Estate of Gregory V. Faull v. McAfee et al
Filing
139
OPINION AND ORDER directing Clerk to enter judgment in favor of Plaintiff. Signed by Judge Gregory A. Presnell on 3/19/2019. (ED)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ESTATE OF GREGORY V. FAULL,
Plaintiff,
v.
Case No: 6:13-cv-1746-Orl-31LRH
JOHN MCAFEE,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court after a bench trial held on January 10, 2019 regarding
the Plaintiff’s claim for damages. After considering the pleadings, evidence, argument, and
relevant legal authority, and having made determinations as to the credibility of the witnesses, the
Court hereby renders its decision pursuant to Federal Rule of Civil Procedure 52.
I.
Procedural History
The Estate of Gregory Faull (henceforth, the “Estate”) initiated this wrongful death action
against the Defendant, John McAfee (“McAfee”) on November 8, 2013. 1 (Doc. 1). McAfee was
served with a copy of the Amended Complaint (Doc. 12) on December 4, 2014. (Doc. 39 at 3).
On May 28, 2016, he was served with a copy of the Second Amended Complaint (Doc. 57).
(Doc. 78).
1
The personal representative of the Estate is Curt Jacobus, who was appointed via letters
of administration issued by the probate division of the Circuit Court for Brevard County, Florida,
on October 8, 2013. (Doc. 57 at 22).
On January 12, 2017, the Court denied the Estate’s motion for default judgment in regard
to the Second Amended Complaint and denied, as futile, the Estate’s motion for leave to file the
Third Amended Complaint. (Doc. 90). On appeal, however, the United States Court of Appeals
for the Eleventh Circuit reversed the denial of leave to amend and remanded the case, finding that
the allegations of the proposed complaint “plausibly state a wrongful death claim against McAfee
under Florida law for the death of Faull.” (Doc. 100 at 4).
The Third Amended Complaint (Doc. 104), which is the operative pleading, was provided
to McAfee on May 7, 2018. (Doc. 107). As with the previous pleadings, McAfee never
answered the Third Amended Complaint or otherwise made an appearance in the case.
On November 14, 2018, pursuant to the Estate’s motion (Doc. 113), the Court approved
the entry of default judgment as to liability against McAfee in regard to the Third Amended
Complaint. (Doc. 119). Because the amount of damages was not specified in that pleading, the
Court approved the Estate’s request for an evidentiary hearing on that issue. See Adolph Coors
Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985) (holding
that “a judgment of default awarding cash damages could not properly be entered without a
hearing, unless the amount claimed is a liquidated sum or one capable of mathematical
calculation.”) (quotation and citation omitted).
II.
Jurisdiction
The Court possesses subject matter jurisdiction pursuant to 28 U.S.C. § 1332. The parties
are diverse. At the time of his death, Gregory Faull (“Faull”) was domiciled in Florida (Doc. 104
at 1), and therefore pursuant to 28 U.S.C. § 1332(c)(2), the Estate is deemed to be a citizen of
Florida. As of the filing of this action, McAfee – who moves around frequently – was a citizen of
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a state other than Florida. (Doc. 104 at 4). The amount in controversy in this matter exceeds
$75,000.
III.
Findings of Fact
In November 2012, Gregory Faull was living on the beach on Ambergris Caye, a remote
and sparsely populated island in Belize. (Doc. 104 at 21). The 52-year-old Faull, a retired
general contractor and restauranteur, had temporarily relocated to Belize from Florida (Doc. 104 at
1-2) in the wake of a divorce earlier that year.
On the evening of November 10, 2012, Faull attended a party at the home of two
neighbors, Shane and Brittany McCann. (Doc. 104 at 7). There were no roads along that stretch
of Ambergris Caye; anyone wishing to travel through that area had to use the beach or take a boat.
(Tr. at 34). 2 Faull walked to and from the party along the beach. (Doc. 104 at 8).
As he did so, he would have passed in front of the home of John McAfee, the defendant in
this matter. (Doc. 104 at 8). McAfee developed some of the earliest commercial antivirus
software; the company bearing his name was later sold to Intel Corporation for an enormous sum.
