R.J. Reynolds Tobacco Co. v. Diane Schleider, Etc.
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Opinion
Third District Court of Appeal State of Florida
Opinion filed December 26, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1634 Lower Tribunal No. 13-6984
R.J. Reynolds Tobacco Company, Appellant/Cross-Appellee,
vs.
Diane Schleider, etc., Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel, Judge.
King & Spalding LLP, and William L. Durham II, Chad A. Peterson, Val Leppert (Atlanta, Georgia), and Scott M. Edson and Ashley C. Parrish (Washington, DC); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Douglas J. Chumbley, Jeffrey A. Cohen, and Olga M. Vieira, for appellant/cross-appellee.
Alex Alvarez; Gary M. Paige (Davie, Florida); The Mills Firm, P.A., and John S. Mills and Courtney Brewer (Tallahassee), for appellee/cross-appellant.
Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
LOGUE, J. R.J. Reynolds Tobacco Company appeals the final judgment entered in favor
of Diane Schleider, the wife and personal representative of the Estate of Andrew
Schleider, and Suzanne LeMehaute, their daughter. We affirm and write only to
address R.J. Reynolds’ challenge to the closing arguments and the size of the damage
awards.
Background
Andrew Schleider, a cigarette smoker, died from lung cancer and chronic
obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in
her capacity as personal representative of his estate alleging she and their daughter
were statutory survivors within the meaning of Florida’s Wrongful Death Act. The
complaint alleged the father was a member of the class created in Engle v. Liggett
Group., Inc., 945 So. 2d 1246 (Fla. 2006). Under Engle, if the plaintiff qualifies as
a member of the class, certain facts are found against the defendant tobacco company
as a matter of res judicata without the need of further proof.1
1 The findings include:
(i) “that smoking cigarettes causes” certain named diseases including COPD [chronic obstructive pulmonary disease] and lung cancer; (ii) “that nicotine in cigarettes is addictive;” (iii) “that the [Engle] defendants placed cigarettes on the market that were defective and unreasonably dangerous;” (iv) “that the [Engle] defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;” (v) “that the [Engle] defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive
2 One of the prerequisites for Engle class membership is that the decedent’s
disease manifested on or before November 21, 1996. Id. at 1275. The issue of when
the father’s disease manifested was one of the main issues at trial and the jury’s
finding in favor of the wife and daughter is challenged on appeal, but we affirm that
point without discussion.
The trial spanned nearly three weeks. In addition to the evidence presented at
trial, the jury was instructed on specific findings it must apply if, as occurred,
Schleider was found to be a member of the Engle class. The instructions read to the
jury were:
1. Smoking cigarettes causes lung cancer.
2. Cigarettes that contain nicotine are addictive.
3. Defendant, R.J. Reynolds Tobacco Company, placed cigarettes on the market that were defective and unreasonably dangerous.
4. Defendant, R.J. Reynolds Tobacco Company, concealed or omitted material information not otherwise known or available knowing that the material was false and misleading or failed to disclose a material fact
nature with the intention that smokers and the public would rely on this information to their detriment;” (vi) “that all of the [Engle] defendants sold or supplied cigarettes that were defective;” (vii) “that all of the [Engle] defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants;” and (viii) “that all of the [Engle] defendants were negligent.” Id. at 1276–77.
Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla. 2013) (footnote omitted).
3 concerning the health effects or addictive nature of smoking cigarettes or both.
5. Defendant, R.J. Reynolds Tobacco Company, entered into an agreement with other companies and industry organizations to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment. Those companies include Philip Morris, USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Brown & Williamson Tobacco Corporation, individually and as a successor by merger to the American Tobacco Company, and Liggett Group, Inc. The industry organizations are the Council for Tobacco Research USA, Inc., and the Tobacco Institute, Inc.
Defendant R.J. Reynolds Tobacco Company was negligent. These findings may not be denied or questioned and they may carry – they must carry the same weight they would have if you had determined them yourselves.
....
The findings may not be considered in any way when determining whether punitive damages may be warranted. You must make your determination regarding whether punitive may be warranted based only upon the factual evidence presented to you in the trial.
(Emphasis added). These instructions specified that R.J. Reynolds intentionally
concealed facts regarding the dangers and addictive qualities of cigarettes.
Evidence was presented throughout the trial indicating the tobacco industry
spent approximately $250 billion dollars between 1940 and 2005 to promote and
advertise cigarettes. The jury also heard evidence regarding the tobacco industry’s
lobbying efforts and attempts to conceal the hazards of smoking. In addition, the
4 jury heard from R.J. Reynolds’ own corporate representative that 400,000 to 480,000
people were dying each year from smoking cigarettes.2
During the closing arguments addressing entitlement to punitive damages, the
Plaintiffs’ attorney made various arguments dramatizing the number of deaths
caused by cigarettes and the size of the sums spent to promote smoking and conceal
its dangers. In particular, he noted that 450,000 deaths equate to three plane crashes
every day for a year. He also asked the jury to compare the attempts of Mr.
Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion
spent by the tobacco industry “with all their power, all their money” to encourage
people like the plaintiff to continue smoking.
Regarding the damages awards, the jury heard testimony from the wife
regarding her husband’s illness, the difficulties they endured, and the impact his
suffering and death had upon their lives and future plans. The jury heard from the
wife how she and her husband had been married for thirty years and how his death
came shortly after commencing their retirement in the Florida Keys.
The jury heard the daughter was twenty-two years old when her father died.
The father had been a stay-at-home parent who raised her. She followed her parents
to the Keys, first to live with them, and then to live near them. She saw her father
2 The deposition testimony of James Figlar, PhD, where he appeared as corporate representative for R.J.
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Third District Court of Appeal State of Florida
Opinion filed December 26, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1634 Lower Tribunal No. 13-6984
R.J. Reynolds Tobacco Company, Appellant/Cross-Appellee,
vs.
Diane Schleider, etc., Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel, Judge.
King & Spalding LLP, and William L. Durham II, Chad A. Peterson, Val Leppert (Atlanta, Georgia), and Scott M. Edson and Ashley C. Parrish (Washington, DC); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Douglas J. Chumbley, Jeffrey A. Cohen, and Olga M. Vieira, for appellant/cross-appellee.
Alex Alvarez; Gary M. Paige (Davie, Florida); The Mills Firm, P.A., and John S. Mills and Courtney Brewer (Tallahassee), for appellee/cross-appellant.
Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
LOGUE, J. R.J. Reynolds Tobacco Company appeals the final judgment entered in favor
of Diane Schleider, the wife and personal representative of the Estate of Andrew
Schleider, and Suzanne LeMehaute, their daughter. We affirm and write only to
address R.J. Reynolds’ challenge to the closing arguments and the size of the damage
awards.
Background
Andrew Schleider, a cigarette smoker, died from lung cancer and chronic
obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in
her capacity as personal representative of his estate alleging she and their daughter
were statutory survivors within the meaning of Florida’s Wrongful Death Act. The
complaint alleged the father was a member of the class created in Engle v. Liggett
Group., Inc., 945 So. 2d 1246 (Fla. 2006). Under Engle, if the plaintiff qualifies as
a member of the class, certain facts are found against the defendant tobacco company
as a matter of res judicata without the need of further proof.1
1 The findings include:
(i) “that smoking cigarettes causes” certain named diseases including COPD [chronic obstructive pulmonary disease] and lung cancer; (ii) “that nicotine in cigarettes is addictive;” (iii) “that the [Engle] defendants placed cigarettes on the market that were defective and unreasonably dangerous;” (iv) “that the [Engle] defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;” (v) “that the [Engle] defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive
2 One of the prerequisites for Engle class membership is that the decedent’s
disease manifested on or before November 21, 1996. Id. at 1275. The issue of when
the father’s disease manifested was one of the main issues at trial and the jury’s
finding in favor of the wife and daughter is challenged on appeal, but we affirm that
point without discussion.
The trial spanned nearly three weeks. In addition to the evidence presented at
trial, the jury was instructed on specific findings it must apply if, as occurred,
Schleider was found to be a member of the Engle class. The instructions read to the
jury were:
1. Smoking cigarettes causes lung cancer.
2. Cigarettes that contain nicotine are addictive.
3. Defendant, R.J. Reynolds Tobacco Company, placed cigarettes on the market that were defective and unreasonably dangerous.
4. Defendant, R.J. Reynolds Tobacco Company, concealed or omitted material information not otherwise known or available knowing that the material was false and misleading or failed to disclose a material fact
nature with the intention that smokers and the public would rely on this information to their detriment;” (vi) “that all of the [Engle] defendants sold or supplied cigarettes that were defective;” (vii) “that all of the [Engle] defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants;” and (viii) “that all of the [Engle] defendants were negligent.” Id. at 1276–77.
Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla. 2013) (footnote omitted).
3 concerning the health effects or addictive nature of smoking cigarettes or both.
5. Defendant, R.J. Reynolds Tobacco Company, entered into an agreement with other companies and industry organizations to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment. Those companies include Philip Morris, USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Brown & Williamson Tobacco Corporation, individually and as a successor by merger to the American Tobacco Company, and Liggett Group, Inc. The industry organizations are the Council for Tobacco Research USA, Inc., and the Tobacco Institute, Inc.
Defendant R.J. Reynolds Tobacco Company was negligent. These findings may not be denied or questioned and they may carry – they must carry the same weight they would have if you had determined them yourselves.
....
The findings may not be considered in any way when determining whether punitive damages may be warranted. You must make your determination regarding whether punitive may be warranted based only upon the factual evidence presented to you in the trial.
(Emphasis added). These instructions specified that R.J. Reynolds intentionally
concealed facts regarding the dangers and addictive qualities of cigarettes.
Evidence was presented throughout the trial indicating the tobacco industry
spent approximately $250 billion dollars between 1940 and 2005 to promote and
advertise cigarettes. The jury also heard evidence regarding the tobacco industry’s
lobbying efforts and attempts to conceal the hazards of smoking. In addition, the
4 jury heard from R.J. Reynolds’ own corporate representative that 400,000 to 480,000
people were dying each year from smoking cigarettes.2
During the closing arguments addressing entitlement to punitive damages, the
Plaintiffs’ attorney made various arguments dramatizing the number of deaths
caused by cigarettes and the size of the sums spent to promote smoking and conceal
its dangers. In particular, he noted that 450,000 deaths equate to three plane crashes
every day for a year. He also asked the jury to compare the attempts of Mr.
Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion
spent by the tobacco industry “with all their power, all their money” to encourage
people like the plaintiff to continue smoking.
Regarding the damages awards, the jury heard testimony from the wife
regarding her husband’s illness, the difficulties they endured, and the impact his
suffering and death had upon their lives and future plans. The jury heard from the
wife how she and her husband had been married for thirty years and how his death
came shortly after commencing their retirement in the Florida Keys.
The jury heard the daughter was twenty-two years old when her father died.
The father had been a stay-at-home parent who raised her. She followed her parents
to the Keys, first to live with them, and then to live near them. She saw her father
2 The deposition testimony of James Figlar, PhD, where he appeared as corporate representative for R.J. Reynolds in another case, was read to the jury in this case. The jury also viewed Dr. Figlar’s videotaped deposition taken in this case.
