongful death cases when each plaintiff passed away. In re Engle Cases, 45 F. Supp. 3d at 1356; see Allen, 228 So. 3d at 690. The Middle District concluded that plaintiffs would be permitted to file amended complaints substituting wrongful death claims for personal injury claims and the wrongful death claims would be deemed timely filed because they would relate back to the dates on which the corresponding original personal injury complaints were filed. In re Engle Cases, 45 F. Supp. 3d at 1360–61. In Allen, the First District mistakenly suggested that In re Engle Cases found that wrongful death actions would relate back to the date of the Engle class for statute of limitations purposes. Allen, 228 So. 3d at 690. However, as noted, the Middle District held that the amended complaints asserting wrongful death would relate back to the date of each plaintiff’s original personal injury complaint, not to the date of the class-action complaint filed in May 1994. Had the First District properly applied In re Engle Cases, it would have concluded that the amended complaint for wrongful death filed by Allen’s estate related back to the date when Allen’s personal injury complaint was filed, rather than to the date on which Allen manifested smoking-related disease symptoms. Here, Mr. Sheffield never filed a personal injury complaint, so the relation-back doctrine is inapplicable.

In R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2018), the Second District also conflated “manifestation” for purposes of class membership with the “accrual” of a cause of action. Id. at 461. Evers was commenced as a wrongful death action following Mr. Evers’s death in 2007. In large part, Evers relies upon and quotes from the Allen case, discussed above. Thus, we need not repeat the bases for our disagreement.

Citing Allen and Evers, the Fourth District announced its agreement with the First and Second Districts “in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death.” R.J. Reynolds Tobacco Co. v. Estate of Konzelman, 248 So. 3d 134, 135 (Fla. 4th DCA 2018).5 The Konzelman opinion contains no information about when Ms. Konzelman’s personal injury cause of action arose, nor does it provide information about when she died. One would assume from the opinion that Ms. Konzelman, the decedent, manifested a smoking-related illness or disease by

4 The Allen opinion does not state when Ms. Allen’s personal injury cause of action arose separate from the fact that her illness manifested itself prior to the November 21, 1996 cut-off date. Her personal injury suit was filed in 2007 and was converted into a wrongful death action in 2009.

5 As noted above, Evers was originally a wrongful death case; it was not commenced as a personal injury claim that was converted to a wrongful death case.

CONCLUSION

For the reasons discussed above, we hold that the Estate’s wrongful death cause of action accrued on the date of Mr. Sheffield’s death in 2007, making the 1999 version of section 768.73, Florida Statutes, applicable to the punitive damages issues in this case and to the possible retrial of those issues. We reverse that portion of the judgment awarding punitive damages and remand to the trial court for further proceedings consistent with this opinion, which may include a new trial regarding only punitive

6 Martin concerned an Engle class member whose class-qualifying disease manifestation was a tobacco-related heart attack. 43 Fla. L. Weekly at D2747. However, Mrs. Martin ultimately died in 2004 from tobacco-related lung cancer that manifested itself in 2003. Id. Under those circumstances, the Fourth District found that her cause of action accrued in 2003 when she first manifested lung cancer, making the punitive damages statute that became effective October¹, 1999, applicable. Id. at D2749. Thus, Martin also conflated “disease manifestation” with “accrual of a cause” of action because it did not use the date of death to determine when the cause of action accrued. However, the Fourth District in Martin did reject the concept that all Engle-progeny claims relate back to the 1994 Engle class action complaint. Id.

AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR FURTHER

PROCEEDINGS REGARDING PUNITIVE DAMAGES, AND CONFLICT CERTIFIED.

COHEN, J., concurs. LAMBERT, J., concurs in part, and dissents in part, with opinion. .

7 Because section 768.73(2)(b) permits the trial court to submit punitive damages to the jury “if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior,” whether the punitive damages award will be stricken or whether a new trial limited to punitive damages must take place depends initially on the trial court’s determination of that statutory issue. Because the trial court ruled that the pre-1999 punitive damages statute controlled, it made no findings on the sufficiency of prior awards. Even if the trial court found the prior punitive damage awards did not sufficiently punish Appellant’s behavior, a new trial may not be justified, as a practical matter, because that same statutory subsection provides that any such award “must be reduced by the amount of any earlier punitive damages awards rendered in state or federal court.” See Martin, 43 Fla. L. Weekly at D2749 n.3.

I concur with affirming the award of $1.8 million in compensatory damages. As to the reversal of the punitive damages award, the majority opinion holds that the post-1999 version of section 768.73, Florida Statutes, applies to the instant wrongful death action because this cause of action did not accrue until the death of the decedent, Valton Sheffield, in 2007. However, because I believe that the trial court properly applied the pre-1999 version of this punitive damages statute, I dissent from that portion of the opinion.

Mr. Sheffield’s cause of action for personal injuries and illnesses related to his use of cigarettes manufactured and distributed by R.J. Reynolds accrued in 1994 when he was first diagnosed with lung cancer. Stated differently, Mr. Sheffield could have filed his own suit against R.J. Reynolds for his tobacco-related personal injuries and illnesses long before the 1999 amendment to the punitive damages statute. If he had and later died after 1999 due to his illness, his personal right to seek punitive damages under the pre- 1999 statute would have survived the merger or amendment into the later wrongful death claim brought by his estate. See Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 77172 (Fla. 1975) (allowing for punitive damages upon merger of personal injury survival action into wrongful death claim). Mr. Sheffield deferred filing his own suit and instead participated as a class member in the lengthy Engle class action tobacco litigation. That case essentially did not conclude until the Florida Supreme Court issued its opinion in 2006 that, among other things, approved the decertification of the class but provided each class member a one-

8 As indicated in the majority opinion, it is undisputed that Mr. Sheffield is an Engle class member, which the Florida Supreme Court defined to include “[a]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle, 945 So. 2d at 1256.