McAfee lived about 200 yards down the beach from Faull, between his house and the McCann’s.
(Doc. 104 at 2-3, 33).
***
McAfee had developed a certain notoriety among the residents of Ambergris Caye. For
purposes of security or intimidation or both, he employed a number of armed guards. The guards
patrolled McAfee’s property and the beach in front of it, carrying automatic weapons, shining
2
References to the transcript of the bench trial (Doc. 136) are in the format “Tr.” at “page
number”.
-3-
spotlights on people walking by at night, and looking “violent and dangerous,” according to
Faull’s neighbor and good friend, Jeffrey Spiegel. (Doc. 134-72 at 2). 3 McAfee bragged that a
number of his guards had served time in prison. (Doc. 104 at 5). Neighbors and tourists told
Spiegel that they felt threatened by the guards and by the eight to twelve dogs McAfee kept on his
property. (Doc. 104 at 2-3, 6). Spiegel testified that the dogs, which were untrained and would
“bark incessantly all night,” would sometimes get outside McAfee’s fence and attack people
walking down the beach. (Doc. 104 at 6). Spiegel said he was one of the people who was bitten.
(Doc. 134-72 at 2).
Faull and McAfee were not on good terms. (Doc. 134-72 at 3). According to Spiegel,
McAfee’s dogs got loose and attacked Faull at least once. (Doc. 134-72 at 3). Faull complained
about the dogs directly to McAfee, and to the local authorities, such as the Town Board of the
local municipality, San Pedro, and to the equivalent of the local humane society. (Doc. 134-72 at
6, Tr. at 35-36). When those efforts were unsuccessful, Spiegel testified, Faull took matters into
his own hands; on November 9, 2011, he poisoned two of McAfee’s dogs. (Tr. at 36). When
McAfee discovered what had happened, he became irate, euthanizing the dogs with multiple
gunshots (Doc. 104 at 7) and, in Spiegel’s words, “parading up and down the beach, screaming,”
alarming his neighbors (Tr. at 37).
***
3
In addition to testifying via Skype at the evidentiary hearing, Spiegel provided a written
declaration (Doc. 134-72). The Court also received into evidence declarations from two members
of the Belize Police Department, Mark Humes (Doc. 134-78) and Hilberto Romero (Doc. 134-79).
Pursuant to 28 U.S.C. § 1746, such declarations, when made under penalty of perjury, may be
used as evidentiary support in the same manner as a sworn affidavit. All three of these
declarations were made under penalty of perjury in substantially the form set forth at 28 U.S.C. §
1746(1).
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In its Third Amended Complaint, the Estate alleged that after discovering the poisoning,
McAfee had an associate, Cassian Chavarria (“Chavarria”), deposit $5,000 in the account of a
local “violent male,” Eddie McKoy (“McKoy”) to pay for the murder of Gregory Faull. (Doc.
104 at 16). The Estate further alleged that in the early morning hours of November 11, a female
associate of McAfee’s appeared at Faull’s home to provide a distraction, allowing McKoy to
subdue, torture, and murder Faull. (Doc. 104 at 16). Shortly thereafter, Chavarria received a
phone call from McKoy, asking to be picked up from a spot about 600 feet from Faull’s house.
(Doc. 104 at 17). Because McAfee failed to respond to the Third Amended Complaint, those
allegations, along with the other well-pleaded allegations of fact from that pleading, are accepted
as true. See, e.g., Lary v. Trinity Physician Financial & Ins. Svcs., 780 F.3d 1101, 1106 (11th
Cir. 2015).
***
Faull returned from the McCann’s party on the evening of November 10, the day after the
poisoning. (Doc. 104 at 8). The next morning, Spiegel received a phone call, notifying him that
Faull had been found dead. (Tr. at 38). He immediately took his boat to Faull’s house, where he
found Faull’s body in a pool of blood in the living room. (Doc. 134-72 at 3). The only other
person at the house was Faull’s housekeeper, who had discovered the body. (Doc. 134-72 at 3).