5 continually and provided care for him up to his death. At her wedding, she refused
to have anyone walk her down the aisle in her father’s absence.
In closing argument, Plaintiffs’ counsel requested an award of non-economic
damages for loss of companionship and protection and mental pain and suffering in
the amounts of $11 million to the wife and $7 million to the daughter. Plaintiffs’
counsel informed the jury that they “could go lower . . . or higher, it’s completely
within [the jury’s] province to do.” On rebuttal, Plaintiff’s counsel again requested
those amounts and argued that the figures represented, “fair compensation:” “if we
could ask for more compensatory damages, I assure you that we would have.” R.J.
Reynolds’s counsel immediately objected on the basis, stated in front of the jury,
that “there is no limit on what they can ask for.”
The jury ultimately awarded $15 million in non-economic damages to the wife
and $6 million to the daughter, but refused to award the requested punitive damages.
Regarding comparative negligence, Plaintiffs’ counsel requested the jury find R.J.
Reynolds 87.5% at fault and the decedent 12.5% at fault. The jury instead found R.J.
Reynolds 70% at fault and the decedent 30% at fault. Following the application of
comparative fault, the final judgment awarded $10.5 million to the wife and $4.2
million to the daughter.
Among other motions, R.J. Reynolds moved for a new trial on damages and
for remittitur. The motions were denied and this appeal followed.
6 Analysis
R.J. Reynolds first argues that Plaintiffs’ counsel made improper arguments
during closing which warranted a new trial. We review the trial court’s denial of the
motion for a new trial under an abuse of discretion standard. See Engle, 945 So. 2d
at 1271 (“A trial court’s order granting or denying a motion for a new trial based on
either objected-to or unobjected-to improper argument is reviewed for abuse of
discretion.”). “If the issue of an opponent’s improper argument has been properly
preserved by objection and motion for mistrial, the trial court should grant a new
trial if the argument was so highly prejudicial and inflammatory that it denied the
opposing party its right to a fair trial.” Id. (quotation omitted).
While we do not condone the closing argument comments to which R.J.
Reynolds objected, we conclude that the complained-of comments fall short of
denying R.J. Reynolds its right to a fair trial. In reviewing the comments, it is
important to remember their context. This case was a nearly three-week-long
bifurcated Engle progeny case involving claims for intentional and non-intentional
torts and prayers for non-economic compensatory damages flowing from Plaintiffs’
loss of companionship and protection and pain and suffering, as well as for punitive
damages.
Arguments inappropriate in a simple negligence case may be appropriate
concerning record evidence of a parties’ intentional misconduct in the context of a
7 claim for punitive damages. To give an obvious example, it is generally reversible
error in a simple tort case seeking compensatory damages to ask a jury to “send a
message” and punish or penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394
So. 2d 228, 229 (Fla. 5th DCA 1981). Here, however, the jury was instructed to
consider whether R.J. Reynolds committed intentional misconduct, meaning
“Reynolds had actual knowledge of the wrong of the conduct and the high
probability that injury would result and, despite that knowledge intentionally
pursued that course of conduct,” in which event the jury was directed to consider the
propriety of punitive damages “as a punishment to Reynolds and as a deterrent to
others.”
R.J. Reynolds complains about the way Plaintiffs’ counsel in closing noted
that the 450,000 deaths from smoking annually equated to three airline crashes per
day every day for a year. Although provocative and even somewhat inflammatory,
the comparison itself was mild considered the magnitude of the number of deaths
due to smoking (400,000 to 480,000 deaths annually) which was testified to by R.J.
Reynolds’ own corporate representative. The Surgeon General of the United States
and the Connecticut Public Health Policy Institute have made this same, or similar
comparison.3
3 See C. Everett Koop, Don’t Forget the Smokers, Washington Post, March 8, 1998, https://www.washingtonpost.com/archive/opinions/1998/03/08/dont-forget-the- smokers/3560fbed-880a-45ff-8669-110fd8b63509/?utm_term=.9c67a0fe6169;
8 Among other things, this comparison was probative of whether R.J. Reynolds
had actual knowledge of its wrongdoing “and the high probability that injury would
result.” In the context of this trial, it appears that Plaintiffs’ counsel was simply
illustrating or contextualizing the number of smoking-related deaths in an attempt to
establish entitlement to punitive damages. Importantly, the jury was repeatedly
informed and instructed that they were to assess damages only for the harm caused
to the individual plaintiffs in this case. The jury ultimately did not award any punitive
Nevertheless, R.J. Reynolds contends this argument requires reversal under
cases such as Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA
1994). Blalock involved a lawsuit filed by the parents of a child who had his thumb
amputated while on the Pirates of the Caribbean ride at Walt Disney World. The jury
entered a verdict in favor of the plaintiff and Walt Disney World appealed. On
appeal, the Fifth District noted that counsel for the plaintiff in closing “express[ed]
his personal opinion that it was ‘outrageous’ for [Walt Disney World] to assert its
defense of contributory negligence-despite evidence that the minor plaintiff and his
Joseph Cooney, et al., Examining Tobacco Use, Consequences and Policies in Connecticut: Smoke and Mirrors?, The Connecticut Public Health Policy Institute, April 28, 2010, at 6.
9 father had been told to keep their arms inside the boat at all times and an admission
that the boy’s hand had been in the water.” Id. at 1157-58.
Moreover, in Blalock, the plaintiffs’ “[c]ounsel also expressed his personal
opinion on the credibility of several [Walt Disney World] witnesses, contrary to Rule
4-3.4(e) of the Florida Bar Rules Governing Professional Conduct.” Id. at 1158.
Beyond that, “other [Walt Disney World] witnesses were sarcastically referred to as
‘a good soldier’ or ‘this joker’ to derogate them, and [Walt Disney World] was
compared to ‘some nickel and dime carnival’ throwing ‘pixie dust’ to delude the
jurors.” Id. The court concluded that the closing argument in Blalock was “pervaded
with inflammatory comments and the personal opinion of counsel.” Id. at 1157. The
comments in Blalock were unconnected to the evidence. They were not made to
place the gravity of certain evidence in context, but rather, amounted to an
expression of personal opinion in violation of the rules governing professional
responsibility. The comments also violated well-settled black letter law by inviting
the jury to consider matters outside of the evidence based on the denigration of
witnesses. 4
4 We also note that in Blalock, the plaintiff’s expert began telling the jury of Walt Disney World’s post-accident remedial measures, apparently unaware of the court’s in limine order precluding same. Blalock, 640 So. 2d at 1158. The court also considered the impact of the attorney’s conduct during closing in light of the $275,000 future medical expenses award for which “[t]here was no evidentiary basis . . . and had not even been sought in the closing argument.” Id. at 1159.
10 Other cases cited by the R.J. Reynolds are equally distinguishable. For
example, in DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 1997), the criminal
defendant was accused of pointing a laser-sighted firearm at two individuals. The
Fourth District concluded there were several instances of prosecutorial misconduct
warranting reversal. The misconduct included: (1) “the prosecuting attorney . . .
suggesting or inferring on cross-examination . . . that Appellant was a person with a
temper which perhaps was so bad that it led him to hitting his own sister in the head
with a baseball bat,” even though any such evidence was inadmissible; (2) the
prosecutor made a golden rule argument during closing, by asking the jurors to
consider how terrifying it would have been for any given juror to have had the gun
at issue pointed at his or her chest by the defendant; and (3) the prosecutor
impermissibly made a comparison in closing between the defendant’s case and the
O.J. Simpson case. Id. at 601. The O.J. Simpson “reference, coupled with the
reference to [the defendant] as a stalker, possessive ex-boyfriend who disapproved
of his ex-girlfriend’s friends, simply crossed the line of proper vigorous and diligent
advocacy and violated the rule against inflammatory argument.” Id.
Notably, the court specifically stated that “the prosecutor’s reference to the
O.J. Simpson [case], standing alone, may not have been sufficient to reach the very
heart of [the defendant’s] criminal trial and may not have risen to the level of
fundamental error; however its contribution to the cumulative effect of the totality
11 of the misconduct reached far beyond that which the right to a fair criminal trial
allows.” Id. Defreitas is therefore distinguishable because it involves a cumulative
impact and level of attorney misconduct which is not present in the case before us.
R.J. Reynolds also contends reversal is warranted because the Plaintiffs’
counsel compared the efforts of the plaintiff to quit smoking with “all their power,
all their money” (referring to R.J. Reynolds and other tobacco companies) spent to
encourage individuals like Mr. Schleider to keep smoking. After the parties went to
sidebar and the Plaintiffs’ counsel explained the comment, the court allowed him to
rephrase before the jury. The Plaintiffs’ counsel then proceeded to remind the jury
of the testimony regarding the amount of $250 billion dollars spent between 1940
and 2005 on cigarette advertising and promotion. Counsel further clarified the
“power” comment by reminding the jury of the evidence presented regarding the
lobbying efforts of the tobacco companies to influence Congress. R.J. Reynolds did
not object to the explanation made by the Plaintiffs’ counsel.
When these comments are placed in the unique context of the evidence
presented at this trial, the comments related to “wealth” and “power” do not merit
reversal. In this regard, Samuels v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010),
relied upon by R.J. Reynolds, is not comparable. Samuels was injured in an
automobile accident caused by Torres and filed suit against him. The first trial
resulted in a mistrial due to improper comments of Torres’ defense counsel
12 suggesting that Torres could not afford to pay a substantial award. During opening
statements in the second trial, the defense attorney gave “a little bit of background
on Mr. Torres” which amounted to telling the jury of Mr. Torres’ work as a truck
driver and the meager nature of his earnings. Id. at 1195-96.
The Fifth District noted that “[w]hen counsel for Torres revealed the meager
income of his client, a juror began to cry and told the trial judge that the stories she
heard were ‘sad.’” Id. at 1196-97. Furthermore, despite the fact that “Samuels
presented significant evidence regarding her injuries,” and evidence regarding a
$60,000-$80,000 future spinal surgery, the jury only awarded the future medical
expenses in “the sum of $1,000 per year of her projected thirty-four years of
remaining life, an award completely devoid of evidentiary support” which the trial
court believed “is explainable only as a result of the prejudicial statement made about
the irrelevant issue of Torres’ meager income.” Id. at 1197. This is not what occurred
in the case before us.
Finally, R.J. Reynolds contends that plaintiffs’ counsel improperly denigrated
the defense. After carefully reviewing the transcript, we reject this argument.
Plaintiff’s attorney in closing was in the middle of saying “so in fact they still, still,
to this day, trying to pretend like they . . . ” when his statement was interrupted by
an objection and he was ordered to move on, which he did. While some of Plaintiffs’
counsel’s comments approached the boundary of what constitutes proper argument,
13 they did not rise to the requisite level to warrant a new trial. The evidence at trial, as
well as the jury instructions, demonstrated that R.J. Reynolds affirmatively
attempted to conceal from the public information regarding the health dangers of
cigarettes. Furthermore, testimony demonstrated that at one point, when public
service announcements were shown along with cigarette ads, tobacco companies
attacked the public service announcements, calling them false and misleading.
Evidence at trial also showed that executives within the tobacco industry actively
disputed – if not misrepresented – the harmful effects of cigarettes despite available
scientific proof at the time.
