throbber

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`Supreme Court of Florida
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`____________
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`No. SC17-563
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`GWENDOLYN E. ODOM, etc.,
`Petitioner,
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`vs.
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`R.J. REYNOLDS TOBACCO COMPANY,
`Respondent.
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`September 20, 2018
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`PARIENTE, J.
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`The Fourth District Court of Appeal overturned a multimillion dollar
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`noneconomic damages award to an adult child whose mother died of lung cancer
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`after the jury found through special interrogatories that the decedent’s addiction to
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`cigarettes was a legal cause of her death. See R.J. Reynolds Tobacco Co. v. Odom,
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`210 So. 3d 696, 698 (Fla. 4th DCA 2016). The conflict issue before us arises from
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`the Fourth District’s misapplication of the abuse of discretion standard to the trial
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`court’s denial of a motion for remittitur and creation of a bright-line cap on the
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`amount of noneconomic damages a financially independent adult surviving child
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`may be awarded for the wrongful death of his or her parent.1 Instead of properly
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`applying the abuse of discretion standard and this Court’s well-established
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`precedent, which entitles both a jury’s verdict and a trial judge’s ruling on a motion
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`for remittitur to great deference, the Fourth District relied on four district court of
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`appeal decisions to hold that the trial court erred in denying the motion for
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`remittitur in this case.2 In reaching this holding, the Fourth District made the
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`sweeping statement that “no matter” what the evidence shows, “an adult child who
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`lives independent of the parent during the parent’s smoking related illness and
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`1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; see also Fla. Ins.
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`Guar. Ass’n, v. Devon Neighborhood Ass’n, 67 So. 3d 187, 189 n.1 (Fla. 2011)
`(“Misapplication of our precedent provides a basis for express and direct conflict
`jurisdiction.”). Because the Fourth District’s creation of a bright-line cap and then
`reliance on that cap to reverse the damages award in this case is both apparent from
`the face of the opinion (i.e., express) and irreconcilable with the contrary rule of
`law and abuse of discretion analysis expressly set forth in our precedent (making
`the conflict “direct”), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
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`2. Our relevant precedent is cogently set forth in Bould v. Touchette, 349
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`So. 2d 1181, 1184-85 (Fla. 1977), Lassitter v. International Union of Operating
`Engineers, 349 So. 2d 622, 626-27 (Fla. 1976), and Braddock v. Seaboard Air Line
`Railroad Co., 80 So. 2d 662, 668 (Fla. 1955).
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`In lieu of this Court’s precedent, the Fourth District relied on the following
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`district court of appeal cases to reach its decision in this case: Philip Morris USA
`Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016); R.J. Reynolds Tobacco Co. v.
`Webb, 93 So. 3d 331 (Fla. 1st DCA 2012); MBL Life Assurance Corp. v. Suarez,
`768 So. 2d 1129 (Fla. 3d DCA 2000); Nat’l R.R. Passenger Corp. v. Ahmed, 653
`So. 2d 1055 (Fla. 4th DCA 1995).
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`death is not entitled to [a] multi-million dollar compensatory damages award.”
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`Odom, 210 So. 3d at 701.
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`For the reasons that follow, we hold that the Fourth District misapplied the
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`abuse of discretion standard when reviewing the trial court’s denial of the motion
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`for remittitur. When the abuse of discretion standard is properly applied, we
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`conclude that the trial court did not abuse its discretion in denying the motion by
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`scrupulously following the standard for determining whether a remittitur is
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`appropriate. We further hold that the Fourth District erred in creating a cap on the
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`amount of noneconomic damages a financially independent adult child may be
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`awarded for the wrongful death of his or her parent in conflict with this Court’s
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`precedent. Neither the Legislature nor this Court has established a cap on the
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`amount of noneconomic damages a survivor may recover in a wrongful death
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`action, and we decline to do so today. Accordingly, we quash the Fourth District’s
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`decision and remand for reinstatement of the judgment.3
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`3. The jury in this case also found that punitive damages against R.J.
`Reynolds were warranted. Odom, 210 So. 3d at 698. The punitive damages award
`is not separately challenged, but the effect of the Fourth District’s reversal of the
`noneconomic damages award was also a reversal of the punitive damages award.
