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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OLIVER PICKETT, JR., as Personal
Representative of the ESTATE OF
OLIVER PICKETT, SR.,
R.J. REYNOLDS TOBACCO
Case No. 3:09-cv-10116-J-37JBT
This cause is before the Court on the following:
R.J. Reynolds Tobacco Company’s Motion for Attorneys’ Fees (Doc. 179),
filed April 11, 2012;
Plaintiff’s Opposition to Defendant’s Motion for Attorneys’ Fees (Doc. 181),
filed April 25, 2012;
Defendant’s Reply in Support of Its Motion for Attorney’s Fees (Doc. 187),
filed May 9, 2012;
Report and Recommendation (Doc. 194), filed February 13, 2013;
the Magistrate Judge’s Report and
Recommendation Denying Defendant’s Motion
for Attorneys’ Fees
(Doc. 195), filed February 27, 2013; and
Plaintiff’s Response to Defendant’s Objections to the Magistrate Judge’s
Report and Recommendations Denying Defendant’s Motion for Attorneys’
Fees (Doc. 196), filed March 18, 2013.
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Upon consideration, the Court hereby finds that Defendant’s motion for attorney’s fees
is due to be denied, for the reasons set forth below.
In this Engle-progeny wrongful death tobacco case, Defendant initially served
Plaintiff with a settlement proposal for $10,000, which Plaintiff rejected. (Doc. 179, p. 2;
Doc. 181, p. 1.) The case went to trial, and the jury ultimately found that the decedent
was addicted to cigarettes, that his addiction was a legal cause of his death, and that
Defendant’s placement of cigarettes on the market was also a legal cause of his death.
(Doc. 152, pp. 1–2.) The jury found that the decedent and Defendant were each 50%
liable. (Doc. 152, p. 3.) However, the jury awarded zero damages to the decedent’s
survivors for pain and suffering and loss of companionship.1 (Id. at 4.) The jury also
found that punitive damages were not warranted. (Id.)
The Court entered judgment in favor of Defendant. (Doc. 177.) Plaintiff moved to
amend the judgment, arguing that Plaintiff was actually the prevailing party on his
claims even though the jury awarded zero damages. (Doc. 182.) The Court denied that
motion, finding that Defendant was the prevailing party in both the legal and the
practical sense. (Doc. 189, p. 2.)
Defendant then moved for attorney’s fees, seeking a total of $41,860 for the
59.8 hours that counsel spent in court at the trial. (Id. at 3.) Plaintiff opposed, arguing
that Defendant’s settlement offer was so low as not to be made in good faith, meaning
that Defendant was not entitled to fees pursuant to Florida Statutes § 768.79. (Doc. 181,
1 Plaintiff had also brought claims for economic damages in the form of medical
and funeral bills in excess of $30,000; however, Plaintiff dropped those claims on the
day before the trial began and proceeded only with the claims for non-economic
damages in the form of pain and suffering and loss of companionship. (Doc. 181, p. 3.)
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p. 1.) Defendant replied that the settlement proposal was proven reasonable by the
jury’s zero-damages award. (Doc. 187, p. 1.) Defendant also submitted that it believed
that it had no liability based on the facts of this case and that its exposure was minimal
given the many verdicts finding no liability or zero damages in similar cases. (Id. at 4–5.)
Magistrate Judge Joel B. Toomey subsequently entered a Report and
Recommendation (R&R) recommending that this Court deny Defendant’s motion for
attorney’s fees. (Doc. 194, p. 1.) Defendant objected. (Doc. 195.) Plaintiff responded.
(Doc. 196.) A hearing was held in this matter before the undersigned on April 18, 2013.
(Doc. 198.) This matter is now ripe for the Court’s adjudication.
When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of
Educ., 896 F.2d 507, 513 (11th Cir. 1990).
“If an offer satisfies the requirements of [Fla. Stat.] § 768.79(1)–(6), . . . [t]he sole
basis on which a court can disallow an entitlement to an award of fees is if it determines
that [the] offer was not made in good faith.” McMahan v. Toto, 311 F.3d 1077, 1083
(11th Cir. 2002) (alterations in original) (citation and internal quotation marks omitted).
“The burden is upon the offeree to prove that the offeror acted without good faith.”
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Levine v. Harris, 791 So. 2d 1175, 1178 (Fla. 4th DCA 2001).
“[T]he question of whether a proposal was served in good faith turns entirely on
whether the offeror had a reasonable foundation upon which to make his offer and
made it with the intent to settle the claim against the offeree should the offer be
accepted.” Wagner v. Brandeberry, 761 So. 2d 443, 446 (Fla. 2d DCA 2000). However,
“[i]n making this determination, the trial court is not restricted to the testimony of the
offeror attesting to good faith; rather, the court may properly consider objective evidence
of facts and circumstances that suggest whether the offeror made the offer with
subjective good faith.” Arrowood Indem. Co. v. Acosta, Inc., 58 So. 3d 286, 289 (Fla. 1st
Thus, the court should take into account the following factors in determining the
offeror’s subjective good faith: the amount of the offer, the offeror’s potential exposure,
the complexity and closeness of the case, and the offeror’s justification for the offer. Id.
at 290. The court should not take into account the reasonableness of the offeree’s
rejection of the offer. TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 613 (Fla. 1995)
(noting that the fact that an offeree had a good reason to reject a low offer is not
properly considered in the determination of entitlement to fees, but should be
considered in determining the amount of fees).