“Attorneys should be afforded great latitude in presenting closing argument,
but they must ‘confine their argument to the facts and evidence presented to the jury
and all logical deductions from the facts and evidence.’” Murphy v. Int’l Robotic
Systems, Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Knoizen v. Bruegger, 713
So. 2d 1071, 1072 (Fla. 5th DCA 1998)). Plaintiffs’ counsel’s comments during his
closing argument in this case may be considered to be close to the limits of what is
acceptable. Indeed, they may well justify reversal in a different context. In the
context of the evidence of this particular trial, however, we find that the comments
did not rise to a level that requires reversal.
This conclusion is particularly compelling here because the trial spanned
nearly three weeks and closing argument ended on a Friday. The jury returned the
14 following Monday, engaged in two days of deliberation, and found in favor of R.J.
Reynolds on the question of punitive damages and concealment; awarded less than
the compensatory amount requested for the daughter; and attributed a higher
percentage of comparative negligence to Schleider than what Plaintiffs’ counsel
argued for in closing. These actions by the jury strongly indicate the jury was not
inflamed, prejudiced, or improperly mislead by closing arguments.
This brings us to R.J. Reynolds’ main argument on appeal. R.J. Reynolds’
main argument on appeal concerns the trial court’s denial of its motions for remittitur
and a new trial on damages. It contends the amounts awarded by the jury of $15
million to the wife and of $6 million to the daughter are excessive. The award of
money damages for pain and suffering reflects an attempt to establish an objective
economic equivalent for the subjective pain a person suffered. It has been described
as “an attempt to ‘measure that which is immeasurable.’” Ortega v. Belony, 185 So.
3d 538, 540 (Fla. 3d DCA 2015) (quoting Food Fair Stores, Inc. v. Morgan, 338 So.
2d 89, 92 (Fla. 2d DCA 1976)).
Because of the inherent difficulty in measuring non-economic damages such
as pain and suffering, the Florida Supreme Court has determined that “[t]he jury,
guided by its judgment and everyday life experiences, is in the best position to make
a fair assessment of these damages.” Odom v. R.J. Reynolds Tobacco Co., No.
15 SC17-563, 2018 WL 4496563, at *6 (Fla. Sept. 20, 2018) (quoting Angrand v. Key,
657 So.2d 1146, 1149 (Fla. 1995)). As the Supreme Court has further explained:
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.
Id. (quoting Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla.
1955)).
For this reason, a jury’s award of damages should not be disturbed unless “it
is so inordinately large as obviously to exceed the maximum limit of a reasonable
range within which the jury may properly operate.” R.J. Reynolds Tobacco Co. v.
Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012) (quoting Bould v. Touchette,
349 So. 2d 1181, 1184–85 (Fla. 1977)). Moreover, having heard the same evidence
as the jury, “[t]he trial court is in the best position to determine whether the
compensatory damages award is excessive.” Lorillard Tobacco Co. v. Alexander,
123 So. 3d 67, 79 (Fla. 3d DCA 2013). For this reason, “[w]e review the trial court’s
denial of . . . post-trial motions for remittitur and new trial under the abuse of
discretion standard.” Maggolc, Inc. v. Roberson, 116 So. 3d 556, 558 (Fla. 3d DCA
2013).
16 The remittitur statute reads in pertinent part as follows:
(1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.
(3) It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.
(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(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
17 (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.
(6) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state.
§ 768.74, Fla. Stat. (2014) (emphasis added).
None of the factors set forth in the remittitur statute to justify a reduction are
present here. The jury did not find in favor of the Plaintiffs on all counts. The jury
apportioned a greater percentage of fault to the decedent than requested by Plaintiffs.
The jury awarded the daughter less than she sought. Lastly, the jury elected not to
award punitive damages. Indeed, the jury awarded the wife $15 million when she
only requested $11 million, but both counsel for Plaintiff and counsel for R.J.
Reynolds told the jury there was no limit on what the plaintiff could request and
counsel for R.J. Reynolds suggested no actual number to the jury. On balance, we
find nothing to suggest impropriety, partiality, or a runaway jury.
“Under Florida law an award of non-economic damages must bear a
reasonable relation to the philosophy and general trend of prior decisions in such
18 cases.” Philip Morris USA Inc. v. Cohen, 102 So. 3d 11, 18 (Fla. 4th DCA 2012),
quashed on other grounds in R.J. Reynolds Tobacco Co. v. Cohen, No. SC13-35,
2016 WL 375143 *1 (Fla. Jan. 26, 2016) (quoting Bravo v. United States, 532 F.3d
1154, 1162 (11th Cir. 2008)). Here, the awards do precisely that.
The award of $15 million is indeed higher than awards in the $10 to $12.5
million range previously upheld by this and other courts. See, e.g., Philip Morris
USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA 2015) (upholding $12.5
million verdict)5; Alexander, 123 So. 3d at 76-79 (upholding trial court’s reduction
of $20 million verdict to $10 million); Philip Morris USA, Inc. v. Kayton, 104 So.
3d 1145, 1147 (Fla. 4th DCA 2012) (upholding $8 million compensatory damages
award but reversing $16 million punitive award for determination of statute of repose
issue), quashed on other grounds in Kayton v. Philip Morris USA, Inc., Nos. SC13-
171, SC13-243 (Fla. Feb. 1, 2016) (summarily quashing decision and reinstating jury
verdict); Cohen, 102 So. 3d at 19 (upholding $10 million compensatory damages,
but reversing $10 million punitive damages for determination of statute of repose
issue); Townsend, 90 So. 3d at 307 (upholding a $10.8 million compensatory
damages award and $80 million in punitive damages).6
5 The Cuculino jury apportioned 60% of the fault to Mr. Cuculino, reducing the actual award to $5 million. Cuculino, 165 So. 3d at 39. 6 The Townsend jury found R.J. Reynolds to be 51% responsible for the death of Mr. Townsend, reducing the jury award in accordance with the allocation of
19 However, these awards from other cases do not establish a cap on non-
economic damages for surviving spouses in the amount of $10 million for all time
and for all circumstances. As the Supreme Court recently noted, “neither the
Legislature nor this Court has limited or established a bright-line cap on the amount
a survivor may be awarded in noneconomic damages under the wrongful death
statute.” Odom, 2018 WL 4496563, at *9.
Moreover, the award here is only a fraction higher—not multiple times
higher—than those previously upheld. Cf. Rety v. Green, 546 So. 2d 410, 420 (Fla.
3d DCA 1989) (reversing denial of remittitur of award “nearly twenty times higher
than any libel verdict which has ever been upheld on appeal in Florida or
elsewhere”). This award therefore cannot be said to be “so inordinately large as
obviously to exceed the maximum limit of a reasonable range within which the jury
may properly operate.” Bould, 349 So. 2d at 1184–85.
Considering the unique facts of this case and weighing the evidence, the jury
made its determination that a $15 million award to the wife was warranted. The jury
heard significant evidence in support of the wife’s loss of consortium and pain and
suffering claims. The jury heard evidence that Schleider was fifty-six and his wife
percentage of fault. The trial court entered a judgment against R.J. Reynolds in the amount of over $46 million, consisting of approximately $5.5 million in compensatory damages and $40.8 million in punitive damages.
20 was fifty-five at the time of his death; they had been married for thirty years, and
had four children. Schleider had become disabled and, as a result, was a stay-at-
home parent and the primary caregiver for their family. The wife had just retired and
the couple moved to the Florida Keys when Schleider was first diagnosed. He passed
away within roughly two years. During that time, the wife watched as Schleider
withered away and suffered.
By the end, he had lost all of his hair, he could not use the commode by himself
(which was kept next to his bed because he could not walk to the bathroom), and
was being daily administered morphine for his pain. After testifying about the
suffering she witnessed, she said, “I do not want to ever see anybody else suffer like
that.” Even twenty years later, the wife has never remarried. The Plaintiffs also
published certain life expectancy tables to the jury to establish the duration of loss.
The trial court, having heard the same testimony the jury relied upon, upheld the
jury’s award. Given the evidence presented, fifteen million dollars for the loss of a
spouse as the wife embarked on her retirement and the couple moved to the Florida
Keys may be more than what we would have awarded as jurors, but it is not so
inordinately large as to justify reversal of the jury award and the trial court in this
case.
Similarly, the jury determined that a $6 million award to the daughter – $1
million less than what Plaintiff requested – was appropriate. R.J. Reynolds primarily
21 relies on a number of cases involving damages awards to adult children to establish
that the award in this case is an outlier, and therefore, excessive. However, a
comparison of this award to cases involving adult children is inappropriate because
the daughter was not an adult child under the statute. Florida’s Wrongful Death Act
expressly permits recovery of damages by either a decedent’s surviving spouse,
surviving minor child, or both. § 768.21(1)-(3), Fla. Stat. (permitting recovery for
loss of parental companionship and pain and suffering for a surviving adult child
only where there is no surviving spouse). In doing so, the statute defines a minor as
a child “under 25 years of age, notwithstanding the age of majority.” § 768.18(2),
Fla. Stat. Here, the Schleider’s daughter was twenty-two years old, and thus a
statutory minor, when her father died.
The jury heard the daughter’s testimony regarding her father’s presence in her
life and the closeness of their relationship. She testified that he was the primary
caregiver, “Mr. Mom,” and the primary source of support and guidance in her life.
She moved from New York to the Florida Keys to be closer to her parents and, once
her father got sick, she helped take care of him. The jury also heard that no one
walked her down the aisle at her wedding. The jury heard that she is unable to speak
about his death even 20 years later because “the way he died” causes her to cry. She
explained that she began experiencing and still has panic attacks to this day as a
result of his death.
22 We simply cannot draw a bright line establishing a particular age involving a
surviving minor under Florida’s Wrongful Death Act that would warrant a lesser or
greater award. Children will have different relationships with parents. Some parents
will be close, as was the case here; some not. An inquiry into this matter is factually
intensive and turns largely on the nature and credibility of the evidence presented,
not merely the age of the surviving child.
There are few published opinions for comparison. However, the award in this
case falls squarely within the realm of those awards. At the outset, we acknowledge
the cases where appellate courts have reversed jury awards of $6 million to adult
children as excessive. See Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 470-
71 (Fla. 4th DCA 2016) (concluding that $5 million award to each of three surviving
adult children of the deceased smoker was excessive and there was no evidence “of
the type of close or supportive relationship that would justify such an award”)7; R.J.
Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 337 (Fla. 1st DCA 2012) (reversing
an $8 million award to an adult surviving child of a cigarette smoker who was fifty-
four years old when her father passed away on the basis that it was excessive as
compared to other similar Engle awards).
7 The initial brief in Putney indicated that the adult children were each in their thirties and living independently. Initial Brief for Appellant Philip Morris USA Inc. and R.J. Reynolds Tobacco Company at 20, Philip Morris USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016) (Nos. 4D10-3606 & 4D10-5244 Consol.).
