IN THE SUPREME COURT OF FLORIDA

TALLAHASSEE, FLORIDA

CASE NO. SC12-2155

R. J. REYNOLDSTOBACCO COMPANY,

Petitioner,

-vs-

JAN GROSSMAN, as PersonalRepresentative of the ESTATE OFLAURA GROSSMAN, Deceased,

Respondent.

AMENDED ANSWER BRIEF OF RESPONDENT ON JURISDICTIONOn appeal from the Fourth District Court of Appeal of the State of Florida

SCHLESINGER LAW OFFICES, P.A.1212 Southeast Third AvenueFt. Lauderdale, FL 33316

andBURLINGTON & ROCKENBACH, P.A.Courthouse Commons/Ste. 430444 West Railroad AvenueWest Palm Beach, FL 33401(561) 721-0400Attorneys for Respondent

bdr@FLAppellateLaw.comfa@FLAppellateLaw.com

TABLEOFCONTENTS

PAGE

TABLE OF AUTHORITIES iii-iv

PREFACE v

SUMMARY OF ARGUMENT 1

ARGUMENT l-10

POINT I l-6

THE FOURTH DISTRICT'S FABRE HOLDING DOESNOT CONFLICT WITH THE DECISIONS OF THISCOURT AND THE DISTRICT COURTS, BECAUSE,UNLIKE THOSE DECISIONS, WHICH INVOLVEDTHE INCORRECT EXCLUSION OF NONPARTYDEFENDANTS, THIS CASE INVOLVED THEINCORRECT INCLUSION OF A NONPARTY.

POINT II 6-10

THE FOURTH DISTRICT'S DECISION DID NOTMISAPPLY THIS COURT'S DECISION IN ENGLEI_II, WHICH EXPRESSLY HELD CERTAIN JURYFINDINGS IN THE DECERTIFIED CLASS ACTIONWILL HAVE PRECLUSIVE EFFECT.

CONCLUSION 10

CERTIFICATE OF SERVICE 11

CERTIFICATE OF TYPE SIZE & STYLE 12

11

TABLE OF AUTHORITIES

PAGE

Cases

Am. Aerial Lift, Inc. v. Perez,629 So.2d 169 (Fla. 3d DCA 1993) 4

Collins v. State,26 So.3d 1287 (Fla. 2009) 9, 10

Dep't of Rev. v. Johnston,442 So.2d 950, 950 (Fla. 1983) 2

Engle v. Liggett Group, Inc. (Engle III),945 So.2d 1246 (Fla. 2006) 1, 2, 6, 7, 8, 9, 10

Fabre v. Marin,

623 So.2d 1182 (Fla. 1983) 2, 4

Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc.,67 So.3d 187, 189 n.1 (Fla. 2011) 7

Fla. Star v. B.J.F.,530 So.2d 286, 288 & n.3 (Fla. 1988) 8

Loureiro v. Pools by Greg, Inc.,698 So.2d 1262, 1263 (Fla. 4th DCA 1997) 5

Nash v. Wells Fargo Guard Services, Inc.,678 So.2d 1262 (Fla. 1996) 1, 2, 3, 5, 6

Philip Morris USA, Inc. v. Douglas,83 So.3d 1002, 1011 (Fla. 2d DCA 2012) 9, 10

Philip Morris USA, Inc. v. Naugle,37 Fla. L. Weekly D1499, at *2 (Fla. 4th DCA 2012) 9

R.J. Reynolds Tobacco Co. v. Brown,70 So.3d 707, 716 (Fla. 4th DCA 2011) 8, 9

111

R.J. Reynolds Tobacco Co. v. Grossman,96 So.3d 917 (Fla. 4th DCA 2012) iv, 1, 2, 4, 6, 7, 8, 9, 10

R.J. Reynolds Tobacco Co. v. Koballa,37 Fla. L. Weekly D2523 (Fla. 5th DCA 2012) 9

R.J. Reynolds Tobacco Co. v. Townsend,90 So.3d 307, 310 (Fla. 1st DCA 2012) 9

Regions Bank v. Capital Square, Inc.,

83 So.3d 900 (Fla. 3d DCA 2012) 3, 4, 5

Schindler Corp. v. Ross,625 So.2d 94, 96 (Fla. 3d DCA 1993) 4

Schindler Elevator Corp. v. Viera (Viera I),644 So.2d 563 (Fla. 3d DCA 1994) 4

Schindler Elevator Corp. v. Viera (Viera II),693 So.2d 1106 (Fla. 3d DCA 1997) 3

Sheppard v. State,988 So.2d 74 (Fla. 2d DCA 2008), quashed, 17 So.3d 275 (Fla. 2009) 10

