Philip Morris USA, Inc. v. James Naugle, as Personal Representative of the Estate of Lucinda Naugle

District Court of Appeal of Florida

Philip Morris USA, Inc. v. James Naugle, as Personal Representative of the Estate of Lucinda Naugle

182 So. 3d 885, 2016 Fla. App. LEXIS 216, 2016 WL 90746

CourtDistrict Court of Appeal of Florida

DecidedJanuary 6, 2016

Docket4D14-1852

StatusPublished

Cited by1 cases

This text of 182 So. 3d 885 (Philip Morris USA, Inc. v. James Naugle, as Personal Representative of the Estate of Lucinda Naugle) 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.

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Philip Morris USA, Inc. v. James Naugle, as Personal Representative of the Estate of Lucinda Naugle, 182 So. 3d 885, 2016 Fla. App. LEXIS 216, 2016 WL 90746 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM..

This is the third appearance of this case in this court. See Philip Morris USA, Inc. v. Naugle, 103 So.3d 944 (Fla. 4th DCA 2012) (“Naugle I”); Naugle v. Philip Morris USA Inc., 133 So.3d 1235 (Fla. 4th DCA 2014) (Naugle II). In Naugle I, we affirmed on the issue of liability1, but reversed for “a new trial on the issue of damages.” 103 So.3d at 949.

After the retrial on damages, the court interviewed the jury foreperson. The interview disclosed that, after the return of the verdict in the damages retrial, the foreperson received a text message from a second juror which indicated that, over the weekend before the verdict, the second juror had googled the previous verdict in the case. Receipt of non-record information concerning the amount of the prior verdict is an overt act “ ‘which might have prejudicially affected the jury in reaching their own verdict.’ ” Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla.1991) (quoting § 90.607(2)(b), Fla. Stat. Ann. (1987) (Law Revision Council Note-1976)); see also City of Winter Haven v. Allen, 589 So.2d 968, 969 (Fla. 2d DCA 1991). The existehce of the text message from the second juror established reasonable .grounds to believe that some juror .misconduct occurred, which constitutes a legal basis for an interview of the second juror. See Sterling v. Feldbaum, 980 So.2d 596, 599 (Fla. 4th DCA 2008). We therefore remand for the trial court to conduct an interview of the second juror.

We have considered the other issues raised by appellant and find no reversible error. On the cross-appeal, the appellee waived the comparative fault issue by failing to cross-appeal that point in Naugle I. See Airvac, Inc. v. Ranger Ins. Co., 330 So.2d 467, 469 (Fla.1976). We also note that appellee failed to lodge a specific objection as to the application of comparative fault at the retrial.

Affirmed in part, reversed in part, and remanded.

GROSS, GERBER and KLINGENSMITH, JJ., concur.

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PER CURIAM..

This is the third appearance of this case in this court. See Philip Morris USA, Inc. v. Naugle, 103 So.3d 944 (Fla. 4th DCA 2012) (“Naugle I”); Naugle v. Philip Morris USA Inc., 133 So.3d 1235 (Fla. 4th DCA 2014) (Naugle II). In Naugle I, we affirmed on the issue of liability1, but reversed for “a new trial on the issue of damages.” 103 So.3d at 949.

After the retrial on damages, the court interviewed the jury foreperson. The interview disclosed that, after the return of the verdict in the damages retrial, the foreperson received a text message from a second juror which indicated that, over the weekend before the verdict, the second juror had googled the previous verdict in the case. Receipt of non-record information concerning the amount of the prior verdict is an overt act “ ‘which might have prejudicially affected the jury in reaching their own verdict.’ ” Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla.1991) (quoting § 90.607(2)(b), Fla. Stat. Ann. (1987) (Law Revision Council Note-1976)); see also City of Winter Haven v. Allen, 589 So.2d 968, 969 (Fla. 2d DCA 1991). The existehce of the text message from the second juror established reasonable .grounds to believe that some juror .misconduct occurred, which constitutes a legal basis for an interview of the second juror. See Sterling v. Feldbaum, 980 So.2d 596, 599 (Fla. 4th DCA 2008). We therefore remand for the trial court to conduct an interview of the second juror.

We have considered the other issues raised by appellant and find no reversible error. On the cross-appeal, the appellee waived the comparative fault issue by failing to cross-appeal that point in Naugle I. See Airvac, Inc. v. Ranger Ins. Co., 330 So.2d 467, 469 (Fla.1976). We also note that appellee failed to lodge a specific objection as to the application of comparative fault at the retrial.

Affirmed in part, reversed in part, and remanded.

GROSS, GERBER and KLINGENSMITH, JJ., concur.

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182 So. 3d 885, 2016 Fla. App. LEXIS 216, 2016 WL 90746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philip-morris-usa-inc-v-james-naugle-as-personal-representative-of-the-fladistctapp-2016.

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