23 But we do not read these cases as establishing a cap for minor children for all
time and all circumstances. Indeed, a court has upheld awards of $7.5 and $4 million
to surviving minor children under similar circumstances. R.J. Reynolds Tobacco Co.
v. Grossman, 211 So. 3d 221, 229 (Fla. 4th DCA 2017), review denied, No. SC17-
706, 2017 WL 3751318, review granted on other grounds, No. 17-688, 2018 WL
3097036, remanded on other grounds to 4D13-3949, 2018 WL 3375363 (Fla. 4th
DCA July 11, 2018). A court has also upheld an award of $4.4 million to a surviving
minor whose mother was killed instantly in a car accident. See Citrus County v.
McQuillin, 840 So. 2d 343, 347-48 (Fla. 5th DCA 2003). Moreover, as noted above,
the Supreme Court recently held that “neither the Legislature nor this Court has
limited or established a bright-line cap on the amount a survivor may be awarded in
noneconomic damages under the wrongful death statute.” Odom, 2018 WL
4496563, at *9.
Given the extremely fact-specific nature of the individual relationships that
are a basis for a compensation award to a minor statutory survivor, it is only natural
that jury verdicts will vary. The problems of determining the nature of these
relationships and a commensurate award goes to the heart of why we use juries to
set the amount. While we entertain notions that an award may “raise judicial
eyebrows” or “shock the judicial conscience,” we have yet to establish an objective
measure to evaluate when a jury’s award for pain and suffering is too large or too
24 small. In deciding whether to grant remittitur, the trial court has wide discretion
precisely because it has a better vantage to determine whether an award is excessive.
In contrast, as appellate courts, having only the cold transcripts before us, we lack
the vantage of the trial courts in these matters.
The dissent somewhat summarily concludes that there is nothing “unique”
about the daughter’s suffering. We are reminded of Tolstoy’s observation that “all
happy families are alike; each unhappy family is unhappy in its own way.”
Reflecting this wisdom, our system of laws leave the nature and extent of the
daughter’s suffering to the province of the jury, and then to the trial judge who
actually saw and heard the testimony. Particularly, as appellate judges with only the
cold record before us, we “must resist the urge to ‘declare a verdict excessive merely
because it is above the amount which the court itself considers the jury should have
allowed.’” Odom, 2018 WL 4496563 at 9 (quoting Bould, 349 So. 2d at 1184).
Here, we find no abuse of discretion by the trial court in denying remittitur
or a new trial on the awards to the wife and daughter.
Affirmed.
EMAS, J., concurs.
25 R.J. Reynolds Tobacco Company v. Diane Schleider, etc., Case No. 3D15-1634
ROTHENBERG, C.J. (dissenting).
The majority opinion makes a valiant attempt to minimize the impact of the
improper arguments made by plaintiffs’ counsel and to distinguish the cases that
have been reversed for similar improper arguments. However, as will be carefully
addressed in this dissent, the cumulative effect of the improper arguments in this
case, which is not unique in terms of the evidence against R.J. Reynolds, but is
unique in the scarcity of evidence in the record to support the exorbitant loss of
consortium awards to Mr. Schleider’s wife and non-dependent child, requires a new
trial.
A new trial is required because the Plaintiffs’ counsel made numerous
improper and inflammatory closing arguments. These improper arguments, which
were repeatedly objected to by R.J. Reynolds, but which were inexplicably overruled
or ignored by the trial court, contributed to the very high jury awards and denied R.J.
Reynolds of its right to a fair trial. As this dissent will document, the Plaintiffs’
closing arguments were highly improper, the trial court erred by overruling R.J.
Reynolds’ objections and by denying R.J. Reynolds’ repeated requests to explain its
objections to the trial court at side bar, and the Plaintiffs have failed to demonstrate
26 that these errors are harmless. In fact, the extremely high jury awards demonstrate
the opposite. For these reasons, I respectfully dissent. R.J. Reynolds is entitled to a
new and fair trial.
The Plaintiffs’ improper arguments fall within the following three categories
which will be addressed in turn: (1) inflammatory arguments designed to invoke the
jury’s emotions (sympathy and anger); (2) attacks upon R.J. Reynolds and its
counsel for their defense of the case; and (3) comparing R.J. Reynolds’ “wealth” and
“power” to that of Mr. Schleider, who was alternatively referred to as “just a child”
when he began to smoke and “a gentleman who was addicted to nicotine” as an adult.
I. Plaintiffs’ Counsel’s Improper Arguments
A. The Plaintiffs’ inflammatory arguments
One of the Plaintiffs’ themes in its closing arguments was that the jury should
punish R.J. Reynolds for the millions of people (8.5 million, according to the
Plaintiffs’ counsel) who are currently living with smoking-related illnesses and for
the 450,000 Americans who die each year from smoking-related illnesses.
[Plaintiffs’ Counsel]: . . . [T]hese corporations, they can’t do this and get away with it. They can’t do this for 50 years, 450,000 Americans die every year, okay? And that’s a lot of people. . . . . [Plaintiffs’ Counsel]: So when we talk about 450,000 who die every year, it doesn’t seem - - you know, it’s a number that maybe you grow numb to, but if you wrap your mind around that number and you think about it, what that means is if there is a plane crash tomorrow and - -
R.J. Reynolds immediately objected and requested to make a motion but the
27 trial court overruled the objection and did not hear R.J. Reynolds’ motion.
Emboldened by the trial court’s ruling, the Plaintiffs’ counsel charged forward,
building on his plane crash theme and inflaming the jury with not only the number
of smoking-related deaths, but by invoking images of plane crashes and the
mourning public.
[Plaintiffs’ Counsel]: So if a plane crashed, it would be big news, right? People would be watching it on CNN and we would watch it and we would feel bad for those families and we would mourn with the families and everybody would feel bad, and it would be horrible. 450,000 is the equivalent –
[Defense Counsel]: Your Honor, I’m sorry to interrupt. Can I just get a continuing objection?
[The Court]: Yes.
[Defense Counsel]: I need to make a motion, I have a number of objections to this.
[The Court]: That’s fine. Thank you.
[Plaintiffs’ Counsel]: The number would be the equivalent in terms of number, just so you could wrap your mind around the harm being done, of three plane crashes every day for a year. That would be about 450,000 Americans. And that’s why I say when you consider what they’ve done, the harm of what they done. . . . And that’s the evidence in this case about how many people have died, and he was just one of them.
(Emphasis added).
These arguments made by the Plaintiffs’ trial counsel were not only improper
because they were inflammatory, but were also improper because they inferred that
28 the jury could and should punish R.J. Reynolds for the harm suffered by all smokers
caused by the entire tobacco industry. However, both compensatory and punitive
damages in these individual smoker cases must be confined to the damages suffered
solely by the plaintiff in each case being tried—not all plaintiffs, all potential
plaintiffs, and certainly not all Americans with smoking-related illnesses.
Otherwise, juries might, and it appears did in this case, award damages based on the
hundreds of thousands of Americans who may have died and who may die in the
future from a smoking-related illness and the millions of Americans living with
smoking-related illnesses, all of whom were non-parties in the instant litigation.
The Plaintiffs’ counsel contends that there was nothing improper about his
arguments highlighting the number of smoking-related deaths (allegedly 450,000
each year) and the number of persons living with smoking-related illnesses
(allegedly 8.5 million). He also contends there was nothing improper with asking
the jury to picture watching CNN reporting on a plane crash and asking the jury to
envision how bad “we would feel for those families and we would mourn with the
families and everyone would feel bad, and it would be horrible,” and then telling the
jury to envision that horrible loss extending to 450,000 Americans and to multiply
that horror to the horror of three plane crashes every day for a year. The Plaintiffs’
counsel contends that his “vivid or descriptive analogy” was utilized to help the jury
“grasp the sheer magnitude of the harm caused by RJR’s misconduct.” But that is
29 exactly why these arguments were improper.
The majority also concludes that because the Plaintiffs were seeking punitive
damages in this case, these highly inflammatory arguments were permissible.
However, as will be discussed below, that conclusion is in direct conflict with
established Florida Supreme Court precedent and constitutional due process. The
record also reflects that the Plaintiffs’ counsel used the number of smoking-related
illnesses and deaths in its plea for the jury to punish RJ Reynolds for an improper
purpose. The number of smoking-related deaths or smoking-related illnesses was
improperly used by the Plaintiffs to inflame the jury and to seek an award that
punished R.J. Reynolds for the alleged injury and death to non-parties in this case.
The case law is clear on the impropriety of such arguments, as the jury should only
have been permitted to consider the damages suffered by the plaintiffs in this case—
Mr. Schleider’s wife and Mr. Schleider’s non-dependent daughter, and to punish
R.J. Reynolds for its actions as it relates to the plaintiffs in this case. The Plaintiffs’
counsel’s impassioned arguments, however, improperly urged the jury to consider
the death or injury to millions of non-parties when determining the amount of
damages to award in this case, which did not include these non-parties. This violated
R.J. Reynolds’ constitutional right to due process.
In Philip Morris USA v. Williams, 549 U.S. 346, 349 (2007), when answering
“whether the Constitution’s Due Process Clause permits a jury to base that award in
30 part upon its desire to punish the defendant for harming persons who are not before
the court (e.g., victims whom the parties do not represent),” the United States
Supreme Court held that “such an award would amount to a taking of ‘property’
from the defendant without due process.” (emphasis in original). Specifically, the
United States Supreme Court in Williams made clear that although punitive
damages may be imposed to punish unlawful conduct and to deter its repetition,
id. at 349, “the Constitution’s Due Process Clause forbids a State to use a
punitive damages award to punish a defendant for injury that it inflicts upon
nonparties or those whom they directly represent, i.e., injury that it inflicts
upon those who are, essentially, strangers to the litigation.” Id. at 353 (emphasis
added); see also State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 420 (2003)
(noting that “[T]he Campbells demonstrated, through the testimony of State Farm
employees who had worked outside of Utah, and through expert testimony, that this
pattern of claims adjustment under the PP & R program was not a local anomaly,
but was a consistent, nationwide feature of State Farm’s business operations,
orchestrated from the highest levels of corporate management,” and condemning the
Campbells’ use of their case as a platform to expose and punish for alleged
deficiencies of State Farm’s operations throughout the country, rather than for its
conduct against the Campbells); Branham v. Ford Motor Co., 701 S.E.2d 5, 23-24
(S.C. 2010) (finding the most egregious error was “counsel’s request that the jury
31 punish Ford for harming others beyond [the plaintiff] . . . [b]y focusing on conduct,
as opposed to harm to Branham, the charge invited the jury to punish Ford for all
Bronco rollover deaths and injuries”); Durham v. Vinson, 602 S.E.2d 760, 767 (S.C.
2004) (reversing an award of punitive damages because the trial court allowed the
jury to punish the defendant for bad acts unrelated to the defendant’s actions toward
the plaintiff).
The arguments made by Plaintiffs’ counsel encouraging the jury to punish R.J.
Reynolds for the millions of people who are allegedly living with smoking-related
illnesses and for allegedly killing 450,000 Americans each year rather than
punishing R.J. Reynolds for its injury to Mr. Schleider and his surviving wife and
daughter was, therefore, improper, and the highly inflammatory mental images
Plaintiffs’ counsel beseeched the jury to envision—three airplanes filled with
passengers crashing each day for a year and the pain and suffering of the families
and the public at large resulting from viewing the carnage on television—therefore
violated both R.J. Reynolds’ constitutional right to due process and its right to a fair
trial. As the United States Supreme Court in Campbell recognized, to punish a
defendant (in a non-class action lawsuit) for the alleged injury to nonparties “creates
the possibility of multiple punitive damages awards for the same conduct; for in the
usual case nonparties are not bound by the judgment some other plaintiff obtains.”