`See id. at 701 (“Because the award of compensatory damages must be vacated, we
`also vacate the award of punitive damages.” (quoting Webb, 93 So. 3d at 339-40)).
`Although the liability findings would not have been disturbed, the new jury would
`have been entitled to hear all the evidence upon which an award of punitive
`damages could be based.
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`FACTUAL BACKGROUND
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`Petitioner Gwendolyn Odom brought this Engle4 progeny action against
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`Respondent R.J. Reynolds, alleging that her mother, Juanita Thurston, died from
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`lung cancer caused by her addiction to cigarettes manufactured by R.J. Reynolds.
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`Odom, 210 So. 3d at 698. Thurston was fifty-eight years old when she died and
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`had never married. Odom, who was forty-two years old when Thurston died,
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`sought noneconomic damages as Thurston’s surviving daughter under Florida’s
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`wrongful death statute.5
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`The uncontroverted evidence presented at trial established “a very close and
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`unique relationship” between Odom and Thurston that endured until Thurston’s
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`untimely death. Odom, 210 So. 3d at 701. Thurston was just sixteen years old
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`when Odom was born; Odom’s biological father was not in the picture. Odom and
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`Thurston were so close that they were described as “more like sisters.”
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`Throughout Odom’s life, Thurston was a constant support to her. After
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`leaving home and moving to South Carolina for college, Odom returned home
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`several months later and moved back in with Thurston. Even after marrying her
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`first husband, Odom continued to live with Thurston for a time. And when
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`4. Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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`5. § 768.21(3), Fla. Stat. (2014).
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`Odom’s first marriage began to deteriorate, while she was pregnant with her first
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`son, Odom moved back in with Thurston. Odom explained what Thurston’s
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`support during this time meant to her:
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`My mother was always there for me. Without my mother, I think I
`would have been lost at that point. I was going through a troubled
`marriage, I was pregnant, and she was the one who I could count on.
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`Even after Odom got remarried and Odom and Thurston no longer lived together,
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`they continued to spend a lot of time together.
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`In addition to providing unconditional support to Odom, Thurston was very
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`involved with Odom’s children. Thurston was present at the birth of Odom’s
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`firstborn son, Ahmad. Thurston was always there for Ahmad’s football and
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`baseball games, even traveling to different cities to watch him play. She was his
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`biggest fan. Odom described Thurston’s relationship with Ahmad as “extremely
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`close.” Thurston considered Ahmad to be her son.
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`Just as Thurston was there to support Odom and Odom’s children, Odom
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`was there to support Thurston. Odom was there for Thurston each time Thurston
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`attempted to quit smoking. Odom was also there when Thurston was diagnosed
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`with lung cancer, and supported Thurston through every step of her treatment.
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`Odom was also there when Thurston’s cancer returned. Although Odom felt
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`as if she had been “punched in [the] stomach” and “hit over the head with a
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`hammer all at one time,” she remained strong for Thurston. Odom explained the
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`pain she experienced as she witnessed Thurston’s body transform from
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`chemotherapy:
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`And [Thurston] didn’t want to do anything. So it was really—it
`was really hard. I would go sit with my mother. She liked to lay
`down a lot. I would sit down with her, hold her hand. I would kiss
`her face. And I tried to be strong for her. I would go in the bathroom,
`close the door, and just cry.
`And I would cry in the bathroom, I would wash my face, try to
`get my composure, I would go back in there and, you know, try to be
`strong for her. I didn’t want her to see how upset I was. But to see
`my mother like that knowing, you know, trying to remember her how
`she was before it happened. She was 58, but she looked like she was
`like 30 years older than what she was.
`It was—it was very—very painful for me. Very painful. And
`it’s still painful today to think about it, what she went through, you
`know. She suffered a lot. A lot.
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`As she had always been, Odom was there when Thurston was admitted to
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`the hospital for the last time. As part of her typical routine, Odom went to
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`Thurston’s house and knocked on the door. After Thurston did not answer, Odom
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`called several times. Finally, Thurston made it to the door. It became clear to
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`Odom that Thurston was having a stroke. Odom called 911 and Thurston was
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`taken to the hospital. At the hospital, the doctor informed Odom that Thurston was
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`on life support. Thurston never woke back up.