Shufflebarger v. Galloway,668 So.2d 996, 997 (Fla. 3d DCA 1996) 4

Steadman v. Liberty Mut. Ins. Co.,932 So.2d 1034 (Fla. 2006) 10

Waggoner v. R.J. Reynolds Tobacco Co.,835 F. Supp. 2d 1244, 1267-77 (M.D. Fla. 2011) 9

Constitutional Provisions

Article V, §3(b)(3), Fla. Const. 2, 7

lv

PREFACE

This is Respondent's, JAN GROSSMAN, as Personal Representative of the

ESTATE OF LAURA GROSSMAN, Deceased, Response to Petitioner R.J.

Reynolds Tobacco Company's ("R.J. Reynolds") request for discretionary review

of the Fourth District Court's decision in R.J. Reynolds Tobacco Co. v. Grossman,

96 So.3d 917 (Fla. 4th DCA 2012). The Petitioner will be referred to as "R.J.

Reynolds" or "Petitioner." The Respondent will be referred to as "the Estate" or

"Respondent." The Fourth District's Opinion, which was attached to the

Petitioner's Brief on Jurisdiction as an Appendix, will be cited as "A." The

Petitioner's Brief on Jurisdiction will be cited as "PB."

V

SUMMARYOFARGUMENT

This Court does not have discretionary jurisdiction of R.J. Reynolds

Tobacco Co. v. Grossman, 96 So.3d 917 (Fla. 4th DCA 2012), because it does not

conflict with any decisions of this Court or of other District Courts of Appeal.

First, Grossman does not conflict with Nash v. Wells Fargo Guard Services,

Inc., 678 So.2d 1262 (Fla. 1996), or district court decisions limiting retrials in

Fabre-error cases. Unlike Nash and the other cases, which involved the marginally

prejudicial exclusion of a Fabre defendant, this case involved the very prejudicial

inclusion of a nonparty who bore no fault.

Second, Grossman did not misapply Engle v. Liggett Group, Inc. (Engle III),

945 So.2d 1246 (Fla. 2006), when it gave preclusive effect to certain Engle

findings. In Engle III, this Court held that those findings were preclusive.

ARGUMENT

POINT I

THE FOURTH DISTRICT'S FABRE HOLDING DOESNOT CONFLICT WITH THE DECISIONS OF THISCOURT AND THE DISTRICT COURTS, BECAUSE,UNLIKE THOSE DECISIONS, WHICH INVOLVEDTHE INCORRECT EXCLUSION OF NONPARTYDEFENDANTS, THIS CASE INVOLVED THEINCORRECT INCLUSION OF A NONPARTY.

Contrary to Petitioner's argument, this Court does not have discretionary

conflict jurisdiction of the Fourth District's decision in R.J. Reynolds Tobacco Co.

1

v. Grossman, 96 So.3d 917 (Fla. 4th DCA 2012), under Article V, §3(b)(3), of the

Florida Constitution. This Court's decision in Nash v. Wells Fargo Guard

Services, Inc., 678 So.2d 1262 (Fla. 1996), and the other decisions R.J Reynolds

cites did not create a "rule" that all errors regarding Fabre parties must absolutely

be treated exactly the same way. In fact, there is nothing in this Court's opinion in

Nash which took away the district courts' discretion to correct errors which

occurred during trial. R.J. Reynolds misses the context of the three cases on which

it relies. Those cases are clearly distinguishable from this case and, thus, they do

not apply. Accordingly, there is no conflict, and no basis for jurisdiction. See

Dep't of Rev. v. Johnston, 442 So.2d 950, 950 (Fla. 1983) (declining jurisdiction

where cases were distinguishable).

The instant case is an Englel progeny case. As recounted by the Fourth

District, "[o]ver the Estate's objection, the trial court allowed R.J. Reynolds to

include Jan [the husband of Laura, the decedent] on the verdict form as a negligent

party and allowed evidence and argument concerning his failure to prevent Laura

from smoking." Grossman, 96 So.3d at 919. The Fourth District held that Jan

should not have been included as a Fabre2 defendant because R.J. Reynolds failed

to establish that Jan breached any legal duty to Laura. Id. at 920-21.