Faull lay on his back, in front of the television, which was still on. (Tr. at 41, 39). He
had been shot once, in the back of the head. (Tr. at 41). There were no signs of a struggle, such
as knocked-over furniture. (Tr. at 41). Faull appeared, in Spiegel’s words, to “simply [have
been] executed.” (Tr. at 41).
The police arrived twenty or thirty minutes after Spiegel. (Tr. at 40). During that time,
Spiegel testified, “[p]retty much the entire neighborhood” congregated on Faull’s veranda or front
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yard after hearing the news about Faull. (Tr. at 40). There was, however, one notable exception:
McAfee. (Tr. at 40). Spiegel confirmed that McAfee was nearby that morning. At one point
after the police arrived, Spiegel had to return to his house. Rather than taking his boat, he ran
back up the beach, which took him past McAfee’s property. (Tr. at 40). He saw McAfee sitting
in a lounge chair by his pool, “watching the goings-on unfold” and looking “relaxed.” (Tr. at 40).
Spiegel said he was surprised and a little bit concerned that, unlike other members of the
community, who were horrified or at least disturbed by Faull’s death, McAfee displayed no shock
or even curiosity. (Tr. at 40-41).
Hilberto Romero, Superintendent of Police of the Belize Police Department, subsequently
inspected Faull’s body and confirmed the gunshot wound that Spiegel had noticed. (Doc. 134-79
at 1). In addition, Romero observed part of a human fingernail in Faull’s scalp, and “various
markings on his torso and genitals that are consistent with burns caused by a Taser.” 4 (Doc. 13479 at 1). Romero concluded that one or more assailants had subdued Faull with a Taser and then
shot him. (Doc. 134-79 at 1). 5
Spiegel testified that he – along with, he believed, the rest of his neighborhood –
immediately concluded that McAfee had been responsible for Faull’s death. (Tr. at 43). McAfee
was declared a person of interest by the police the next day. (Tr. at 43). Beginning on
4
Witnesses had previously reported seeing McAfee use a Taser to discipline his dogs, on
several occasions. (Doc. 104 at 11). In addition, McAfee supplied his guards with Tasers.
(Doc. 104 at 5). Spiegel said McAfee himself sometimes carried a Taser (or a cattle prod, or a
handgun) when walking the beach or visiting a bar on Ambergris Caye. (Doc. 134-72 at 2).
5
In addition to the declaration provided by Romero, the Court received into evidence
declarations from Mark Humes of the Belize Police Department (Doc. 134-78) and from Faull’s
friend and neighbor, Jeffrey Spiegel (Doc. 134-72). Pursuant to 28 U.S.C. § 1746, such
declarations, when made under penalty of perjury, may be used as evidentiary support in the same
manner as a sworn affidavit. All three declarations were made under penalty of perjury in
substantially the form set forth at 28 U.S.C. § 1746(1).
-6-
November 11, police made multiple attempts to find and question McAfee, but McAfee evaded
them. (Doc. 104 at 11-12). In December 2012, he crossed the border illegally into Guatemala.
(Doc. 104 at 14). From there, he returned to the United States. (Doc. 104 at 15). He has never
submitted to questioning by the Belize police regarding Faull’s murder.
***
The record in this case establishes that Faull was, in many ways, a remarkable man who
enjoyed a vigorous lifestyle. Raised in Florida, he enjoyed boating and fishing throughout his
life. He obtained a captain’s license from the Coast Guard and operated his own charter boat.
(Tr. at 123). After high school, he became a carpenter, then got his contracting license and built a
very successful business, Gregory V. Faull General Contractors, Inc., doing work at, among other
places, Walt Disney World and Universal Studios, and on Red Lobster restaurants. (Tr. at 64, 86,
123-24). He raced motorcycles and enjoyed driving fast cars. (Tr. at 69). Later in life, he got
into the restaurant business after spotting a vacant building on the campus of the University of
Central Florida that he thought would be a good spot for a sports bar and restaurant. (Tr. at 124).