Campbell, 538 U.S. at 423.
32 These highly improper inflammatory arguments were clearly, timely, and
repeatedly objected to by R.J. Reynolds’ counsel. However, the trial court, which
appeared focused on getting the case to the jury, as opposed to monitoring the
arguments of counsel and protecting the fairness of the proceedings, either overruled
R.J. Reynolds’ objections or, in some instances, completely ignored them and simply
thanked R.J. Reynolds’ counsel for his objection. We, therefore, review these
improper arguments under a harmless error standard of review. See Cardona v.
State, 185 So. 3d 514, 520 (Fla. 2016) (providing that “[w]here the comments were
improper and the defense objected, but the trial court erroneously overruled defense
counsel’s objection, [the appellate court] appl[ies] the harmless error standard of
review”); accord Diaz v. State, 139 So. 3d 431, 434 (Fla. 3d DCA 2014).
Under the harmless error analysis, the beneficiary of the error, which in this
case are the Plaintiffs, must prove that there is no reasonable possibility that the error
contributed to the verdict, and if the beneficiary fails to satisfy that burden, then the
error is harmful and a new trial is required. See Special v. W. Boca Med. Ctr., 160
So. 3d 1251, 1256 (Fla. 2014). The Plaintiffs have clearly failed to establish that the
cumulative effect of this objected-to highly inflammatory argument and the other
improper objected-to closing arguments was harmless in this case.
The Florida Supreme Court and this Court have repeatedly cautioned lawyers
and judges alike that closing arguments “must not be used to ‘inflame the minds and
33 passions of the jurors so that their verdict reflects an emotional response . . . rather
than the logical analysis of the evidence in light of the applicable law.” Murphy v.
Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Bertolotti v.
State, 476 So. 2D 130, 134 (Fla. 1985)); see also Garron v. State, 528 So. 2d 353,
359 (Fla. 1988) (noting that comments in closing arguments that inject elements of
emotion and fear into the jury’s deliberations go “far outside the scope of proper
argument”); Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (warning
that inflammatory and prejudicial comment “will not be condoned”).
The courts in this state have reversed jury verdicts based on inflammatory
closing arguments after performing a harmless error analysis, and they have even
reversed jury verdicts after performing a fundamental error analysis, requiring a
much higher burden. For example, in Walt Disney World Co. v. Blalock, 640 So.
2d 1156, 1158 (Fla. 5th DCA 1994), the Fifth District Court of Appeal concluded
that the plaintiff’s counsel’s inflammatory comments and personal opinions during
closing arguments, even though not objected to, constituted fundamental error
and deprived Walt Disney World of its right to a fair trial. In that case, a ten year
old boy was injured when he was riding as a passenger in a boat at the park and the
boat bumped into the side of another passenger boat, and the boy’s hand was
allegedly caught between the two boats and resulted in the amputation of his thumb.
The improper argument made by counsel for the plaintiff is as follows:
34 [Y]ou know, why don’t you consider the fact that maybe instead of Luke, a ten year old, that we have a three or four year old sitting in this seat and they had their little ears on, okay, that they bought at the Magic Kingdom and the ears fell off into the water and so they go to pick them up. . . . The boat, it takes their arm off or if they’re leaning over it smashes them in the head? . . . I mean, you know, but for the grace of God, you know, we’d have some other catastrophic circumstance . . . .
Blalock, 640 So. 2d at 1158.
In the instant case, R.J. Reynolds timely objected to the improper
inflammatory arguments. Thus, unlike the defendant in Blalock, which was required
to and did in fact demonstrate fundamental error, the burden is on the Plaintiffs in
this case to demonstrate that the error was harmless error. As will be discussed at
length under section II of this dissent, the Plaintiffs have failed to meet their burden
in this case due to the cumulative effect of multiple improper closing arguments and
the extremely high loss of consortium verdicts. The Plaintiffs’ counsel asked the
jury to award Mr. Schleider’s wife $11 million for her loss of consortium claim
against R.J. Reynolds, but the jury awarded her $15 million despite the very limited
evidence provided by the wife regarding her loss, and the jury awarded Mr.
Schleider’s non-dependent daughter an additional $6 million, an amount which our
sister courts have found to be excessive for a child who is not dependent on the
deceased parent for support or companionship.
The majority suggests that the reversal ordered in Blalock can be
distinguished from the improper arguments made by the Plaintiffs’ counsel in the
35 instant case. I respectfully disagree. In both cases, the closing arguments were
improper, inflammatory, and pervasive. My dissent relies on the reversal in Blalock
because a new trial was ordered despite the vastly different and the more difficult
burden that had to be met to obtain a reversal based on the improper closing
arguments. In Blalock, defense counsel failed to object to the improper arguments
made by the plaintiff’s counsel. Thus, instead of the plaintiff having the burden (as
it has in the instant case) to prove that the improper arguments did not contribute to
the verdict, the burden was on the defendant in Blalock, and the defendant was
required to demonstrate fundamental error. In other words, the burden shifted from
the plaintiff to the defendant in Blalock and the burden was a much higher burden.
In the instant case, R.J. Reynolds did object but the trial court overruled the
objections. Thus, the burden is on the Plaintiffs, not R.J. Reynolds, and the Plaintiffs
must prove that the error did not contribute to the verdict. Also, and importantly,
the verdicts in Blalock did not even approach the level of the awards in the instant
case. The jury in Blalock awarded a total of $881,895 in damages, and $279,200 of
that award was for future medical expenses. Here, the jury awarded Mr. Schleider’s
wife $15 million and his non-dependent daughter $6 million based solely on their
loss of consortium claims.
In State v. Jones, 558 S.E.2d 97, 99 (N.C. 2002), the Supreme Court of North
Carolina reversed a death sentence and remanded for a new sentencing hearing based
36 on the State’s improper closing arguments before a jury during the sentencing phase
of the trial. Over defense objection, the State improperly referred to the Oklahoma
City federal building bombing and the Columbine school shootings in what the court
concluded could not “be construed as anything but a thinly veiled attempt to appeal
to the jury’s emotions.” Id. at 107. The court found that the argument was improper
because: “(1) it referred to events and circumstances outside the record; (2) by
implication, it urged jurors to compare defendant’s acts with the infamous acts of
others; and (3) it attempted to lead jurors away from the evidence by appealing
instead to their sense of passion and prejudice.” Id. at 107.
Similarly, in the instant case, the Plaintiffs’ counsel’s closing argument
improperly referred to events and circumstances outside the record that were totally
irrelevant to the amount of damages suffered by the Plaintiffs in this case: the alleged
450,000 smoking-related deaths, the alleged 8.5 million smoking-related illnesses,
and the families’ grief and mourning in those cases as a result of those deaths and
illnesses. Rather than focusing on the evidence, these improper closing arguments
appealed to the jury’s sense of passion and prejudice, and instead of urging the jurors
to compare R.J. Reynolds’ acts with the acts of others as in Jones, the Plaintiffs’
counsel attempted to impute the damages allegedly suffered by millions of people to
the damages awardable in this individual case.
In evaluating whether the plaintiff’s improper closing argument required a
37 new trial, the Jones court concluded that “[t]he impact of the statements in
question, which conjure up images of disaster and tragedy of epic proportion,
is too grave to be easily removed from the jury’s consciousness, even if the trial
court had attempted to do so with instructions,” id. at 107 (emphasis added), and
therefore, reversed for a new sentencing proceeding.
In Samuels v. Torres, 29 So. 3d 1193, 1197 (Fla. 5th DCA 2010), the Fifth
District also reversed for a new trial based on the plaintiff’s counsel’s improper
arguments and based on a much higher burden of proof than the one in the instant
case. Because defense counsel failed to object to the improper arguments, the burden
shifted, as it did in Blalock, to the defendant to establish fundamental error. The
Fifth District concluded that fundamental error was established and ordered a new
trial stating that “counsel for Torres [had] employed a defense stratagem in his
opening statement to curry sympathy from the jury and it is obvious from this record
that he succeeded,” and “[a]s a result, Samuels was deprived of a fair trial.”
Similarly, in DeFreitas v. State, 701 So. 2d 593, 601 (Fla. 4th DCA 1997), the Fourth
District found that the prosecutor violated the rule against inflammatory argument
by comparing the misconduct of the defendant to the O.J. Simpson case, and held
that this improper argument, along with other improper arguments, constituted
fundamental error requiring a new trial.
In each of these cases, Blalock, Samuels, and DeFreitas, the appellate courts
38 concluded that the cumulative effect of the improper arguments required a new trial,
and in each of these cases the burden was a much higher burden than in the instant
case because in those cases, no objection was made, and thus the defendant was
required to establish, and did establish, that the error rose to the level of fundamental
error. In the instant case, the Plaintiffs, not the defendant, have the burden and their
burden is to establish that the cumulative effect of the improper arguments was
harmless. The Plaintiffs have not met that burden here based on the extremely high
loss of consortium damages the jury awarded to Mr. Schleider’s wife and non-
dependent daughter, which reflects that Plaintiffs’ counsel’s stratagem—to curry
sympathy from the jury—succeeded. Torres, 29 So. 3d at 1197.
Asking the jurors in the instant case to conjure up the image of three plane
crashes a day for a year, the yearly deaths of 450,000 Americans, an additional 8.5
million Americans who are suffering with smoking-related illnesses, and the
mourning of millions of American families, far surpasses the “tragedy of epic
proportion” improperly argued in Jones. And because the trial court overruled R.J.
Reynolds’ objections, the trial court telegraphed to the jurors that it was entirely
proper for them to consider these images and the total number of affected people
when determining the damages they could and should award in this case. I would,
therefore, reverse on this ground alone.
B. Attacks upon R.J. Reynolds and its counsel for their defense of the case
39 “The law is clear that it is improper for an attorney to disparage an opposing
party’s defense of a case or to suggest that a party should be punished for contesting
a claim.” Fasani v. Kowalski, 43 So. 3d 805, 809 (Fla. 3d DCA 2010). In fact,
“[t]he most grievous arguments” a plaintiff’s lawyer can make are those suggesting
that the defendant “acted improperly by defending [against the plaintiff’s] claims.”
Carnival Corp. v. Pajares, 972 So. 2d 973, 977 (Fla. 3d DCA 2007).
In the instant case, the Plaintiffs’ counsel attacked R.J. Reynolds for pursuing
a comparative fault defense by claiming that R.J. Reynolds’ defense was an improper
attack on “the victim” in an effort to blame “the victim” for the damages he suffered,
even though Mr. Schleider’s wife admitted on the stand that her husband bore some
responsibility for his injuries because he did not try hard enough to quit smoking.
The Plaintiffs’ counsel also disparaged R.J. Reynolds’ counsel and suggested that
they were participants in the tobacco industry’s conspiracy.
[Plaintiffs’ Counsel]: You know, it’s funny that they get up here and they….