1 Engle v. Liggett Group, Inc. (Engle III), 945 So.2d 1246 (Fla. 2006).

2 Fabre v. Marin, 623 So.2d 1182 (Fla. 1983).

2

In determining the Estate's remedy, the Fourth District agreed with the

Estate's argument that Jan's inclusion on the verdict form prejudiced the jury

against him, which prejudice may have infected its determination of damages and

apportionment. Id. at 921-22. It therefore "revers[ed] the final judgment and

remand[ed] the case for an entirely new trial on all Phase II issues." Id. at 922.

R.J. Reynolds incorrectly argues that a new trial on more than just

apportionment of damages is contrary to this Court's decision in Nash, 678 So.2d

1262, the Third District's decisions in Regions Bank v. Capital Square, Inc., 83

So.3d 900 (Fla. 3d DCA 2012), and Schindler Elevator Corp. v. Viera (Viera II),

693 So.2d 1106 (Fla. 3d DCA 1997). That line of cases does not apply to the

instant case because, unlike those cases, this case involves the incorrect inclusion

of a nonparty on the verdict form. The error of allowing Reynolds to blame Jan for

his wife's death created wide-ranging prejudice that was absent in R.J. Reynolds'

nonparty-exclusion cases.

In Nash, a defendant that was named in the complaint attempted to have a

nonparty it believed to also be liable included on the verdict form. See 678 So.2d

at 1263. The trial court denied the motion. Id. The case proceeded to the jury

without that nonparty on the verdict form, and the jury awarded damages to the

plaintiff. Id. On appeal, the First District reversed and remanded for a new trial,

citing Fabre, but the appellate court "did not limit the scope of the new trial to the

3

issues of liability and apportionment of fault." Id.

In quashing the First District's opinion, this Court stated:

We accepted jurisdiction in this case because in similar cases theThird District Court of Appeal has limited the scope of the new trial toliability and apportionment issues. We agree with the Third DistrictCourt of Appeal that a reversal precipitated by Fabre errors does notaffect the determination of damages. As a consequence, the reversal inthis case should not have been extended to a new trial on damages.

Id. at 1263-64 (citing Schindler Elevator Corp. v. Viera (Viera I), 644 So.2d 563

(Fla. 3d DCA 1994); Am. Aerial Lift, Inc. v. Perez, 629 So.2d 169 (Fla. 3d DCA

1993); Schindler Corp. v. Ross, 625 So.2d 94, 96 (Fla. 3d DCA 1993)).3

The two other cases R.J. Reynolds cites as creating conflict with Grossman

likewise involved the incorrect exclusion of Fabre defendants, not, as in the instant

case, the incorrect inclusion of a nonparty. In Viera II, the Third District stated

that, "where a jury has been prevented from properly considering apportionment

because a Fabre nonparty was erroneously omitted from the verdict form, the

solution is a new trial limited to the apportionment issue, not a new trial on all

liability issues." Vierra II, 693 So.2d at 1108 (emphasis added) (discussing

Shufflebarger v. Galloway, 668 So.2d 996, 997 (Fla. 3d DCA 1996) (en banc)).

In Regions Bank, the trial court failed to give Fabre instructions that the

defendant requested, which instructions would have directed the jury to allocate

3 Viera I, Perez, and Ross similarly involved the incorrect exclusion of Fabredefendants from jury verdict forms.

4

fault between it, the plaintiff, and the plaintiff's accountants, a nonparty to the

lawsuit. Regions Bank, 83 So.3d at 901-02. The Third District held that the trial

court's failure was error: "We follow Nash, in concluding that a reversal

precipitated by Fabre errors does not affect the determination of damages and

should not require a new trial on damages." Id. at 902. Thus, the Third District

"revers[ed] and remand[ed] for a new trial solely on the issue of apportionment

between the parties and non-parties . . . ." Id. at 902-03.

R.J. Reynolds reads Nash, Viera II, and Regions Bank too broadly. As

noted, those cases concerned only the incorrect exclusion of Fabre defendants. See

Loureiro v. Pools by Greg, Inc., 698 So.2d 1262, 1263 (Fla. 4th DCA 1997)

("[T]he Nash holding narrowly addresses the issue of damages on a retrial of a

Fabre omission case."). This case, however, involves the incorrect inclusion of a

nonparty, and the Fourth District's decision that all Phase II issues must be retried

is designed to remedy the prejudice caused by that error.

