Pearson v. Philip Morris USA Inc.

270 So. 3d 441
CourtDistrict Court of Appeal of Florida
DecidedMarch 1, 2019
DocketCase No. 2D17-3636
StatusPublished

This text of 270 So. 3d 441 (Pearson v. Philip Morris USA Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pearson v. Philip Morris USA Inc., 270 So. 3d 441 (Fla. Ct. App. 2019).

Opinion

BLACK, Judge.

*443Judith Pearson, as personal representative of the Estate of Donald Pearson, appeals the judgment entered in favor of Philip Morris USA Inc. in this Engle 1 progeny case. Mrs. Pearson raises three issues on appeal, only two of which we address: the court's improper denial of a challenge to a prospective juror for cause, requiring the Estate to use a peremptory challenge to excuse him; and the court's ruling allowing Philip Morris to exercise an out-of-turn peremptory strike. We reverse and remand for a new trial. Our reversal for a new trial renders moot Philip Morris's cross-appeal.

During voir dire, counsel for both the Estate and Philip Morris questioned the venire in an effort to reveal any biases or prejudices. One of the initial questions posed by the Estate was, "When you heard this is a man who smoked cigarettes, smoked them till [sic] he got sick and ultimately he died from cigarette smoke and now his family is suing the tobacco company that sold those cigarettes, how many of you said, What? What? Why?" A number of prospective jurors responded affirmatively to the question, one of whom was Juror Ray. And when individually questioned about his response, Juror Ray expressed his opinion that the Estate would begin "in the red" and many questions would need to be answered for the Estate "to move." Juror Ray stated that he believed smoking to be a choice, "more something they just decide to do on their own rather than really being pushed into it one way or another." He also stated that while he believed he could keep an open mind and hear the evidence, the Estate "would have an uphill argument to make."

After further questioning of the venire, the Estate's counsel returned to Juror Ray and asked him to remind counsel what his thoughts were with regard to the Estate's lawsuit. Juror Ray responded that he felt the Estate would start "a little behind" because smoking is "a matter of personal choice" and "that's a large barrier on a situation like this." He also stated that his opinion would be measured against the evidence but would be difficult to set aside.

The court granted a number of cause challenges to prospective jurors, a few based on the their opinions with regard to smoking being a conscious choice and the Estate starting at a disadvantage or with a strike against it. The Estate sought to excuse Juror Ray for cause based on his statements that the Estate would begin "in the red" and that smoking was a personal choice. After hearing argument from both parties, the court denied the cause challenge.

The court then turned to peremptory challenges, allowing three per side which could only be used on the six jurors then on the panel. The court would not permit peremptory challenges on alternate jurors:

So if we get to alternates and you've got a peremptory, you've got to come back and use it against someone who will be in the six. And then you don't - can't use alternate picks back in the six. And then you have an alternate for - you have a strike for the first alternate and the second alternate.
*444Once we have the first alternate, if you didn't use a strike, you don't get to save it and use it on the second. So you don't end up with two on the second.

The Estate used one peremptory challenge initially; the panel was then agreed upon, subject to backstrikes. The record is somewhat confusing as to what exactly happened next, but what emerges is that although the Estate's counsel clearly exercised the first alternate challenge, he also sought to clarify the identity of the first alternate juror. Juror Padgett was the first alternate; however, counsel for the Estate appears to have mistakenly believed that someone other than Juror Padgett was the first alternate. While the Estate's counsel was attempting to resolve the identity of the first alternate, Philip Morris's attorney was permitted to backstrike a panel member, out of turn, which resulted in Juror Padgett being seated on the jury and negating the Estate's first alternate strike. The following exchange occurred between the Estate's counsel and the trial court:

Estate's counsel: All right. So just so I understand what happened. I was counting to see if I was on the correct alternate, and then I heard, "I'll exercise a peremptory."
The court: That's right.
Estate's counsel: You allowed him to interrupt the alternate challenge to use a peremptory.
The court: I did.
Estate's counsel: Okay. I guess I have to object to the interruption in my exercise of the alternate.
The court: All right. You can object.

Philip Morris used its three peremptory challenges on backstrikes, and the Estate used its final two peremptory challenges on backstrikes, including striking Juror Ray. Counsel for the Estate argued: "In light of your denial for cause, plaintiff renews for cause and/or requests an additional peremptory challenge.... We would have - we would have exercised on Padgett if cause for Ray had not been denied." The court denied the cause challenge and the request for an additional peremptory challenge. Juror Padgett ultimately served as the foreperson of the jury.

"We apply the abuse of discretion standard to a trial court's decision to deny a challenge for cause to a potential juror." Pelham v. Walker, 135 So.3d 1114, 1116 (Fla. 2d DCA 2013). A cause challenge "must be granted if there is any reasonable doubt regarding a potential juror's impartiality." Id."[C]lose cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality." Four Wood Consulting, LLC v. Fyne, 981 So.2d 2, 5 (Fla. 4th DCA 2007). And although "a trial court generally has a 'unique vantage point' to assess the appropriateness of a challenge for cause," the court's assessment must be "fairly supported by the record." Embleton v. Senatus, 993 So.2d 593, 595 (Fla. 4th DCA 2008) (first quoting Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 994 (Fla. 4th DCA 2004) ; and then quoting Trotter v. State, 576 So.2d 691, 694 (Fla. 1990) ).

A trial court's determination of whether a juror can render a verdict based on the evidence presented involves an evaluation of "all of the questions and answers posed to or received from the juror." Although a juror's assurances of impartiality may suggest to a court that the denial of a challenge for cause may be appropriate, such assurances are neither determinative nor definitive. Assurances of impartiality after a proposed juror has announced prejudice [are] questionable at best.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

FOUR WOOD CONSULTING, LLC. v. Fyne
981 So. 2d 2 (District Court of Appeal of Florida, 2007)
Jaffe v. APPLEBAUMM
830 So. 2d 136 (District Court of Appeal of Florida, 2002)
Trotter v. State
576 So. 2d 691 (Supreme Court of Florida, 1990)
Weinstein Design Group, Inc. v. Fielder
884 So. 2d 990 (District Court of Appeal of Florida, 2004)
Ter Keurst v. Miami Elevator Co.
486 So. 2d 547 (Supreme Court of Florida, 1986)
Tedder v. Video Electronics, Inc.
491 So. 2d 533 (Supreme Court of Florida, 1986)
Engle v. Liggett Group, Inc.
945 So. 2d 1246 (Supreme Court of Florida, 2006)
Busby v. State
894 So. 2d 88 (Supreme Court of Florida, 2005)
Banks v. State
46 So. 3d 989 (Supreme Court of Florida, 2010)
Kochalka v. Bourgeois
162 So. 3d 1122 (District Court of Appeal of Florida, 2015)
Matarranz v. State
133 So. 3d 473 (Supreme Court of Florida, 2013)
Pelham v. Walker
135 So. 3d 1114 (District Court of Appeal of Florida, 2013)
Embleton v. Senatus
993 So. 2d 593 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
270 So. 3d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearson-v-philip-morris-usa-inc-fladistctapp-2019.