Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. JANICE DURRANCE JONES and JULIAN DALE DURRANCE, as personal representatives for the Estate of Dorothy Watson Durrance, Appellees. No. 2D19-3537 April 20, 2022 Appeal from the Circuit Court for Hillsborough County; Martha J. Cook, Judge. Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa; and Jason T. Burnette, Jones Day, Atlanta, Georgia, for Appellant. David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota; James W. Gustafson, Jr., Brian R. Denney, Laurie J. Briggs, and T. Hardee Bass, III, of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach; and Hutch Pinder of Whittmore Law Group, St. Petersburg, for Appellees. ON REMAND FROM THE SUPREME COURT OF FLORIDA MORRIS, Chief Judge. We have this case on remand from the Florida Supreme Court "for reconsideration upon application of [the Florida Supreme Court's] decision" in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 125 (Fla. 2021). See R.J. Reynolds Tobacco Co. v. Jones, No. SC21-495, 2022 WL 342916 (Fla. Feb. 4, 2022).1 Upon application of Sheffield, we reverse the portion of the final judgment awarding punitive damages and remand for further proceedings. 1 In our prior decision, R.J. Reynolds Tobacco Co. v. Jones, 312 So. 3d 1019, 1021 (Fla. 2d DCA 2021), this court affirmed the final judgment entered in favor of R.J. Reynolds Tobacco Co. after a jury trial, specifically holding that "the trial court properly applied the pre-1999 version of the punitive damages statute to the wrongful death action in this case." This court reasoned that even though "the decedent died of a tobacco-related disease—chronic obstructive pulmonary disease—in 2000," her disease had manifested prior to the class certification date set forth in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). Jones, 312 So. 3d at 1021. We relied on precedent from this court, R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2017), and we certified conflict with a Fifth District case, R.J. Reynolds Tobacco Co. v. Sheffield, 266 So. 3d 1230 (Fla. 5th DCA 2019), rev. granted, No. SC19-601 (Fla. Aug. 13, 2020). Jones, 312 So. 3d at 1021. R.J. Reynolds Tobacco Co. then sought review of our Jones decision in the supreme court. R.J. Reynolds Tobacco Co. v. Jones, No. SC21-495 (notice of invoking discretionary jurisdiction filed on March 31, 2021). The Florida Supreme Court subsequently decided Sheffield, 329 So. 3d 114, 2 In Sheffield, the supreme court held that "the relevant 1999 amendments to section 768.73 apply in Engle[2] progeny wrongful death actions in which the decedent died after the effective date of the amendments." 329 So. 3d at 125. The court reasoned that the amendments clearly apply to all causes of action arising after October 1, 1999, id. at 116 (quoting ch. 99-225, § 23, at 1418, § 36, at 1428, Laws of Fla.), and that a wrongful death cause of action arises upon death, id. at 119. Pursuant to Sheffield, 329 So. 3d at 125, the 1999 version of section 768.73 applies to the wrongful death action in this case because the decedent died on May 10, 2000, after the effective date of the amendments. The 1999 version contains the following limitations on punitive damages: (2)(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term "the which disapproved of Evers, 232 So. 3d 457, and approved of the Fifth District's decision in Sheffield, 266 So. 3d 1230. 2 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). 3 same act or single course of conduct" includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product. (b) In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, 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, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant's act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court. § 768.73, Fla. Stat (1999). The trial court applied and instructed the jury on the pre-1999 version of the punitive damages statute at issue, which did not contain the limiting language cited above. See § 768.73, Fla. Stat. (1990-1998). Accordingly, we reverse the portion of the judgment awarding punitive damages and remand for further proceedings in accordance with Sheffield, 329 So. 3d 114, and the 1999 version of section 768.73. As the Fifth District noted in R.J. Reynolds Tobacco Co. v. Sheffield, 266 So. 3d 1230, 1238 n.7 (Fla. 5th DCA 2019), approved, 329 So. 3d 114 (Fla. 2021), 4 "whether the punitive damages award will be stricken or whether a new trial limited to punitive damages must take place depends" on the trial court's initial determination, under section 768.73(2)(b), of whether "the amount of prior punitive damages awarded was insufficient to punish" R.J. Reynolds Tobacco Co.'s behavior. The final judgment is otherwise affirmed without comment. Affirmed in part; reversed in part; remanded. LaROSE and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 5