Shirley B. Baker, Personal Representative of the Estate of Elmer P. Baker v. R. J. Reynolds Tobacco Company

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SHIRLEY B. BAKER, Personal Representative of the ESTATE

OF ELMER P. BAKER,

Appellant,

v.

R.J. REYNOLDS TOBACCO COMPANY,

Appellee.

No. 4D13-570

[February 18, 2015]

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

Judicial Circuit, Palm Beach County; David F. Crow, Judge; L.T. Case No.

502007CA020247XX.

David J. Sales of David J. Sales, P.A., Jupiter, for appellant/cross-

appellee.

Robert C. Weill, Eric L. Lundt, Gordon James, III, and Lenor C. Smith

of Sedgwick LLP, Fort Lauderdale, Donald Ayer and Gregory G. Katsas of

Jones Day, Washington, D.C., and Charles R.A. Morse of Jones Day, New

York, NY, for appellee/cross-appellant.

KLINGENSMITH, J.

Shirley Baker (“Plaintiff”) sued R.J. Reynolds Tobacco Co. (“Defendant”)

for the death of her husband Elmer Baker (“Mr. Baker”) that was allegedly

caused by smoking. In her lawsuit, Plaintiff asserted claims for negligence,

strict liability, concealment, and conspiracy. After the jury found

Defendant’s actions were not the legal cause of her husband’s death, she

argued that under the Florida Supreme Court’s decision in Engle v. Liggett

Group, 945 So. 2d 1246 (Fla. 2006) (hereinafter Engle III), the jury’s finding

that Mr. Baker was a member of the Engle class consequently established

the conduct and causation elements of her claims. She appeals the trial

court’s entry of final judgment in favor of Defendant, arguing the trial court

erred in denying her motion for a new trial because the jury’s verdict was

internally inconsistent. For the reasons set forth below, we affirm.

Engle began as a class action lawsuit filed in 1994 against cigarette

companies and tobacco industry organizations seeking damages for

smoking-related illnesses and deaths. The class included all 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.” R.J. Reynolds Tobacco

Co. v. Engle, 672 So. 2d 39, 40-42 (Fla. 3d DCA 1996) (hereinafter Engle

I). In Engle III, our supreme court decertified the class, but allowed certain

jury findings from the class action to have res judicata effect in any

subsequent lawsuits brought by individual class members seeking

damages from the defendants.

The Engle I jury made the following findings (hereinafter the Engle

findings), which the Florida Supreme Court approved:

[A]s to Question 1 (that smoking cigarettes causes aortic

aneurysm, bladder cancer, cerebrovascular disease, cervical

cancer, chronic obstructive pulmonary disease, coronary

heart disease, esophageal cancer, kidney cancer, laryngeal

cancer, lung cancer (specifically, adenocarinoma, large cell

carcinoma, small cell carcinoma, and squamous cell

carcinoma), complications of pregnancy, oral cavity/tongue

cancer, pancreatic cancer, peripheral vascular disease,

pharyngeal cancer, and stomach cancer), 2 (that nicotine in

cigarettes is addictive), 3 (that the defendants placed

cigarettes on the market that were defective and unreasonably

dangerous), 4(a) (that the defendants concealed or omitted

material information not otherwise known or available

knowing that the material was false or misleading or failed to

disclose a material fact concerning the health effects or

addictive nature of smoking cigarettes or both), 5(a) (that the

defendants agreed to conceal or omit information regarding

the health effects of cigarettes or their addictive nature with

the intention that smokers and the public would rely on this

information to their detriment), 6 (that all of the defendants

sold or supplied cigarettes that were defective), (7) (that all of

the defendants sold or supplied cigarettes that, at the time of

sale or supply, did not conform to representations of fact made

by said defendants), and 8 (that all of the defendants were

negligent).

Id. at 1276-77.

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“In [Engle I], the jury decided issues related to Tobacco’s conduct but

did not consider whether any class members relied on Tobacco’s

misrepresentations or were injured by Tobacco’s conduct.” Id. at 1263.

“The questions related to some, but not all of the elements of each legal

theory alleged.” Liggett Group Inc. v. Engle, 853 So. 2d 434, 450 (Fla. 3d

DCA 2003) (hereinafter Engle II). Critical elements of liability, such as

reliance and legal causation, were not determined by the Engle I jury. Id.

Accordingly, the Engle I jury did not determine Tobacco’s ultimate liability

to any individual class member. Id.; Engle III, 945 So. 2d at 1263.