To the extent the Nash line created a rule, it simply does not apply to the

instant case. In cases like Nash, the holding that a retrial would be limited to

apportionment of fault, and not damages, makes sense. That error affects only to

what degree each named defendant and Fabre defendant is responsible for the

plaintiff's damages; presumably, the jury would have arrived at the same overall

damages amount if the error had not been committed. Stated differently, the

5

prejudice to the complaining defendant is simply that the jury could not apportion

some fault to the Fabre defendant, and the retrial is necessary to reapportion fault

among the parties, including the improperly omitted Fabre party.

By contrast, the incorrect inclusion of a nonparty creates a wide-ranging

prejudice to a plaintiff. For example, in this case, the incorrect inclusion of Jan on

the verdict form allowed R.J. Reynolds to present "evidence and argument

concerning his failure to prevent Laura from smoking" Grossman, 96 So.3d at

919. As the Estate argued, "R.J. Reynolds presented Jan as a callous and uncaring

spouse, and the jury responded by awarding a small amount of damages for the

loss of his wife." Id. at 921. Clearly, the effects of the error in this case were not

limited to a party being responsible for more of a damages award than it would be

had a Fabre defendant not been improperly excluded.

Because this case was not controlled by Nash and its progeny, the Fourth

District's opinion could not and did not conflict with Nash and the other cases.

See Johnston, 442 So.2d at 950. Accordingly, there is no basis for this Court's

discretionary jurisdiction.

POINT H

THE FOURTH DISTRICT'S DECISION DID NOTMISAPPLY THIS COURT'S DECISION IN ENGLEIII, WHICH EXPRESSLY HELD CERTAIN JURYFINDINGS IN THE DECERTIFIED CLASS ACTIONWILL HAVE PRECLUSIVE EFFECT.

6

There is also no basis for this Court's discretionary conflict jurisdiction of

the Fourth District's decision in R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d

917 (Fla. 4th DCA 2012), under Article V, §3(b)(3), of the Florida Constitution. In

Grossman, the Fourth District did not misapply this Court's decision in Engle v.

Liggett Group, Inc. (Engle III), 945 So.2d 1246 (Fla. 2006). See Fla. Ins. Guar.

Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So.3d 187, 189 n.1 (Fla. 2011)

("Misapplication of our precedent provides a basis for express and direct conflict

jurisdiction." (citations omitted)). Indeed, this Court expressly held that certain

jury findings in Engle III will have preclusive effect.

In Engle III, this Court agreed with the Third District that the smokers' class

action against tobacco companies was no longer viable for later phases of the

litigation, "because individualized issues such as legal causation, comparative

fault, and damages predominate" Engle III, 945 So.2d at 1268. It then held:

The pragmatic solution is to now decertify the class, retaining thejury's Phase I findings other than those on the fraud and intentionalinfliction of emotion distress claims, which involved highlyindividualized determinations, and the finding on entitlement topunitive damages questions, which was premature. Class memberscan choose to initiate individual damages actions and the Phase Icommon core findings we approved above will have res judicataeffect in those trials.

Id. at 1269 (emphasis added). The Court specified which of the ten findings were

preclusive and repeated that "these findings in favor of the Engle Class can stand."

See id. at 1255, 1257 n.4, 1276-77.

7

Since this Court expressly held that certain Engle findings are preclusive,

R.J. Reynolds' argument to the contrary has no basis in law. Further, the Fourth

District has faithfully followed the Court's holding. See R.J. Reynolds Tobacco

Co. v. Brown, 70 So.3d 707, 716 (Fla. 4th DCA 2011). In the instant case, the

Fourth District continued its adherence to Engle III when it relied on Brown to

reject R.J. Reynolds' preclusion argument. See Grossman, 96 So.3d at 918-19.

Accordingly, there is no basis for this Court's jurisdiction.

In an attempt to confuse the issues, R.J. Reynolds mixes into its preclusion

argument a separate argument that the preclusive use of the Engle findings violates

its due process rights. It is hard to see how this affects the Court's jurisdiction.

Due process was not mentioned in the Fourth District's decision in Grossman, so

there is nothing in Grossman that could possibly create conflict on the issue. See

Fla. Star v. B.J.F., 530 So.2d 286, 288 & n.3 (Fla. 1988) (stating that "[t]his Court

in the broadest sense has subject-matter jurisdiction . . . over any decision of a

district court that expressly addresses a question of law within the four corners of

the opinion itself," but not "over a district court opinion that fails to expressly

address a question of law" (emphasis added)).

Even if the Fourth District had made an express statement in Grossman that

the preclusive use of the Engle findings did not violate due process, R.J. Reynolds'

8

due process argument has been roundly rejected by Florida's district courts 4 Thus,

such an express statement in Grossman could not create a conflict, where there is

nothing with which to conflict.