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`Odom described how she felt while Thurston spent her last days in the
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`hospital:
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`It was very—it was very, very difficult for me. It was very difficult.
`Because at that point, I knew my mother was dying, she was pretty
`much dead at that point. So I just knew that this is the person that I
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`had always depended on my entire life, and I knew she was dying, she
`was gone, she was leaving—she was leaving me. And it was very,
`very sad.
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`My mother was the one person that I could always depend on.
`And knowing that I wasn’t going to have her in my life anymore, it
`was going to be very, very difficult for me.
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`Odom further explained how she felt after her mother passed away:
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`I think at one point, I was depressed. I don’t know that—the
`definition of depression, but knowing she wasn’t there, I didn’t want
`to do anything. I—it was just a bad time for me because I knew that
`my mother was no longer with me, and I could not call her, I couldn’t
`see her, we couldn’t talk on the phone anymore, it was just—it was
`very difficult.
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`Odom described an instance when she picked up the phone to call Thurston only to
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`remember that Thurston was not there.
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`During closing arguments, Odom requested that the jury award Odom $5
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`million in noneconomic damages. R.J. Reynolds, on the other hand, did not
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`suggest a number to the jury. Instead, R.J. Reynolds told the jury: “[W]e simply
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`leave it to your good judgment and common sense as to whether Ms. Odom should
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`be made a very wealthy person at this stage of her life . . . . We leave that question
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`to you.” On the issue of comparative negligence, R.J. Reynolds argued that the
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`jury should find Thurston 100% at fault for her death, while Odom argued that the
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`jury should allocate “no more than 25%” fault to Thurston. The jury awarded $6
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`million to Odom, which was later reduced to $4.5 million in accordance with the
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`jury’s finding that Thurston was 25% at fault. See Odom, 210 So. 3d at 698.
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`R.J. Reynolds moved for a new trial or remittitur, arguing that the jury’s
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`verdict was grossly excessive and “could only have been the result of passion and
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`prejudice.” R.J. Reynolds requested that the trial court vacate the judgment and
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`order a new trial, “or at a minimum substantially reduce the [noneconomic]
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`damages award to the $400,000 to $500,000 range.”
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`After a hearing, the trial court denied R.J. Reynolds’ motion. In doing so,
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`the trial court first considered this Court’s relevant precedent and the factors set
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`forth in the remittitur statute. The trial court then observed that R.J. Reynolds’
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`argument in favor of a remittitur was based largely upon R.J. Reynolds Tobacco
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`Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012), and Philip Morris USA Inc. v.
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`Putney, 199 So. 3d 465 (Fla. 4th DCA 2016), “which overturned jury verdicts for
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`surviving adult children in the amounts of $8 million and $5 million,
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`respectively.”6 However, the trial court explicitly found that those decisions were
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`distinguishable, explaining:
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`The facts in this case were simply different [from Webb and
`Putney]. [Odom] and [Thurston] were only sixteen years apart and
`enjoyed a relationship that was described as that of close sisters, as
`much as a mother-daughter relationship. [Odom] lived with
`[Thurston], for many of the years of her adult life. Their family was
`close-knit and they spent considerable time together . . . . [Odom] and
`[Thurston] were either together every day, or spoke every day . . . .
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`6. The jury in Putney awarded $5 million in noneconomic damages to each
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`of the decedent’s three surviving adult children, for a total of $15 million. 199 So.
`3d at 470.
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`Moreover, even when [Odom] no longer lived by [Thurston] . . . , this
`remained the case and [Thurston] was an integral part of [Odom’s]
`family (with her own children).
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`These matters were not disputed; nor was the evidence of how
`[Thurston’s] cancer and death affected [Odom]. [Odom] took her
`mother to nearly every treatment and medical appointment. She was
`deeply affected by her mother’s illness as she watched her mother
`deteriorate and experience the ravages of systemic disease and
`treatment. [Odom] was by her mother’s side during this time and
`remains affected to this day by her mother’s suffering and death.
`Following her mother’s death, [Odom] became depressed. That was a
`very difficult time in her life because she knew her mother was no
`longer there and that there were times when she would pick up the
`phone to call her mother, only to realize that she was gone. Even
`now, years after her mother’s death [Odom] still misses her mother,
`and verbalizes her loss with her own son. Moreover, . . . there was
`evidence in this case that [Odom] continued to lean on her mother for
`support prior to her death. She had never had any relationship with
`her father, and her mother was all she had for support in her life.