At trial in the instant case, both parties submitted proposed jury

instructions and verdict forms to the court for approval and submission to

the jury. Plaintiff was successful in getting the court to agree to her

requested separate instructions regarding both class membership and

legal causation. As to class membership, the Plaintiff’s instructions asked

the jury to determine “whether [Mr.] Baker was addicted to cigarettes

containing nicotine: and if so, whether his addiction was a legal cause of

his lung cancer and death.” As to legal cause, Plaintiff agreed to jury

instructions requiring the jury to find “for the defendant” if they made a

specific finding that “the negligence of the defendant” or “the defective and

unreasonably dangerous cigarettes placed on the market by the

defendant” were not “a legal cause of [Mr.] Baker’s lung cancer and death.”

Finally, over Defendant’s objections, the trial court instructed the jury that

the Engle findings would be binding if they determined that Mr. Baker was

a member of the Engle class. In that event, the findings would establish

the conduct elements of Plaintiff’s tort claims, leaving only legal causation,

comparative fault, damages, and entitlement to punitive damages for the

jury to consider.

The trial court advised the jury, over defense objections, that if they

found Mr. Baker was addicted to cigarettes containing nicotine and such

addiction was the legal cause of death, “certain findings from a prior trial

will be binding on you and the parties.” The court then gave the following

instructions, by agreement of Plaintiff’s counsel, that:

If you find for the plaintiff on this issue, these findings may

not be denied or questioned and must carry the same weight

they would have if you had determined them yourselves.

These findings are: One, smoking cigarettes causes lung

cancer; two, nicotine in cigarettes is addictive; three, R.J.

Reynolds Tobacco Company placed cigarettes on the market

that were defective and unreasonably dangerous; four, R.J.

Reynolds Company concealed or omitted material information

not otherwise known or available, knowing that the material

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was false or misleading, or failed to disclose a material fact

concerning the health effects or addictive nature of smoking

cigarettes or both; five, R.J. Reynolds Tobacco Company

agreed to conceal or omit information regarding the health

effects of cigarettes or their addictive nature with the intention

that smokers and the public would rely on this information to

their detriment; six, R.J. Reynolds Tobacco Company sold or

supplied cigarettes that were defective; seven, R.J. Reynolds

Tobacco Company was negligent.

These findings do not establish that Reynolds is liable

for the plaintiff in this case, nor do they establish whether

Elmer P. Baker was injured by Reynolds’ conduct, nor the

degree, if any, to which Reynolds’ conduct was a legal

cause of Elmer P. Baker’s lung cancer and death.

....

On plaintiff’s negligence claim, the issue for your

determination is whether the negligence of the defendant was

a legal cause of Elmer P. Baker’s lung cancer and death. . . .

....

Negligence is a legal cause of lung cancer and death if it

directly and in natural and continuous sequence produces or

contributes substantially to producing such lung cancer and

death, so that it can reasonably be said that, but for the

negligence, the lung cancer and death would not have

occurred.

In order to be regarded as a legal cause of lung cancer and

death, negligence need not be the only cause. Negligence may

be a legal cause of lung cancer and death, even though it

operates in combination with the act of another or some other

cause if the negligence contributes substantially to producing

such lung cancer and death.

On plaintiff’s strict liability claim, the issue for your

determination is whether the defective and unreasonably

dangerous cigarettes placed on the market by the defendant

were a legal cause of Elmer P. Baker’s lung cancer and death.

(Emphasis added).

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In accord with these instructions, the proposed verdict form—which the

trial court also adopted at Plaintiff’s request—was worded as follows:

1. Was Elmer P. Baker addicted to cigarettes containing

nicotine and, if so, was such addiction a legal cause of his

lung cancer and death?

Yes______ No______

If your answer to question 1 is NO, then your verdict on all

claims is for Defendant, R.J. Reynolds Tobacco Company, and

you should not proceed further except to date and sign the

Verdict Form and return it to the Courtroom.

If your answer to Question 1 is YES, please answer

questions 2, 3, 4 and 5.

2. Was the negligence of R.J. Reynolds Tobacco Company a

legal cause of Elmer P. Baker’s lung cancer and death?

Yes______ No______

3. Were the defective and unreasonably dangerous cigarettes

placed on the market by R.J. Reynolds Tobacco Company a

legal cause of Elmer P. Baker’s lung cancer and death?

Yes______ No______

4. Please state whether Elmer P. Baker reasonably relied to

his detriment on any statement by R.J. Reynolds Tobacco

Company which concealed or omitted material information

concerning the health effects and/or addictive nature of

smoking cigarettes, and if so, whether such reliance was a

legal cause of his lung cancer and death.