His establishment, Tailgaters, opened in 2008 and was still operating at the time of his death; his
former wife, Vickie, ran it while he was in Belize. (Tr. at 125-27).
The testimony at trial showed that he was in good health (Tr. at 57) and that he had a
number of close relatives who lived past the age of 80, including his 82-year-old mother, Eileen
Kenney, who testified at the bench trial. (Tr. at 46-67). Also still alive at that time were his 86year-old father, an 87-year-old maternal aunt, and a paternal aunt in her mid-90s. (Tr. at 47-49).
According to data compiled by the Centers for Disease Control, the average 52-year-old
white male has a life expectancy of 28.2 additional years. (Doc. 134-47 at 1). The available
evidence suggests that Faull would have been expected to live at least that much longer.
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Shortly before his death, Faull told Roger Helms – another good friend and Florida
resident – that he was hoping to return to Florida because he wanted to get back together with his
ex-wife and to foster a stronger relationship with his daughter, Amber Eileen. (Tr. at 81). He
planned to sell the house in Belize, which he estimated was worth $1 million to $1.5 million, and
use the proceeds to re-establish his contracting business. (Tr. at 81-82).
***
Amber Eileen was 26 years old and in her first semester at college in Georgia when her
father was killed. She said they had a “special bond” and were like “buddies”. (Tr. at 165).
She testified that, even when she was very young, she and her father both loved the outdoors and
spent a lot of time doing things together outside, such as fishing and camping. (Tr. at 143-44).
The music he loved when she was a child became her favorite music. (Tr. at 165). He collected
vinyl albums, and on one of his last visits to her in college, he gave his collection to her because
he knew she would appreciate it. (Tr. at 165). She continues to do things to honor his memory;
at her college graduation party, for example, she set aside an empty chair along with a candle and
a picture of the two of them together, because she “knew he was there in spirit.” (Tr. at 166-67).
Others recognized the bond that they shared. Roger Helms testified that, just about every time he
and Faull spoke, Faull would brag about his daughter, talking about “how smart she was and how
much smarter she was than him.” (Tr. at 71).
Amber Eileen testified that she has had serious problems dealing with her father’s murder.
The grief and anxiety she suffered led to insomnia and depression. (Tr. at 149). She would
spontaneously break down in tears. (Tr. at 150). She testified that she felt “overwhelmed” by
the violent nature of her father’s death and by the constant reminders of it due to stories in the
media, a result of McAfee’s notoriety. (Tr. at 150). She began acting erratically, binge drinking
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and having emotional breakdowns and panic attacks. (Tr. at 148, 162). About a year and a half
after her father’s death, her problems progressed to the point that her boyfriend confronted her
about them. (Tr. at 148). Eventually, he convinced her to go to the college’s health center for
counseling. (Tr. at 149). Psychiatric treatment and medication have helped somewhat, but she
remains anxious and fearful. (Tr. at 152-55, 171). She continues to have nightmares about her
father’s last moments. (Tr. at 159). She testified that she now feels a need to control everything
around her because she “didn’t have any control of … that situation.” (Tr. at 171). And the
mental health challenges she continues to endure have led to physical problems, such as weight
gain and intimacy issues. (Tr. at 156-57).
***
The Estate presented evidence that $8,482.43 in funeral-related expenses had been
incurred, primarily by Faull’s mother and stepfather. (Doc. 134-53). The expenses included
payments to newspapers for obituaries, the cost of a memorial service, and travel expenses
required to make the arrangements and for family members to attend the service. (Doc. 134-53).
IV.
Conclusions of Law
Florida’s Wrongful Death Act, Fla. Stat. §§ 768.16-768.26 (the “FWDA”), provides a right
of action as follows:
When the death of a person is caused by the wrongful act … of any
person … and the event would have entitled the person injured to
maintain an action and recover damages if death had not ensued, the
person … that would have been liable in damages if death had not
ensued shall be liable for damages as specified in this act
notwithstanding the death of the person injured.