[Plaintiffs’ Counsel]: She just got up here and she showed you all the scientists who did all this research, the 6,000 studies, and it’s amazing that they are still proud of it, that they are still bragging about all the research that all this money paid for when the judge is going to instruct you that the Engle trial, the CTR, funded that research and they were found liable for the fraud. So they still haven’t - -
[Defense Counsel]: Objection, misstating the instruction, your Honor.
40 [Plaintiffs’ Counsel]: Well, [the trial court] will read the instruction to you.
[The Court]: Okay, I already read that in jury instructions. Continue to finish up your closing.
[Plaintiffs’ Counsel]: You heard from Dr. Proctor about that research, what the dirty money was used for, how people didn’t know what it was being used for, the CTR, the TIRC, they were all in it together, they were all part of the fraud. So the fact that they’re still, still, to this day, trying to pretend like they - -
[Defense Counsel]: Objection, to characterizing our defense of the case, Your Honor.
[Plaintiffs’ Counsel]: Okay, I’ll move on.
[Defense Counsel]: Motion - -
[The Court]: Move on, Mr. Paige [Plaintiffs’ counsel].
This Court has repeatedly reversed judgments and remanded for new trials
based on arguments that denigrated the defense of a case or suggested that the
defendant had done something wrong by not admitting responsibility, presenting a
defense, or arguing comparative fault by the plaintiff. For example, in Pajares, this
Court reversed and remanded for a new trial based on plaintiff’s counsel’s improper
closing arguments, which included attacks upon Carnival for presenting evidence
that Pajares smoked, and asking the jury to consider Pajares’s smoking when
determining his comparative negligence, and suggesting that Carnival should be
punished for defending the claims against it and for failing to accept its responsibility
and the harm it had caused Pajares. Pajares, 972 So. 2d at 977-78.
41 This Court has also held that plaintiff’s counsel’s improper, inflammatory
remarks and personal attacks upon defense counsel required a new trial in Sanchez
v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007); State Farm Mut. Auto Ins. Co.
v. Revuelta, 901 So. 2d 377, 379-80 (Fla. 3d DCA 2005) (reversing a judgment in
favor of Revuelta where Revuelta’s counsel insinuated that State Farm had acted in
bad faith by defending the action, rather than simply paying the benefits); Carnival
Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989) (reversing
the judgment entered in favor of the plaintiffs and remanding for a new trial due to
comments made by the plaintiffs’ counsel disparaging the manner in which Carnival
defended the action).
This Court has not been alone in its conclusion that such objected-to
arguments are not harmless and require a new trial. See R.J. Reynolds Tobacco Co.
v. Odom, 210 So. 3d 696, 701-02 (Fla. 4th DCA 2016) (“In the tobacco context, we
have held that if preserved, comments disparaging a tobacco company for failing to
take responsibility warrant a new trial.”); Cohen v. Philip Morris U.S.A., Inc., 203
So. 3d 942, 948 (Fla. 4th DCA 2016) (finding that the trial court did not abuse its
discretion by granting a new trial based on objected-to closing comments by
plaintiff’s counsel concerning the tobacco company’s failure to take responsibility);
R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA 2016)
(finding that tobacco defendants’ preserved objections to plaintiff’s counsel’s
42 improper comment as to tobacco companies’ “alleged failure to accept
responsibility” mandated reversal); Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960-
61 (Fla. 4th DCA 2013) (reversing and remanding for a new trial where insured’s
counsel improperly urged the jury to punish Allstate for defending against its
insured’s claim); Intramed, Inc. v. Guider, 93 So. 3d 503, 506-07 (Fla. 4th DCA
2012) (reversing for a new trial based on plaintiff’s counsel’s arguments suggesting
that Intramed should be punished for failing to take responsibility, for failing to
apologize, and for defending the case).
In Calloway, the Fourth District Court of Appeal, sitting en banc, concluded
that the tobacco company defendants were entitled to a new trial based on plaintiff’s
counsel’s improper inflammatory closing arguments. Calloway, 201 So. 3d at 758-
59. The inflammatory arguments made by plaintiff’s counsel in that case centered
around the tobacco companies’ failure to take responsibility for their actions,
plaintiff’s counsel’s suggestion that the tobacco companies should be punished for
contesting damages at trial, and arguing that the tobacco companies’ defense of their
actions in court was improper. Id. at 759-61. The Fourth District noted that it had
previously found such arguments to be improper in Marotta, Guider, and Philip
Morris USA, Inc. v. Tullo, 121 So. 3d 595, 598 (Fla. 4th DCA 2013). In Marotta
and Guider, the Fourth District reversed and remanded for a new trial because the
objections to these arguments were preserved; however, it affirmed the judgment in
43 Tullo because the tobacco companies failed to object and the comments did not
constitute fundamental error under the four-part test established by the Florida
Supreme Court in Murphy. Calloway, 201 So. 3d at 760. The Fourth District also
found in Calloway, that, even though the trial court had sustained many of the
tobacco companies’ objections to these arguments and in some instances gave a
curative instruction, the trial court failed to adequately perform its duty to control
the behavior of plaintiff’s counsel and that the cumulative effect of the repeated
improprieties and sustained objections unduly prejudiced the jurors. Id. at 763-65.
In the instant case, the Plaintiffs’ counsel’s improper arguments were
exacerbated by the trial court’s failure to sustain R.J. Reynolds’ objections, thus
encouraging, rather than admonishing, the Plaintiffs’ counsel to continue to make
such arguments and telegraphing to the jury that these improper arguments should
be considered in reaching its verdict. If sustaining the objections and giving curative
instructions was insufficient to erase the taint of similar improper arguments in
Calloway, then clearly overruling and ignoring R.J. Reynolds’ objections in the
instant case require a new trial.
We should also reject, as the Fourth District Court of Appeal has rejected, the
assertion that such arguments are permissible because in addition to determining the
proper amount of compensation, the jury was asked to determine whether punitive
damages was warranted. See Cohen, 203 So. 3d at 942 (rejecting the argument that
44 even if such arguments could be considered relevant to the issue of punitive
damages, the arguments may have tainted the jury’s compensatory liability
determination). And, as will be discussed later in this dissent, the Plaintiffs have
failed to prove that there is no reasonable possibility that the trial court’s incorrect
overruling of R.J. Reynolds’ objections to the improper arguments by the Plaintiffs’
counsel (suggesting that R.J. Reynolds should be punished for defending the case,
failing to take responsibility, and for blaming Mr. Schleider for continuing to smoke
after he became aware of the danger to his health) did not contribute to the verdict.
Based on Pajares, Sanchez, Fasani, Revuelta, Rosania, Cohen, Odom,
Calloway, Marotta, and Guider, the Plaintiffs’ counsel’s arguments disparaging R.J.
Reynolds’ defense of the Plaintiffs’ claims and suggesting that R.J. Reynolds was
acting in bad faith for pursuing a comparative negligence defense based on Mr.
Schleider’s continued smoking after learning about its harmful effects was improper.
The trial court erred by overruling R.J. Reynolds’ objections to these improper
arguments and, as will be discussed later in this dissent, these arguments, coupled
with the improper inflammatory arguments and other improper arguments, deprived
R.J. Reynolds of its right to a fair trial, requiring a reversal for a new trial.
C. Comparing R.J. Reynolds’ “wealth” and “power” to that of Mr. Schleider
The courts in this state have long recognized that “jurors have a tendency to
favor the poor as against the rich and, if provoked by such inflammatory evidence,
45 the jury is likely to apply the deep pocket theory of liability.” Sossa ex rel. Sossa v.
Newman, 647 So. 2d 1018, 1019-20 (Fla. 4th DCA 1994); see also Revuelta, 901
So. 2d at 380 (recognizing that jurors may be influenced by evidence of a party’s
wealth).
Plaintiffs’ counsel, however, highlighted R.J. Reynolds’ and the tobacco
industry’s wealth and power in his closing arguments and asked the jury to compare
that power and wealth to Mr. Schleider who was just a “a gentleman who was
addicted to nicotine who tried as hard as he could to stop.”
[Plaintiffs’ Counsel]: And I just want to be clear, we’re talking about a gentleman who was addicted to nicotine who tried as hard as he could to stop, and we ask you to compare that to the actions of these corporations. You know, it’s not just R.J. Reynolds, it’s Brown & Williamson, American Tobacco, all their power, all their money. R.J. Reynolds’ counsel immediately objected and requested to approach the
bench to make a motion. At the sidebar conference, R.J. Reynolds’ counsel
articulated his objections and moved for a mistrial. R.J. Reynolds argued that
Plaintiffs’ counsel’s argument was in violation of R.J. Reynolds’ pre-trial motion
in limine, which was granted by the trial court, precluding the Plaintiffs’ counsel
from commenting on the wealth, resources, or financial being of the company, and
specifically noted that the argument was directed to and made in the context of
comparative fault. The trial court overruled the objection and told Plaintiffs’
counsel to rephrase the argument and to move on.
Plaintiffs’ counsel’s argument was clearly improper. The trial court erred by
46 denying R.J. Reynolds’ objection, and the cumulative effect of the Plaintiffs’
counsel’s improper arguments and the trial court’s overruling of each and every one
of R.J. Reynolds’ timely objections requires a new trial. The majority opinion has
not addressed this argument and has not considered its effect when combined with
the highly improper arguments already discussed in this dissent.
II. The Plaintiffs Did Not Establish That These Errors Were Harmless. Thus, a New Trial is Required
The trial court erred when it overruled and, in some cases, ignored, R.J.
Reynolds’ objections thereby improperly permitting Plaintiffs’ counsel to: (1)
make inflammatory arguments meant to appeal to the sympathy of the jurors and to
evoke an emotional response from them; (2) encourage the jury to punish R.J.
Reynolds for damages suffered by non-parties to the litigation; (3) attack R.J.
Reynolds and its counsel for their defense of the case and arguments regarding Mr.
Schleider’s comparative fault; and (4) ask the jurors to compare R.J. Reynolds’ and
the tobacco industry’s wealth and power to that of Mr. Schleider. Because R.J.
Reynolds timely objected, and its objections were overruled, the harmless error
standard of review applies. Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016); Diaz
v. State, 139 So. 3d 431, 434 (Fla. 3d DCA 2014).
Because the Plaintiffs were the beneficiary of these errors, the Plaintiffs must
establish that there is no reasonable possibility that their counsel’s improper
arguments contributed to the jury’s $21 million non-economic loss of
47 consortium damages verdict. See Special, 160 So. 3d at 1256. The Plaintiffs
clearly have not met that burden, and thus, a new trial is mandated.
The strongest indicator that the jury was influenced by the Plaintiffs’
counsel’s improper arguments is the extremely high non-economic damages
awarded by the jury to Mr. Schleider’s wife ($15 million) and Mr. Schleider’s non-
dependent daughter ($6 million). The $15 million award to Mr. Schleider’s wife is
$4.2 million more than the highest non-economic damages award ever
affirmed in a Florida wrongful death case involving the death of a spouse, and
was $4 million more than what the Plaintiffs’ counsel asked the jury to award Mrs.
Schleider. Further, the $6 million award for Mr. Schleider’s non-dependent
daughter far exceeds compensatory awards to children who are not living with their
deceased parent and who are financially independent.