4(a) Before May 5, 1982? Yes___ No___

4(b) After May 5, 1982? Yes___ No___

4(c) Both before and after May 5, 1982? Yes___ No___

5. Please state whether Elmer P. Baker reasonably relied to

his detriment on any act done in furtherance of the

defendant’s agreement to conceal or omit material information

concerning the health effects and/or addictive nature of

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smoking cigarettes, and if so, whether such reliance was a

legal cause of his lung cancer and death.

5(a) Before May 5, 1982? Yes___ No___

5(b) After May 5, 1982? Yes___ No___

5(c) Both before and after May 5, 1982? Yes___ No___

If you answered NO to questions 2, 3, 4 and 5, then your

verdict on all claims is for the Defendant R.J. Reynolds

Tobacco Company, and you should not proceed further

except to date and sign the Verdict Form and return it to the

Courtroom.

(Emphasis added).

The jury answered “yes” to question 1, but answered “no” to each

question and subsection of questions 2, 3, 4 and 5. Plaintiff then argued

to the trial court for the first time that the jury’s class-membership finding

was inconsistent with their other findings that neither negligence nor a

product defect legally caused Mr. Baker’s injuries. The trial court

ultimately denied Plaintiff’s request for a new trial and entered judgment

for Defendant on all of Plaintiff’s claims. This appeal ensued.

Plaintiff contends that the jury’s verdict was internally inconsistent

because it found Mr. Baker was a member of the Engle class, yet also found

his lung cancer and death were not caused by Defendant’s negligence nor

by unreasonably dangerous and defective cigarettes. She argues that

when the jury found that Mr. Baker was a member of the Engle class, they

were therefore precluded from finding that his lung cancer and death were

not caused by Defendant’s negligence. In response, Defendant asserts

that any claimed inconsistency was the direct result of Plaintiff’s own jury

instructions and verdict form and is invited error.

Under “the invited error rule ‘a party cannot successfully complain

about an error for which he or she is responsible or of rulings that he or

she has invited the trial court to make.’” Fuller v. Palm Auto Plaza, Inc.,

683 So. 2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Vill. Key &

Saw Shop, Inc., 656 So. 2d 475, 478 (Fla. 1995)); see also Muina v.

Canning, 717 So. 2d 550, 553 (Fla. 1st DCA 1998); Weber v. State, 602 So.

2d 1316, 1319 (Fla. 5th DCA 1992) (“[C]ounsel should not be allowed to

sandbag the trial judge by requesting and approving an instruction they

know or should know will result in an automatic reversal, if given.”). Thus,

“[a] party cannot claim as error on appeal that which he invited or

introduced below.” Fuller, 683 So. 2d at 655 (citation and internal

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quotation marks omitted)). Consistent with these principles, the “failure

to object to the [jury] instructions estops [a party] from arguing an

inconsistent verdict.” Dial v. State, 922 So. 2d 1018, 1021 n.1 (Fla. 4th

DCA 2006); see also McKee v. State, 450 So. 2d 563, 564 (Fla. 3d DCA

1984) (“the defendant is estopped from advancing the claim of inconsistent

verdicts,” because “the defendant not only failed to object to the

instructions, but also expressed his agreement to its submission”).

Florida Rule of Civil Procedure 1.470(b) also states: “No party may

assign as error the giving of any instruction unless the party objects

thereto at such time . . . .” See Jenkins v. State, 380 So. 2d 1042, 1044

(Fla. 4th DCA 1980) (“[T]he failure to make timely objection constitutes a

waiver of the objection.”). “This requirement is based on practical

necessity and basic fairness in the operation of a judicial system. . . . [And

it] prevents counsel from allowing errors in the proceedings to go

unchallenged and later using the error to a client’s tactical advantage.”

Insko v. State, 969 So. 2d 992, 1001 (Fla. 2007) (citations and internal

quotation marks omitted).

Plaintiff cites to Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla.

2013), to support her request for a new trial. In that case, the Florida

Supreme Court found that legal causation for the strict liability claim in

Engle-progeny cases is “established by proving that addiction to the Engle

defendants’ cigarettes containing nicotine was a legal cause of the injuries

alleged.” Id. at 429. Plaintiff argues that under Douglas, once the jury

found Mr. Baker was a member of the Engle class, they were prohibited

from finding that Mr. Baker’s addiction to Defendant’s cigarettes was not

the legal cause of his illness and death.

The Douglas opinion was issued after the trial in this cause, and there

is uncertainty whether its holding represents a change in the law, or is a

mere clarification of existing law. Even assuming arguendo that Douglas

is a change in the governing law, Plaintiff was still obliged to preserve her

argument by stating an objection at trial in order to benefit from that

change. See Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (finding

“that any decision of this Court announcing a new rule of law, or merely

applying an established rule of law to a new or different factual situation,

must be given retrospective application by the courts of this state in every

case pending on direct review or not yet final. Art. I, §§ 9, 16, Fla. Const.