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`Thus, the trial court concluded:
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`The Court has presided over many wrongful death cases. The Court’s
`conscience is not shocked by the jury’s [noneconomic] damage
`verdict, and [R.J. Reynolds] has identified nothing in the record to
`suggest that the verdict was the product of passion and prejudice.
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`Accordingly, the trial court denied the motion for remittitur and entered final
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`judgment for Odom. See Odom, 210 So. 3d at 698-99.
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`R.J. Reynolds appealed, and the Fourth District reversed, reasoning that
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`“[w]hen it comes to wrongful death awards, including those in the Engle context,
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`courts have drawn a distinction between compensatory damages awarded to
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`surviving spouses and to adult children.” Id. at 699. The Fourth District explained
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`that Putney and Webb “establish that no matter how strong the emotional bond
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`between an adult child and a decedent parent may be, an adult child who lives
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`independent of the parent during the parent’s smoking related illness and death is
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`not entitled to multi-million dollar compensatory damages award.” Id. at 701. The
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`Fourth District further explained that “[c]ases from outside the tobacco arena
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`support this conclusion.” Id.7
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`Thus, although the evidence established that Odom and her mother “had a
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`very close and unique relationship” and Odom “took her mother to many of her
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`appointments and was devastated by her decline and subsequent death,” the Fourth
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`District concluded that “the relationship between an adult child living independent
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`of their parent is simply not the type of relationship” that could justify Odom’s
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`award. Id. Accordingly, the Fourth District held that the trial court abused its
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`discretion in denying R.J. Reynolds’ motion for remittitur and remanded the case
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`for the trial court to grant the motion for remittitur or order a new trial on damages.
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`Id. at 703.
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`7. In MBL Life Assurance Corp. v. Suarez, 768 So. 2d 1129 (Fla. 3d DCA
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`2000), the Third District Court of Appeal reversed $1 million awards to each of the
`decedent’s four children for the wrongful death of the decedent after a boat
`accident, concluding that the awards “could only have been ‘a product of passions
`and emotions,’ rather than a result of the evidence presented.” Id. at 1136 (quoting
`Harbor Ins. Co. v. Miller, 487 So. 2d 46, 48 (Fla. 3d DCA 1986)). In National
`Railroad Passenger Corp. v. Ahmed, 653 So. 2d 1055 (Fla. 4th DCA 1995), the
`Fourth District affirmed awards of $400,000 to each of the decedent’s seven
`children following a train accident, explaining that there was no indication that the
`jury was influenced by passion. Id. at 1059-60.
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`Odom petitioned to this Court and we granted review.
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`ANALYSIS
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`The conflict issue in this case arises from the Fourth District’s
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`misapplication of the abuse of discretion standard to the trial court’s denial of a
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`motion for remittitur and creation of a bright-line cap on the amount of
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`noneconomic damages a financially independent adult surviving child may be
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`awarded for the wrongful death of his or her parent. It is well-established that a
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`trial court’s ruling on a motion for remittitur is reviewed for an abuse of discretion.
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`See Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla. 1976);
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`see also Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1263 (Fla. 2006). This Court
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`has explained the abuse of discretion standards as follows:
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`In reviewing a true discretionary act, the appellate court must
`fully recognize the superior vantage point of the trial judge and should
`apply the “reasonableness” test to determine whether the trial judge
`abused his discretion. If reasonable men could differ as to the
`propriety of the action taken by the trial court, then the action is not
`unreasonable and there can be no finding of an abuse of discretion.
`The discretionary ruling of the trial judge should be disturbed only
`when his decision fails to satisfy this test of reasonableness.
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`Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
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`Our analysis begins by setting forth the relevant legal background. With the
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`legal background set, we address the conflict issue presented in this case. Finally,
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`we turn to properly review the trial court’s denial of R.J. Reynolds’ motion for
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`remittitur for an abuse of discretion.