A. The $15 million loss of consortium award to Mr. Schleider’s wife
The Plaintiffs have not been able to identify a single affirmed non-economic
award to a surviving spouse close to the $15 million award to Mr. Schleider’s wife.
The record does not establish any unique facts or circumstances in this case which
could possibly justify such a high award to Mrs. Schleider. The record reflects that
Mr. and Mrs. Schleider married in 1966; on December 13, 1996, Mr. Schleider was
diagnosed with having a metastasized small-cell cancer in his liver which had
probably originated in his lung; and six months after being diagnosed, Mr. Schleider
48 died. The record also reflects that in 1978 or 1979, while working as a carpenter,
Mr. Schleider fell from a roof, suffered debilitating fractures in both heels, and
injured his back, which resulted in a declaration that he was permanently disabled.
Thereafter, Mrs. Schleider supported the family while Mr. Schleider stayed home
and cared for their children.
Although it is clear that Mr. Schleider did an excellent job performing the
many tasks as a stay-at-home parent and was a loving husband and father, there is
very little evidence as to the pain and suffering he experienced following his
diagnosis and his death six months later. Further, there was little evidence as to the
emotional or physical pain Mrs. Schleider experienced during that six-month period
associated with her husband’s illness. In fact, the record reflects that prior to the
diagnosis in 1996, Mr. Schleider demonstrated no symptoms other than periodic
fatigue and that the only pain he was experiencing was the daily chronic pain due
to his disabling prior injuries. Further, the record does not reflect how involved
Mrs. Schleider was in her husband’s care or what that care involved. Mrs. Schleider
testified that hospice came to the house each day to assist with her husband’s care,
and that she did not accompany her husband for his doctors’ appointments.
Additionally, the only post-death evidence regarding Mrs. Schleider’s life since her
husband’s death in 1997 is that she has never remarried, she still lives in the Florida
Keys, she misses her husband, and she has travelled extensively around the world
49 with her friends.
This absence of evidence is important because spousal awards that were
much smaller than the $15 million award to Mrs. Schleider, but which the appellate
courts considered had reached the upper limit of a permissible award, were affirmed
based upon record evidence that demonstrated extraordinary suffering by the
surviving spouse. For example, in Philip Morris USA Inc. v. Cohen, 102 So. 3d 11,
19 (Fla. 4th DCA 2012),8 the Fourth District Court of Appeal found that, although
the $10 million compensatory damage award to Cohen’s surviving spouse was at
the outer limit of reasonableness for such a case, the record established an
evidentiary basis to justify the award. Specifically, the jury heard testimony about
what the couple’s life was like after Nathan’s diagnosis. The jury also learned that
Nathan’s wife tore both of her rotator cuffs while caring for Nathan and, although
her injuries were very painful and required surgery, Nathan’s wife testified that the
emotional injury she suffered during that time was worse than the physical pain she
had endured. Cohen, 102 So. 3d at 19.
The Fourth District noted that the evidence in Cohen regarding Nathan’s
8 This case should not be confused with Cohen v. Philip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016), which has been cited to earlier in this dissent and which was reversed based on improper closing arguments made by counsel for the plaintiff. In Cohen v. Philip Morris, the smoker was Helen Cohen. In Philip Morris v. Cohen, the smoker was Nathan Cohen. The two cases are unrelated, involved different plaintiffs, and the issues on appeal were completely different.
50 spouse’s pain and suffering was nearly identical to the evidence relied upon by the
First District in R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st
DCA 2012). Cohen, 102 So. 3d at 19. In Townsend, a divided panel affirmed a
$10.8 million compensatory damage award to the surviving spouse even though it
was the highest non-economic damage award affirmed for such damages in an
Engle-progeny case. The majority concluded that the record established an
evidentiary basis for the high award. Townsend, 90 So. 3d at 311-12. Mrs.
Townsend testified that she and her husband enjoyed a very close relationship
during their 39-year marriage and they were always together until her husband
became ill. Id. at 312. When he became ill, Mrs. Townsend was forced to remain
in Ocala to work to support the couple while Mr. Townsend received treatment and
underwent surgery related to his lung cancer in Chicago. Id. at 312. Mrs. Townsend
also described her husband’s suffering, how she cared for him as he lay dying during
the final six months of his life, and the acute impact this had and will continue to
have on her for the rest of her life. Id.
The panel in Townsend was, however, divided on the reasonableness of the
award. In his dissent, Judge Wetherell recognized that an award should only be
disturbed if it is “so inordinately large as obviously to exceed the maximum limit of
a reasonable range within which the jury may properly operate” but he concluded
that this standard was met in Townsend with its $10.8 million award to Mrs.
51 Townsend. Id. at 316-17 (Wetherell, J., dissenting in part) (internal citations
omitted). Judge Wetherell noted that the cases cited to by the plaintiff “in an attempt
to justify the excessive compensatory damage award in this case involved awards to
parents for the death of a child, which is a far more traumatic loss than the loss of a
spouse to lung cancer after a lifetime of smoking.” Id. at 317 (footnote omitted).
Judge Wetherell also stated that in Citrus County v. McQuillin, 840 So. 2d 343, 347
(Fla. 5th DCA 2003), the “Fifth District made a point of noting that the $4.4 million
non-economic damage award in that case (for a 7-year-old child who lost his mother
in a ‘horrific’ car accident) was ‘on the outer limit in size.’” Townsend, 90 So. 3d
at 317. Judge Wetherell was also convinced that the jury’s verdict was the product
of passion and prejudice based on the improper and inflammatory arguments made
by counsel for the plaintiff, but which were not preserved by objection or raised on
appeal, and posited that non-economic compensatory damages to a surviving spouse
similar to this case should be no higher than $5 million. Id. at 319.
Based on the affirmances of $10 million and $10.8 million compensatory
spousal damage awards in Cohen and Townsend, respectively, this Court affirmed a
$10 million compensatory spousal award in Lorillard Tobacco Co. v. Alexander, 123
So. 3d 67 (Fla. 3d DCA 2013). Alexander is distinguishable because, unlike the
instant case, in Alexander there were no improper closing arguments and Mrs.
Alexander described her pain and suffering as she “nursed, cared for, and watched
52 the love of her life become incontinent and unable to move or breathe.” Alexander,
123 So. 3d at 78.
The extremely high non-economic damages awards in these three cases are
clearly not the norm as reflected by the following non-exclusive list of recent
verdicts involving spousal awards for compensatory damages.
• Philip Morris USA Inc. v. Gore, No. 4D15-3892, 2018 WL 859058 (Fla. 4th DCA Feb. 14, 2014)—$2 million. • Philip Morris USA Inc. v. Boatright, 217 So. 3d 166 (Fla. 2d DCA 2017)—$2.5 million. • Philip Morris USA Inc. v. Barbose, 228 So. 3d 702 (Fla. 2d DCA 2017)—$10 million to estate consisting of wife and two children. • Philip Morris USA Inc. v. Marchese, 231 So. 3d 473 (Fla. 4th DCA 2017)—$1 million. • Gentile, Estate of v. Philip Morris USA Inc., 2017 WL 7518447 (Fla. 15th Cir. Ct., Oct. 10, 2017)—$7 million to estate consisting of spouse and adult children. • Sommers v. Philip Morris USA Inc., 2017 WL 3783048 (Fla. 11th Cir. Ct., June 17, 2017)—$1 million. • Whitmire v. R.J. Reynolds Tobacco Co., 2017 WL 5006528 (Fla. 2d Cir. Ct., March 28, 2017) $3 million to estate consisting of spouse and one adult son. • R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674 (Fla. 1st DCA 2017)—$16 million to estate consisting of spouse and son but reversed due to improper closing arguments. • Lawrence v. R.J. Reynolds Tobacco Co., 2017 WL 4416433 (Fla. 5th Cir. Ct., May 9, 2017)—$250,000. • Brown v. Phillip Morris, 2017 WL 2264504 (Fla. 6th Cir. Ct., March 1, 2017)—$1.8 million. • Lima v. R.J. Reynolds Tobacco Co., 2017 WL 2306252 (Fla. 13th Cir. Ct., April 20, 2017)—$3 million to estate consisting of spouse and four adult children. • Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115 (Fla. 4th DCA 2017)—$3 million but reversed due to improper introduction of evidence by plaintiff.
53 • R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017)—$3.5 million. • R.J. Reynolds Tobacco Co. v. Wilcox, 197 So. 3d 52 (Fla. 3d DCA 2016)—$7 million. • Ledo v. R.J. Reynolds Tobacco Co., 2016 WL 8467771 (Fla. 11th Cir. Ct., Nov. 2, 2016)—$6 million to estate consisting of spouse and one adult son. • Johnston v. R.J. Reynolds Tobacco Co., 2016 WL 8116092 (Fla. 12th Cir. Ct., Nov. 2, 2016)—$7.5 million. • Price v. R.J. Reynolds Tobacco Co., 2016 WL 6157876 (Fla. 4th Cir. Ct. Sept. 28, 2016)—$6.4 million. • Konzelman v. R.J. Reynolds Tobacco Co., 2016 WL 7337376 (Fla. 11th Cir. Ct. Oct. 24, 2016)—$8.5 million. • Cohen v. Phillip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016)—$2,055,050 million—but reversed based on improper closing arguments. • R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408 (Fla. 3d DCA 2016)—$5 million. • Varner v. R.J. Reynolds, 2016 WL 6839474 (Fla. 17th Cir. Ct. July 19, 2016)—$1.5 million. • McCabe v. R.J. Reynolds Tobacco Co., 2016 WL 5375150 (Fla. 13th Cir. Ct. May 19, 2016)—$5 million for spouse and four children. • Nally v. R.J. Reynolds Tobacco Co., 2016 WL 6839473 (Fla. 10th Cir. Ct. May 17, 2016)—$6 million. • R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53 (Fla. 4th DCA 2016)—$5.8 million but reversed based on improper closing argument. • Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016)—$2 million. • McCoy v. R.J. Reynolds Tobacco Co., 2015 WL 12844640 (Fla. 17th Cir. Ct. July 13, 2015)—$1.5 million for spouse and eight children. • R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015)—$10 million. • Hardin v. R.J. Reynolds Tobacco Co., 2015 WL 10015108 (Fla. 11th Cir. Ct. June 18, 2015)—$776,000. • R.J. Reynolds Tobacco Co. v. Ward, 141 So. 3d 236 (Fla. 1st DCA 2014)—$487,000. • Clayton v. R.J. Reynolds Tobacco Co., 2014 WL 8764384 (Fla. 4th Cir. Ct. March 17, 2014)—$550,000.