It is true, as R.J. Reynolds notes (PB 8), that this Court has granted review of

an Engle progeny case raising the due process argument. See Philip Morris USA,

Inc. v. Douglas, 83 So.3d 1002, 1011 (Fla. 2d DCA 2012) (rejecting the due

process argument but certifying a question of great public importance on the

argument to this Court), review granted, SCl2-617 (Fla. May 15, 2012); see also

R.J. Reynolds Tobacco Co. v. Koballa, 37 Fla. L. Weekly D2523 (Fla. 5th DCA

2012) (on motion for written opinion) (same as Douglas).

However, the Fourth District certified no similar question in this case. That

this Court has granted jurisdiction in Douglas does not affect whether the Court has

jurisdiction here. R.J. Reynolds states that, "[a]t the very least, the Court should

hold this case pending a resolution of Brown [where this Court has not accepted

jurisdiction] and Douglas to ensure consistent treatment among cases presenting

identical issues" (PB 8-9). The problem is that the decision R.J. Reynolds cites to

support its request, Collins v. State, 26 So.3d 1287 (Fla. 2009) (mem.), is

4 See, e.g., Brown, 70 So.3d at 716; Philip Morris USA, Inc. v. Naugle, 37 Fla. L.Weekly D1499, at *2 (Fla. 4th DCA 2012); R.J. Reynolds Tobacco Co. v.Townsend, 90 So.3d 307, 310 (Fla. 1st DCA 2012). Additionally, the UnitedStates District Court for the Middle District of Florida thoroughly dismantled theEngle due process argument in Waggoner v. R.J. Reynolds Tobacco Co., 835 F.Supp. 2d 1244, 1267-77 (M.D. Fla. 2011).

9

distinguishable.

As this Court noted in Collins, the Second District "cited as authority [in its

citation PCA] its decision in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008),

quashed, 17 So.3d 275 (Fla. 2009)" Collins, 26 So.3d at 1288. This Court had

jurisdiction in Collins because, at the time the Second District issued its opinion in

that case, "Sheppard was pending review in this Court." Id. The Court "stayed

proceedings in [Collins] pending [its] disposition of Sheppard." Id. Having

quashed Sheppard, this Court then accepted jurisdiction of Collins, granted the

petition for review, and quashed the Second District's opinion. Id.

The basis for conflict jurisdiction in Collins-that the district court had cited

as precedent a case that was pending review in the Court, see Steadman v. Liberty

Mut. Ins. Co., 932 So.2d 1034 (Fla. 2006)-is not applicable to the instant case. In

Grossman, the Fourth District did not cite Douglas.

In sum, the Fourth District in Grossman did not misapply Engle III, express

any statement on due process, certify any question of great public importance, or

cite any case that is currently pending review in this Court. There is simply no

basis for this Court's jurisdiction.

CONCLUSION

For the above reasons, this Court does not have jurisdiction to review the

Fourth District's opinion in Grossman.

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true copy of the foregoing has been electronically

filed with this Court via e-file@ficourts.org, and was furnished to all counsel on

the attached service list, by email, on November 28, 2012.

Steven J. Hammer, Esq.Jonathan Gdanski, Esq.SCHLESINGER LAW OFFICES, P.A.1212 Southeast Third AvenueFt. Lauderdale, FL 33316

andBURLINGTON & ROCKENBACH, P.A.Courthouse Commons/Suite 430444 West Railroad AvenueWest Palm Beach, FL 33401(561) 721-0400Attorneys for Respondentbdr@FLAppellateLaw.comfa LAppel a eLa .com

By:BA D. ROCKENBACHFlorida Bar No. 771783

11

CERTIFICATE OF TYPE SIZE & STYLE

Respondent hereby certifies that the type size and style of the Amended

Answer Brief of Respondent on Jurisdiction is Times New Roman 14pt.

BARD D ROCKENBACHFlorida Bar No. 771783

12

SERVICE LIST

R.J. Reynolds v. GrossmanCase No. SCl2-2155

Gordon James, III, Esq.pamela.olshan@sedgewicklaw.comEric L. Lundt, Esq.eric.lundt@sedgewicklaw.comLenore C. Smith, Esq.lenore.smith@sedgwicklaw.comJonathan.thomas@sedgwicklaw.comCounsel for R.J. Reynolds

Charles R.A. Morse, Esq.cramorse@jonesday.comPaul Reichert, Esq.preichert@jonesday.comJONES DAYCounsel for R.J. Reynolds

13