Fla. Stat. § 768.19. The action is to be brought by the decedent’s personal representative, who
shall recover the damages specified in the FWDA for the benefit of the decedent’s survivors and
estate. Fla. Stat. § 768.20. Where, as here, the decedent does not have a surviving spouse, the
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FWDA permits children of the decedent to recover damages “for lost parental companionship,
instruction, and guidance and for the mental pain and suffering from the date of the injury.” Fla.
Stat. § 768.21(3). The decedent’s personal representative may also recover, for the estate,
medical or funeral expenses due to the decedent’s injury or death that have become a charge
against the estate or that were paid by or on behalf of the decedent. Fla. Stat. § 768.21(6). In
addition, when one or more of the elements of compensatory damages that are recoverable under
Section 768.21 of the FWDA are established, punitive damages may be recovered. Martin v.
United Sec. Services, Inc., 314 So. 2d 765, 772 (Fla. 1975).
A.
Compensatory Damages
The Estate seeks to recover two categories of compensatory damages: the $8,482.43 in
funeral-related expenses pursuant to Fla. Stat. 768.21(6) and $5 million in non-economic damages
for the harm suffered by his daughter, Amber Eileen, pursuant to Fla. Stat. 768.21(3). The
funeral-related expenses are well-supported in the record (Doc. 134-53) and the Estate is clearly
entitled to receive them. The issue of the noneconomic harm suffered by Amber Eileen, however,
is not so cut-and-dried.
As the Estate notes in its trial brief, in cases such as these the factfinder is “asked to place a
dollar amount on suffering,” an inherently subjective task. See Myers v. Central Fla. Investments,
Inc., 592 F.3d. 1201, 1213 (11th Cir. 2010). The only things even resembling objective criteria
for translating things such as emotional harm and lost companionship into a dollar amount are the
damages awards made by factfinders in similar cases. The cases submitted by the Estate support
the compensatory damages award it seeks here on behalf of Amber Eileen.
In Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018), for example, the
Florida Supreme Court reinstated the trial court’s $4.5 million non-economic damages award,
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which had been vacated as excessive by the Fourth District Court of Appeal. In that case, an
adult child whose mother died of lung cancer was awarded $6 million in noneconomic damages,
though a jury finding of 25 percent fault on the mother’s part resulted in the award being reduced
to $4.5 million. Id. at 273. The mother was 58 when she died, and the daughter was 42, and the
evidence established a “very close and unique” relationship between them, more like one between
sisters than between parent and adult child. Id. at 271-72.
The evidence here established that the relationship between Amber Eileen and her father
was also a close one, though not so close as the relationship at issue in Odom. Thus, everything
else being equal, one would expect that the harm suffered by Amber Eileen would have been
somewhat less profound than the harm suffered by the plaintiff in Odom and would not support
quite so large an award of damages. And indeed, the amount sought here for the loss of that
relationship, and the resulting pain and suffering – $5 million – is substantially less than the
amount awarded in Odom, which was $6 million (though subsequently reduced on the basis of
comparative fault). In addition, Gregory Faull was only 52 when he died, meaning that his
relationship with his daughter would have been expected to continue six years longer than the
relationship at issue in Odom. Taking all of this into consideration, the Court finds that the Odom
case supports the award of damages sought here. Therefore, $5 million will be awarded in
noneconomic damages, along with the award of $8,482.43 for funeral expenses.
B.
Punitive Damages
In addition to the compensatory damages of just over $5 million set forth above, the Estate
seeks to recover $35 million in punitive damages.
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Punitive damages are not intended to further compensate the victim, but to punish the
defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the
future. Myers 592 F.3d at 1216. The United States Supreme Court has stated that a review of a
punitive damages award must include consideration of three guideposts to determine whether the
award is unconstitutionally excessive:
(1) the degree of reprehensibility of the defendant’s misconduct; (2)
the disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages award; and (3) the difference
between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d
585 (2003) (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134
L.Ed.2d 809 (1996)). The Estate points out, in regard to the third guidepost, that the penalties for
premeditated murder include the death penalty (Doc. 128 at 11) but does not discuss civil penalties
that might be authorized in similar cases. Therefore, the Court will not consider that guidepost
here. 6 The remaining guideposts will be considered in turn.
