Florida Court Affirms $20M In Punitives, Citing Tobacco Company’s Inaction

by Tara Arick on June 18, 2013 · 0 comments

in Civil Procedure

- From LexisNexis® Mealey’s™ Daily Legal News.

A Florida appeals court has affirmed a $ 20 million punitive damages verdict in a tobacco wrongful death case, saying in a June 13 opinion that the defendant waived its right to object to an error in a previous appellate ruling (R.J. Reynolds Tobacco Company v. Lyantie Townsend, No. ID104585, Fla. App., 1st Dist.).

The jury’s original May 2010 award was $ 40.8 million in punitive damages, but the First District Court of Appeal in March 2012 struck that as excessive and directed Alachua County Judge Victor L. Hulslander of the Eighth Judicial Circuit to give R.J. Reynolds Tobacco Co. (RJR) a choice between accepting remittitur to be determined by Judge Hulslander or a new trial.

Judge Hulslander set remittitur at $ 20 million, which the appellate panel found reasonable, but RJR said that the appellate court’s 2012 language that remand was “for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment on the punitive damages award to be established by the trial court,” conflicts with Section 768.74(4) of Florida Statutes as interpreted by Florida’s Supreme Court in Waste Management, Inc. v. Mora (940 So. 2d 1105 [Fla. 2006]).

The First District panel agreed on the substance but said RJR waived that position by failing to raise it immediately with the appellate court. Once the directive went back to the trial court, the panel said, the appellate decision, correct or not, became the law of the case.

Instructed To Do

“Appellant is now asking this court to reverse the trial court for doing exactly what it was instructed to do, without Appellant first alerting this court that the procedure we instructed the trial court to follow was erroneous under Mora,” the panel said. “This is precisely the scenario that rule 9.330(a) [Florida Rules of Appellate Procedure] is meant to address. As we explained in Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011), where a court’s error appears for the first time on the face of a final order, the failure to file a motion for rehearing or other available motion in an attempt to correct the error results in the failure to preserve an otherwise meritorious argument.”

Lyantie Townsend sued RJR on behalf of her late husband, Frank Townsend. They were married in 1956 and enjoyed a “very close relationship” until Frank Townsend’s death at 59, just as Lyantie Townsend was about to join her husband in retirement “and realize their life-long dream of traveling together.”

Counsel

Townsend is represented by Steven Brannock, Celene H. Humphries and Tyler K. Pitchford of Brannock & Humphries in Tampa, Fla., Gregory D. Prysock and Katherine M. Massa of Morgan & Morgan in Jacksonville, Fla., and Keith R. Mitnik of Morgan & Morgan in Orlando, Fla.

RJR is represented by Gregory G. Katsas of Jones Day in Washington, D.C.; Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day in Atlanta; and Charles M. Trippe, Jr., Robert B. Parrish, Jeffrey A. Yarbrough and David C. Reeves of Moseley, Prichard, Parrish, Knight & Jones in Jacksonville.

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