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`I. Relevant Legal Background
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`Under Florida’s wrongful death statute, “[m]inor children of the decedent,
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`and all children of the decedent if there is no surviving spouse, may . . . recover for
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`lost parental companionship, instruction, and guidance and for mental pain and
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`suffering from the date of injury.” § 768.21(3), Fla. Stat. (2014). Thus, an adult
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`child twenty-five years or older has a right to claim noneconomic damages under
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`the wrongful death statute only if there is no surviving spouse. See id. § 768.18(2)
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`(defining minor child as a child “under 25 years of age”).
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`The Legislature’s stated purpose with the wrongful death statute is “to shift
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`the losses resulting when wrongful death occurs from the survivors of the decedent
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`to the wrongdoer.” Id. § 768.17. Prior to 1990, the wrongful death statute “only
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`permitted minor children to recover pain and suffering damages due to the death of
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`a parent.” Mizrahi v. N. Miami Med. Ctr., Ltd., 712 So. 2d 826, 828 (Fla. 3d DCA
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`1998), approved, 761 So. 2d 1040 (Fla. 2000).8 However, in 1990, the Legislature
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`made a policy decision that when there is no surviving spouse, surviving adult
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`8. The prior version of the statute stated that only “[m]inor children of the
`decedent may . . . recover for lost parental companionship, instruction, and
`guidance and for mental pain and suffering from the date of injury.” § 768.21(3),
`Fla. Stat. (1987). Additionally, prior to 1979, “minor children” included only
`“dependent unmarried children under 21 years of age, notwithstanding the age of
`majority.” § 768.18(2), Fla. Stat. (1979). The definition of “minor children” was
`changed in 1981 to include all children under the age of twenty-five,
`notwithstanding the age of majority. § 768.18(2), Fla. Stat. (1981).
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`children are entitled to recover noneconomic damages for the wrongful death of
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`their parent. There is no statutory requirement that the adult child or children be
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`financially dependent on the decedent at the time of the decedent’s death in order
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`to make a claim for noneconomic damages under the statute. See § 768.21(3), Fla.
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`Stat. (2014).
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`In tandem with the right to recover noneconomic damages, in every case for
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`money damages the trial court has a separate obligation to determine if the
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`damages award is “excessive or inadequate in light of the facts and circumstances
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`which were presented to the trier of fact.” Id. § 768.74(1). The remittitur statute
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`explains that although “the reasonable actions of a jury are a fundamental precept
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`of American jurisprudence and . . . such actions should be disturbed or modified
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`with caution and discretion,” requiring courts to review the damages awarded by
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`juries “provides an additional element of soundness and logic to our judicial
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`system and is in the best interests of the citizens of this state.” Id. § 768.74(6).
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`Thus, when a court “finds that the amount awarded is excessive . . . it shall order a
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`remittitur.” Id. § 768.74(2).
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`The remittitur statute provides a list of factors for courts to consider when
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`determining whether an award is excessive or inadequate:
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`(a) Whether the amount awarded is indicative of prejudice,
`passion, or corruption on the part of the trier of fact;
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`(b) Whether it appears that the trier of fact ignored the evidence
`in reaching a verdict or misconceived the merits of the case relating to
`the amounts of damages recoverable;
`(c) Whether the trier of fact took improper elements of damages
`into account or arrived at the amount of damages by speculation and
`conjecture;
`(d) Whether the amount awarded bears a reasonable relation to
`the amount of damages proved and the injury suffered; and
`(e) Whether the amount awarded is supported by the evidence
`and is such that it could be adduced in a logical manner by reasonable
`persons.
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`Id. § 768.74(5).
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`
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`In addition to the factors set forth in the remittitur statute, this Court has
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`observed that reviewing “amounts awarded in similar cases has at least a limited
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`value” in determining whether an award is excessive. Loftin v. Wilson, 67 So. 2d
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`185, 189 (Fla. 1953). This observation came with a caution, however, that
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`comparisons are “sometimes fraught with danger because, of course, each case is
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`different and must of necessity be measured in the light of the circumstances
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`peculiar to it.” Id.; see also Laskey v. Smith, 239 So. 2d 13, 14 (Fla. 1970) (“In its
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`movement toward constancy of principle, the law must permit a reasonable latitude
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`for inconstancy of result in the performance of juries.”).