1. Reprehensibility
The Supreme Court has described the first guidepost – the degree of reprehensibility of the
defendant’s conduct – as “the most important indicium of the reasonableness of a punitive
damages award.” Gore, 517 U.S. at 575, 116 S.Ct. 1589. In assessing that degree of
reprehensibility, courts are to consider (1) whether the harm caused was physical as opposed to
economic; (2) whether the tortious conduct evinced an indifference to or a reckless disregard of
6
Similarly, the Court notes that the record in this case is essentially devoid of evidence
regarding McAfee’s current net worth. Given that the Defendant chose not to avail himself of the
opportunity to present evidence regarding his ability to pay, the Court has not taken this issue into
consideration in setting the amount of punitive damages to be awarded.
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the health or safety of others; (3) whether the target of the conduct had financial vulnerability; (4)
whether the conduct involved repeated actions or was an isolated incident; and (5) whether the
harm was the result of intentional malice, trickery, or deceit, or mere accident. Id. at 576–77, 116
S.Ct. 1589.
It goes without saying that our society considers the acts at issue here – torture and murder
– to be the most horrific that one person can inflict upon another. The first, second, and fifth
factors set forth in Gore all support the imposition of punitive damages, as the harm was physical
rather than economic, it showed not merely indifference to the health of another but an intent to
end the life of another, and it was the result of intentional malice. The third and fourth factors –
i.e., financial vulnerability and repetition of conduct – are not present in this case, 7 but the
undersigned sees no way in which their absence diminishes the reprehensibility of the Defendant’s
conduct to any meaningful degree.
2. Disparity
The ratio between the amount of exemplary damages awarded and the actual or potential
harm inflicted on the plaintiff is “perhaps the most commonly cited indicium of an unreasonable
or excessive punitive damages award.” Id., at 580, 116 S.Ct. 1589. The Supreme Court has said
that it cannot establish a “mathematical bright line between the constitutionally acceptable and the
constitutionally unacceptable that would fit every case.” Pacific Mut. Life Ins. Co. v. Haslip, 499
7
In the Third Amended Complaint, the Estate asserted that in an earlier incident on Belize,
McAfee ordered some thugs to assault a local resident who had threatened him. (Doc. 104 at 34). The victim subsequently died as a result of the beating, though likely as an “unintended
consequence” of it. (Doc. 104 at 4). In its trial brief, the Estate argued that this earlier murder
should be taken into consideration with regard to the fourth factor, repetition of conduct.
However, the circumstances of this earlier killing, while horrifying, are far less horrific than the
circumstances here – primarily in that, as the Estate asserts, the earlier death was likely
unintentional. Accordingly, the undersigned does not find that the earlier incident is properly
considered in connection with assessment of the degree of reprehensibility of the acts in this case.
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U.S. 1, 18, 111 S.Ct. 1032, 1043 113 L.Ed. 2d 1 (1991). However, the Supreme Court has
suggested that, in cases where the underlying compensatory damages award is substantial, a
punitive damages award of more than four times the amount of compensatory damages “might be
close to the line of constitutional impropriety.” Campbell, 538 U.S. at 425, 123 S.Ct. at 1524
(citing cases). Although the Estate cited cases in which awards exceeding this ratio were
subsequently upheld, Doc. 128 at 9, the Court finds that a $20 million punitive damages award is
sufficient to punish McAfee for his misconduct and deter further such action in the future. This
results in roughly a 4-to-1 ratio between the exemplary damages and the compensatory damages in
this case.
V.
Conclusion
In consideration of the foregoing, it is hereby ORDERED that the Clerk shall enter
judgment in favor of the Estate and against the Defendant John McAfee on the Estate’s claim
under the Florida Wrongful Death Act for
1. $8,482.43 in funeral expenses per Fla. Stat. § 768.21(6);
2. $5 million in noneconomic damages per Fla. Stat. § 768.21(3); and
3. $20 million in punitive damages.
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