As to the amount of the offer, courts should “view with considerable skepticism
nominal offers which bear no reasonable relationship to damages and which are not
founded upon a reasonable and realistic assessment of liability.” Eagleman v.
Eagleman, 673 So. 2d 946, 948 (Fla. 4th DCA 1996). However, “nominal offers of
judgment are not alone determinative of bad faith.” Fox v. McCaw Cellular Commc’ns of
Fla., Inc., 745 So. 2d 330, 333 (Fla. 4th DCA 1998) (clarifying Eagleman). “Therefore,
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even viewing such offers with ‘considerable skepticism,’ proof of bad faith requires a
showing beyond the mere amount of the offer. . . . [It] involves an inquiry into the
circumstances shown by the entire record of the case.” Id. (quoting Eagleman, 673 So.
2d at 948).
Magistrate Judge Toomey’s R&R recommended that this Court deny Defendant’s
motion because he found that Plaintiff met his burden of demonstrating that Defendant’s
settlement proposal was not made in good faith, and he also reasoned that Defendant’s
justifications for its proposal were not supported by the circumstances at the time it was
made. (Doc. 194.) Defendant objected to the R&R, arguing that: (1) it failed to give due
weight to the take-nothing verdict; (2) it failed to properly evaluate the strength of
Plaintiff’s claim; (3) it relied on factually dissimilar Engle-progeny cases; and (4) it
improperly shifted the burden of proof to Defendant. (Doc. 195.) The Court agrees with
Magistrate Judge Toomey that Defendant’s motion for attorney’s fees is due to be
It is undisputed that it is Plaintiff’s burden to show lack of subjective good faith;
however, in addition to the offeror’s subjective justification for the offer, the Court also
considers objective indicators, such as the amount of the offer, the potential exposure,
and the complexity of the case. See Arrowood, 58 So. 3d at 290. That courts should
look to objective indicia of the offeror’s subjective good faith is in keeping with the fact
that the burden rests on the offeree to demonstrate bad faith—for if courts could only
look to the offeror’s self-serving, post hoc rationalizations of subjective good faith
without resort to objective indicators, it would be virtually impossible for an offeree to
meet his burden.
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Magistrate Judge Toomey is uniquely poised to weigh these factors: he has a
deep knowledge of the strengths and weaknesses of this particular case, in addition to
his intimate familiarity with overarching tobacco litigation as a whole, having had
exclusive responsibility for implementing case management orders and resolving
discovery disputes in all of the thousands of tobacco cases filed in this Court. From this
well-informed vantage point, Magistrate Judge Toomey considered Defendant’s
subjective justification and the objective indicators and determined that Plaintiff
sustained his burden of proving Defendant’s bad faith.
As to the take-nothing verdict, if the Court accepted Defendant’s proposition that
a verdict in one’s favor proves a low settlement offer reasonable, the Court would be
forced to read the good-faith requirement completely out of the statute. Hindsight is
20/20, and while the verdict is one factor to consider, it is not dispositive. In light of all
the other factors—the low amount of the offer, the timing of the offer, the predetermined
conduct issues tipping the scales, the high potential for punitive damages, the verdicts
decided around the same time that the offer was made, and the protracted, rancorous
history of this litigation—the Court finds that these objective indicators undercut
Defendant’s self-interested protestation of good
faith. Plaintiff has
demonstrated that Defendant’s $10,000 offer, made on the eve of trial after a great deal
of expensive and drawn-out motion practice, was not made with the subjective good
faith intent to settle this claim.
Having considered the record as a whole and having reviewed de novo the
portions of the R&R to which Defendant specifically objected, the Court agrees with
Magistrate Judge Toomey’s recommendation and finds that Defendant’s motion for
attorney’s fees is due to be denied.
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Accordingly, it is hereby ORDERED AND ADJUDGED:
the Magistrate Judge’s Report and
Recommendation Denying Defendant’s Motion
for Attorneys’ Fees
(Doc. 195) are OVERRULED.
Magistrate Judge Toomey’s Report and Recommendation (Doc. 194) is
ADOPTED and CONFIRMED and made a part of this Order.
R.J. Reynolds Tobacco Company’s Motion for Attorneys’ Fees (Doc. 179)
DONE AND ORDERED in Chambers in Jacksonville, Florida, on June 3, 2013.
Counsel of Record
Honorable Joel B. Toomey