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`Notwithstanding the factors set forth in the remittitur statute and any
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`guidance that can be gleaned from reviewing similar cases, this Court has
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`recognized that measuring noneconomic damages is inherently difficult as “there is
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`no objective standard by which to measure” them. Angrand v. Key, 657 So. 2d
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`1146, 1149 (Fla. 1995). “Technical or mathematical calculations are impossible to
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`make.” Id. Because of the inherent difficulty in measuring these kinds of
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`damages, this Court has determined that “[t]he jury, guided by its judgment and
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`everyday life experiences, is in the best position to make a fair assessment of these
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`damages.” Id. As we have explained:
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`Jurors know the nature of pain, embarrassment and inconvenience,
`and they also know the nature of money. Their problem of equating
`the two to afford reasonable and just compensation calls for a high
`order of human judgment, and the law has provided no better
`yardstick for their guidance than their enlightened conscience. Their
`problem is not one of mathematical calculation but involves an
`exercise of their sound judgment of what is fair and right.
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`Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla. 1955).
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`In addition, the standard jury instructions, which were given in this case,
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`explain to the jury that “there is no exact standard for fixing the compensation” of
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`a noneconomic damages award. Fla. Std. Jury Instr. (Civ.) 502.2. The jury is
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`further cautioned not to allow sympathy or prejudice influence their decision. Fla.
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`Std. Jury Instr. (Civ.) 700.
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`Because assessing the amount of damages is within the province of the jury,
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`this Court has made clear that when reviewing a motion for remittitur, a court
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`“should never declare a verdict excessive merely because it is above the amount
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`which the court itself considers the jury should have allowed.” Bould v. Touchette,
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`349 So. 2d 1181, 1184 (Fla. 1977). And when a trial judge refuses to grant a
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`remittitur, “[t]he correctness of the jury’s verdict is strengthened.” Lassitter, 349
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`So. 2d at 627. As this Court explained in Lassitter:
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`Two factors unite to favor a very restricted review of an order
`denying a motion for new trial on ground of excessive verdict. The
`first of these is the deference due the trial judge, who has had the
`opportunity to observe the witnesses and to consider the evidence in
`the context of a living trial rather than upon a cold record. The
`second factor is the deference properly given to the jury’s
`determination of such matters of fact as the weight of the evidence
`and the quantum of damages.
`The appellate court should not disturb a verdict as excessive,
`where the trial court refused to disturb the amount, unless the verdict
`is so inordinately large as obviously to exceed the maximum limit of a
`reasonable range within which the jury may properly operate.
`
`
`Id. (emphasis added). Stated another way, an appellate court should only hold an
`
`award excessive if it “shock[s] the judicial conscience.” Seaboard Coast Line R.R.
`
`Co. v. McKelvey, 270 So. 2d 705, 706 (Fla. 1972). In order to shock the judicial
`
`conscience, “the verdict must be so excessive or so inadequate so as at least to
`
`imply an inference that the verdict evinces or carries an implication of passion or
`
`prejudice, corruption, partiality, improper influences, or the like.” Lassitter, 349
`
`So. 2d at 627.
`
`We have not yet addressed whether a noneconomic damages award in an
`
`Engle progeny case was so excessive that it shocked the judicial conscience and
`
`thus necessitated a remittitur. However, we recently held that a punitive damages
`
`award of $30 million in an Engle progeny case did not shock the conscience
`
`
`
`- 16 -
`
`

`

`
`
`merely because it was more than what the plaintiff requested. See, e.g., Schoeff v.
`
`R.J. Reynolds Tobacco Co., 232 So. 3d 294, 308 (Fla. 2017).
`
`In Schoeff, the plaintiff “asked the jury not to exceed $25 million in punitive
`
`damages.” Id. Because the jury awarded $30 million, the Fourth District
`
`concluded that the award could not have been “adduced in a logical manner by
`
`reasonable persons.” Id. (quoting § 768.74(5)(e), Fla. Stat. (2012)). This Court
`
`rejected that conclusion, explaining that “this single factor is insufficient to render
`
`an award excessive. The fact that the jury exceeded requested damages does not
`
`render the award itself unreasonable or excessive.” Id.
`
`Having set forth the relevant legal background, we now turn to explain how
`
`the Fourth District misapplied the well-established abuse of discretion standard
`
`when reviewing the trial court’s denial of R.J. Reynolds’ motion for remittitur.