To benefit from the change in law, the defendant must have timely objected

at trial if an objection was required to preserve the issue for appellate

review.”). Because Plaintiff did not object to the submission of the

instructions or the verdict form to the jury, our supreme court’s decision

in Douglas does not retroactively apply.

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In response to the claim of invited error, Plaintiff contends she was

required to propose these jury instructions to the trial court, which

included separate legal causation questions, pursuant to this court’s

decision in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th

DCA 2011). In that case, this court found that “post-Engle plaintiffs still

must prove the remaining elements of each legal theory alleged. Trial

courts must instruct the jury on the remaining elements, causation,

comparative fault, and damages and allow the jury to make those

decisions.” Id. at 718. However, at the time of trial in this matter, the

issue of how to apply Engle findings was still in jurisprudential

development. We specifically noted this situation in Brown, and

highlighted the conflict among various courts on the issue presented to

the trial court:

From a jurisprudence standpoint, the issue of how to apply

the Engle findings is in its infancy. Presently, two opinions

have addressed the issue: R.J. Reynolds Tobacco Co. v.

Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) and Brown v. R.J.

Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010). In

Martin, the First District concluded that the Engle Phase I

findings established the conduct elements of the asserted

claims. Martin, 53 So. 3d at 1069. Martin also determined

the plaintiff in that case had proven legal causation on her

negligence and strict liability claims. Id. In making that

determination, the Martin court pointed to the trial court’s

instruction on legal causation with respect to addiction, which

established plaintiff’s membership in the class. Id. We read

Martin to approve the use of the class membership instruction

for the dual purpose of satisfying the element of legal

causation with respect to addiction and legal causation on the

underlying strict liability and negligence claims.

In contrast, the Eleventh Circuit in Brown refused to give

the Engle findings such broad application. Brown determined

that the Florida Supreme Court’s discussion of the res

judicata effect of the Phase I findings necessarily referred to

issue preclusion. 611 F.3d at 1333. Under that doctrine, “the

Phase I approved findings may not be used to establish facts

that were not actually decided by the jury.” Id. at 1334.

Brown remanded the case to the district court to determine

the scope of the factual issues decided in Engle Phase I, and

then to decide “which, if any, elements of the claims [were]

established” by those findings. Id. at 1336. “Until the scope of

the factual issues decided in the Phase I approved findings is

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determined, it is premature to address whether those findings

by themselves establish any elements of the plaintiffs’ claims.”

Id. (emphasis added). We conclude that the Martin court did

not go far enough and the Brown court went too far.

Brown, 70 So. 3d at 714-15.

Whether plaintiffs in tobacco cases post-Engle had to prove more than

mere class membership and damages was an unsettled area of law prior

to Douglas. By seeking to have the jury separately decide the issue of

causation, and without raising the issue of what effect should be given to

an Engle class finding, Plaintiff failed to preserve her right to appeal and

cannot now successfully claim error simply because the jury returned an

adverse verdict. See Gupton, 656 So. 2d at 478; see also Sheffield v.

Superior Ins. Co., 800 So. 2d 197, 202-03 (Fla. 2001) (stating that under

the rule of invited error, “‘a party may not make or invite error at trial and

then take advantage of the error on appeal.’” (quoting Goodwin v. State,

751 So. 2d 537, 544 n.8 (Fla. 1999))). Further, Plaintiff’s failure to object

prevents us from revisiting the jury verdict because “[t]he jury cannot be

faulted for doing exactly what it was instructed to do.” See Plana v. Sainz,

990 So. 2d 554, 557 (Fla. 3d DCA 2008); see also Beverly Health & Rehab.

Servs., Inc. v. Freeman, 709 So. 2d 549, 551 (Fla. 2d DCA 1998) (holding

that plaintiff waived error by agreeing to the verdict form); Papcun v. Piggy

Bag Disc. Souvenirs, Food & Gas Corp., 472 So. 2d 880, 881 (Fla. 5th DCA

1985) (citing to well-established Florida law and stating that “failure to

object to a verdict form regarding defects not of a constitutional or

fundamental character constitutes a waiver of such defects”). As such,

Plaintiff waived any argument that the alleged inconsistency is grounds for

a new trial. See Cocca v. Smith, 821 So. 2d 328, 330-31 (Fla. 2d DCA

2002).

We find the Plaintiff’s remaining issues on appeal to be without merit,

and hereby affirm the trial court’s denial of Plaintiff’s motion for new trial.

Affirmed.

STEVENSON and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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