54 • Bowden v. R.J. Reynolds Tobacco Co., 2014 WL 8764383 (Fla. 4th Cir. Ct. March 26, 2014—$5 million. • Johnson v. R.J. Reynolds Tobacco Co., 2014 WL 3810357 Fla. Cir. 1st Ct. July 21, 2014)—$7.3 million for spouse and one child. • R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016)— $3 million. • Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th DCA 2013)—$4.5 million. • Loyd v. R.J. Reynolds Tobacco Co., 2013 WL 12110278 (Fla. 13th Cir. Ct. Feb. 11, 2013)—$3.120 million for spouse and three children. • Philip Morris USA, Inc. v. Allen, 116 So. 3d 467 (Fla. 1st DCA 2013)—$3 million. • R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013)—$4.83 million. • Skolnick v. R.J. Reynolds Tobacco Co., 2013 WL 6001152 (Fla. 15th Cir. Ct. June 19, 2013)—$2.5 million. • Sikes v. R.J. Reynolds Tobacco Co., 2012 WL 10702742 (Fla. 4th Cir. Ct. Sept. 20, 2012)—$2,165,722 million. • R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2011)—$5 million. • Mack v. R.J. Reynolds, 2011 WL 1562171 (Fla. 8th Cir. Ct. March 18, 2011)—$1 million. • R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th DCA 2011)—$1.2 million. Wife passed away before case proceeded to trial, $1,000,000 awarded to estate (two sons).
All of the cases cited above were tobacco cases, most included R.J. Reynolds
as a defendant, and similar evidence was presented. The only things “unique” about
the instant case are that, despite the jury’s finding that punitive damages were not
appropriate in this case, the jury awarded Mr. Schleider’s wife $15 million for her
loss of consortium claim, which was $4 million more than the $11 million Plaintiffs’
counsel asked the jury to award and is the highest award to a surviving spouse, and
the lack of evidence to support such a large loss of consortium spousal award. The
55 substantially higher jury award to Mr. Schleider’s wife, when compared with the
awards to surviving spouses for non-economic damages in similar tobacco wrongful
death cases demonstrate that the improper objected-to closing arguments made by
Plaintiffs’ counsel in the instant case is not harmless error—that there is no
reasonable possibility that the improper arguments contributed to the jury’s verdict.
B. The $6 million non-economic damages award to Mr. Schleider’s non- dependent daughter
Under Florida’s wrongful death statute, “[m]inor children of the decedent, and
all children of the decedent if there is no surviving spouse, 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. (2014). Section 768.18(2) defines a
minor child as a child under twenty-five years of age. Thus, although Mr. Schleider
was survived by his wife, his daughter, who was twenty-two years old at the time of
her father’s death, qualifies as a minor for purposes of the wrongful death statute,
and therefore, may seek an award of non-economic (loss of consortium) damages.
However, “[u]nder Florida law an award of non-economic damages must bear
a reasonable relation to the philosophy and general trend of prior decisions in such
cases.” Cohen, 102 So. 3d at 18 (quoting Bravo v. United States, 532 F.3d 1154,
1162 (11th Cir. 2008)). The jury awarded Mr. Schleider’s daughter, who was
twenty-two years old and not living with her parents or financially dependent on
them when Mr. Schleider died, $6 million. Although the issue addressed in this
56 dissent is the effect of the Plaintiffs’ counsel’s improper arguments on the jury, and
relies on the extremely high verdicts as evidence that the error was not harmless, we
note that our sister courts have found that awards which were in the range awarded
Mr. Schleider’s daughter, were excessive. For example, in R.J. Reynolds Tobacco
Co. v. Webb, 93 So. 3d 331, 338 (Fla. 1st DCA 2012), the First District Court of
Appeal reversed a $7.2 million non-economic damage award to an adult daughter as
excessive after failing to uncover a single case in which an adult child had received
a wrongful death award of that magnitude that had been affirmed on appeal and
finding that the record did not support such an award because Mr. Webb’s daughter
was not dependent on her father’s companionship, instruction, and guidance when
he died. Id. at 339.
The Fourth District Court of Appeal also reversed the $5 million non-
economic damages award to Mrs. Putney’s non-dependent children in Philip Morris
USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016). The Fourth District
concluded that although Mrs. Putney’s children were entitled to a consortium award,
$5 million was excessive when compared with similar cases and where none of the
children lived with or relied on Mrs. Putney for support. Putney, 199 So. 3d at 471;
see also MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129, 1136 (Fla. 3d DCA
2000) (reversing as excessive the jury’s $1 million non-economic damages awards
to each of the four children who were not residing with or financially dependent
57 upon their deceased father for support).
Although in these cases the issue was whether the loss of consortium awards
to the decedent’s children were excessive and thus requiring the issuance of a
remittitur, not whether the defendant was entitled to a new trial altogether due to the
plaintiff’s counsel’s improper arguments, they highlight and support the conclusion
that the Plaintiffs’ counsel’s improper arguments in this case were not harmless, as
the jury awarded Mr. Schleider’s non-dependent daughter $6 million, an amount
other courts have found to be excessive.
C. The trial court’s failure to sustain R.J. Reynolds’ objections is not harmless error
As previously stated, the Plaintiffs have the burden to prove that their
counsel’s highly inflammatory and other improper arguments to the jury did not
contribute to the verdict. Special, 160 So. 3d at 1256; see also Calloway, 201 So. 3d
at 761. In other words, the Plaintiffs must demonstrate that “there is no reasonable
possibility that the error contributed to the verdict.” Id.
After a review of the evidence presented in this case, which included that Mr.
Schleider’s pain and suffering extended over no more than a six-month period, and
a review of the loss of consortium verdicts sustained in similar tobacco-related cases,
it is impossible to conclude that there is no reasonable possibility that the cumulative
effect of the Plaintiffs’ counsel’s highly inflammatory and highly improper
arguments did not contribute to the loss of consortium awards to Mr. Schleider’s
58 wife and non-dependent daughter. The appellate courts of this state have reversed
and remanded for a new trial even where the improper arguments were less offensive
than the arguments made in this case.
In R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674, 683 (Fla. 4th DCA
2017), the Fourth District Court of Appeal concluded that plaintiff’s counsel’s
improper arguments and comments “clearly intended to stir the passions of the jury,”
and based on the high verdict awards, it was clear that counsel’s “misconduct had
its intended effect.” See also Harbor Ins. Co. v. Miller, 487 So. 2d 46, 47 (Fla. 3d
DCA 1986) (finding that the excessiveness of the award was evidence that the
prejudicial conduct complained of by the appellant influenced the trial); Christopher
v. Fla., 449 F.3d 1360, 1374 n.11 (11th Cir. 2006) (concluding that “the jury’s award
of excessive damages [was] proof that Plaintiff’s counsel’s misconduct probably
influenced the jury”).
A new trial is required in the instant case because the Plaintiffs’ counsel’s
improper closing arguments went unchecked and were enforced and aggravated by
the trial court, which either overruled R.J. Reynolds’ objections, merely thanked R.J.
Reynolds after R.J. Reynolds objected, asked Plaintiffs’ counsel to rephrase or move
on, and denied R.J. Reynolds’ numerous requests for a side bar. As the Fourth
District stated in Calloway, “the trial court’s duty was clear—to respond to such
behavior by curbing multiple instances of improper argument and ensuring that the
59 jury was not being led astray by repeated objectionable comments.” Calloway, 201
So. 3d at 763. “This is especially true in lengthy, high-stakes cases where a trial
court’s failure to control the litigants not only deprives the parties of a fair trial, but
can ultimately result in scarce judicial resources being consumed when the case is
remanded for re-trial based on those actions.” Id.
To reiterate, the cumulative effect of the following objected-to arguments
made by the Plaintiffs’ counsel requires a new trial because the Plaintiff has failed
to demonstrate that there is no reasonable possibility that they did not contribute to
the extremely high consortium verdicts in this case: (1) the highly inflammatory
arguments, wherein Plaintiffs’ counsel asked the jurors to picture watching an
airplane crash on CNN and focus on how bad they would feel for the families of the
dead, how they would “mourn” with the families, and how “horrible” it would be,
and then to multiply that horror by three plane crashes a day for a year, which would
result in the deaths of 450,000 Americans; (2) Plaintiffs’ counsel’s attacks upon R.J.
Reynolds and its counsel for defending the case and presenting evidence of Mr.
Schleider’s comparative fault; and (3) Plaintiffs’ counsel’s arguments comparing
R.J. Reynolds’ “power and wealth” to that of Mr. Schleider. To find that these
multiple improper arguments are harmless error, “encourages ‘Rambo’ litigators,
intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate
courts.” Calloway, 201 So. 3d at 764. Asking the jury to picture watching television
60 reporting of a plane crash and to envision the mourning families and their “horrible
loss” and then to multiply that vivid image and loss by three plane crashes a day for
a year in order to grasp the sheer magnitude of the harm caused by R.J. Reynolds,
can never be harmless error. Moreover, the extremely high verdicts in this case
demonstrate that the trial court’s error by not sustaining R.J. Reynolds’ repeated
objections and allowing the jury to consider the Plaintiffs’ counsel’s improper
arguments had a highly prejudicial effect on the jury.
III. The Denial of R.J. Reynolds’ Motion For Remittitur
The remittitur analysis differs from the analysis performed when evaluating
whether to grant a new trial based on improper closing arguments. When a party
moves for a new trial based on improper arguments made by opposing counsel, the
opposing party has the burden of demonstrating that there is no reasonable
possibility that the improper arguments did not contribute to the verdict. This is a
very high burden, and a burden that was clearly not met in this case. On the other
hand, section 768.74, Florida Statutes (2014), requires a completely different
analysis. Section 768.74 sets forth a list of factors a trial court is required to consider
when determining whether an award is excessive or inadequate. A trial court’s
ruling on a motion for remittitur is reviewed for an abuse of discretion. Engle v.
Liggett Grp., Inc., 945 So. 2d 1246, 1263 (Fla. 2006).
The majority has provided the factors listed in section 768.74, so they will not
61 be repeated here. Importantly, the effect of highly inflammatory and other improper
arguments upon the trier of fact is not among those factors because, when it cannot
be said that there is no reasonable possibility that the improper argument did not
contribute to the verdict, the law holds that the right to a fair trial was denied and a
new trial, not a reduction of the damages, is mandated.
Although a good case can be made here to support a finding that the trial court
abused its discretion by failing to apply a remittitur to the loss of consortium awards,
such an analysis is unnecessary based on my position that a new trial is mandated
because the Plaintiffs have failed to demonstrate that their counsel’s highly
inflammatory and improper arguments did not contribute to the verdict.
Conclusion
In many cases preceding this one, the appellate courts in this state have warned
against the use of inflammatory arguments designed to invoke the jury’s sympathy
and/or anger, attacks upon the defendant or defense counsel for defending the case,
and comparing the wealth and power of the defendant with that of the plaintiff. The
appellate courts have reversed verdicts where these warnings have gone unheeded
and where the plaintiff has not proven that there was no reasonable possibility that
counsel’s improper arguments did not contribute to the jury’s verdict. Here, the
Plaintiffs have not met that burden. R.J. Reynolds timely and repeatedly objected,
but the trial court either overruled the objections or simply told Plaintiffs’ counsel
62 to move on, thereby permitting the jury to consider these highly prejudicial
arguments in reaching its verdicts, which are abnormally high under both a historical
and a record analysis.
If appellate court warnings are to have any meaningful effect and if fairness
and confidence in the judicial system are to be preserved, this case must be reversed
for a new trial free of such error.
Accordingly, I respectfully dissent.
Related
Cite This Page — Counsel Stack
273 So. 3d 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rj-reynolds-tobacco-co-v-diane-schleider-etc-fladistctapp-2018.