`
`II. Misapplication of the Abuse of Discretion Standard
`
`
`
`First, it is clear that the Fourth District misapplied the abuse of discretion
`
`standard, as it paid no deference to the trial court, which “had the opportunity to
`
`observe the witnesses and to consider the evidence in the context of a living trial
`
`rather than upon a cold record.” Lassitter, 349 So. 2d at 627. In fact, the Fourth
`
`District’s decision fails to discuss or otherwise mention the trial court’s well-
`
`reasoned order denying R.J. Reynolds’ motion. Determining that the trial court
`
`abused its discretion without first determining that the trial court’s decision was
`
`
`
`- 17 -
`
`

`

`
`
`unreasonable is not consistent with the abuse of discretion standard. See
`
`Canakaris, 382 So. 2d at 1203 (explaining that the abuse of discretion standard is a
`
`test of reasonableness).
`
`Second, in addition to the lack of deference to the decision of the trial court,
`
`the Fourth District failed to consider any of the factors set forth in the remittitur
`
`statute. See § 768.74(5)(a)-(e), Fla. Stat. (2014). While the Fourth District’s
`
`opinion recites the factors, it does not identify the presence of any of the factors in
`
`this case, including that the jury’s award was indicative of passion. Id. As this
`
`Court has explained, an award is only excessive if it “evinces or carries an
`
`implication of passion or prejudice, corruption, partiality, improper influences, or
`
`the like.” Lassitter, 349 So. 2d at 627. Not only did the Fourth District not
`
`identify the presence of passion in the jury’s verdict, but it failed to acknowledge
`
`that the trial court, after careful consideration of the factors in the remittitur statute,
`
`explicitly concluded that the jury’s award was not indicative of “passion, prejudice,
`
`corruption or other improper motive.” Bould, 349 So. 2d at 1184.
`
`Third, and significantly, the Fourth District misapplied the abuse of
`
`discretion standard when it concluded that the jury’s verdict in this case was
`
`excessive based on four district court of appeal decisions, two of which the trial
`
`court expressly found to be distinguishable. See Odom, 210 So. 3d at 701.
`
`Although we have stated that reviewing awards in similar cases can be helpful in
`
`
`
`- 18 -
`
`

`

`
`
`determining whether a particular award is excessive, we also stated, in the very
`
`same case, that “each case is different and must of necessity be measured in the
`
`light of the circumstances peculiar to it.” Loftin, 67 So. 2d at 189. Here, consistent
`
`with our precedent, the trial court appropriately considered the cases cited by R.J.
`
`Reynolds, Webb and Putney, when reviewing whether the jury’s verdict was
`
`excessive. After careful consideration, the trial court determined that the facts of
`
`this case “were simply different.”
`
`In reversing the trial court, the Fourth District did not conclude that this
`
`determination by the trial court was unreasonable. Rather, instead of assessing the
`
`reasonableness of the trial court’s determination, as required by the abuse of
`
`discretion standard, the Fourth District concluded that two other district court of
`
`appeal cases “establish that no matter” what the evidence showed, the jury’s
`
`multimillion dollar verdict in this case was excessive because it was in favor of a
`
`financially independent adult child. Odom, 210 So. 3d at 701. The Fourth
`
`District’s total reliance on district court of appeal cases to the exclusion of this
`
`Court’s precedent, as well as the particular circumstances of the case before it, is
`
`simply not the kind of deferential review that the abuse of discretion standard
`
`requires.
`
`For the reasons stated, we conclude that the Fourth District erred by
`
`misapplying the abuse of discretion standard when reviewing the trial court’s
`
`
`
`- 19 -
`
`

`

`
`
`denial of R.J. Reynolds’ motion for remittitur. We now turn to address the Fourth
`
`District’s cap on damages.
`
`III. Cap on Damages
`
`In addition to misapplying the abuse of discretion standard, the Fourth
`
`District created a cap on the amount of noneconomic damages a financially
`
`independent adult child may be awarded for the wrongful death of his or her parent
`
`when it concluded that, regardless of the evidence, “the relationship between an
`
`adult child living independent of their parent is simply not the type of relationship”
`
`that can justify a multimillion noneconomic damages award. Id. Because th

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