102 F.Supp.3d 1281 (M.D.Fla. 2015), 3:09-CV-13250, Starbuck v. R.J. Reynolds Tobacco Co.

Docket Nº3:09-CV-13250
Citation102 F.Supp.3d 1281, 91 Fed.R.Serv.3d 937
Opinion JudgeMARK W. BENNETT, UNITED STATES DISTRICT JUDGE.
Party NameWILLIAM STARBUCK, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, Individually and as Successor By Merger to the BROWN & WILLIAMSON TOBACCO CORPORATION, and PHILIP MORRIS USA INC., Defendants
AttorneyNo. 3:09-CV-13250 For William Starbuck, Plaintiff: Charlie Easa Farah, Jr., LEAD ATTORNEY, Farah & Farah, PA, Jacksonville, FL; Donald A. Migliori, Frederick C Baker, James W. Ledlie, Lance V. Oliver, Lisa M. Saltzburg, Nathan D. Finch, Rebecca M. Deupree, LEAD ATTORNEYS, PRO HAC VICE, Motley Ric...
Case DateMay 04, 2015
CourtUnited States District Courts, 11th Circuit, Middle District of Florida

Page 1281

102 F.Supp.3d 1281 (M.D.Fla. 2015)

91 Fed.R.Serv.3d 937

WILLIAM STARBUCK, Plaintiff,

v.

R.J. REYNOLDS TOBACCO COMPANY, Individually and as Successor By Merger to the BROWN & WILLIAMSON TOBACCO CORPORATION, and PHILIP MORRIS USA INC., Defendants

No. 3:09-CV-13250

United States District Court, M.D. Florida, Jacksonville Division

May 4, 2015

Page 1282

For William Starbuck, Plaintiff: Charlie Easa Farah, Jr., LEAD ATTORNEY, Farah & Farah, PA, Jacksonville, FL; Donald A. Migliori, Frederick C Baker, James W. Ledlie, Lance V. Oliver, Lisa M. Saltzburg, Nathan D. Finch, Rebecca M. Deupree, LEAD ATTORNEYS, PRO HAC VICE, Motley Rice, LLC, Mount Pleasant, SC; Elizabeth J. Cabraser, Jerome Mayer-Cantu, Martin D. Quinones, Richard M. Heimann, Todd A. Walburg, LEAD ATTORNEYS, Robert J. Nelson, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA; Elizabeth S. Smith, Joseph F. Rice, Robert T. Haefele, Vincent I. Parrett, LEAD ATTORNEYS, Motley Rice, LLC, Mount Pleasant, SC; Janna B. McNicholas, Norwood Sherman Wilner, Richard J. Lantinberg, Stephanie J. Hartley, LEAD ATTORNEYS, The Wilner Firm, PA, Jacksonville, FL; John T. Spragens, Kathryn E. Barnett, Kenneth S. Byrd, LEAD ATTORNEYS, PRO HAC VICE, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN; Jordan Elias, Sarah R. London, LEAD ATTORNEYS, PRO HAC VICE, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA; Mathew Jasinski, Michael J. Pendell, LEAD ATTORNEYS, Motley Rice, LLC, Hartford, CT.

For R.J. Reynolds Tobacco Company, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant: Dana G. Bradford, II, LEAD A TTORNEY, Smith, Gambrell & Russell, LLP, Jacksonville, FL; David M. Monde, LEAD ATTORNEY, PRO HAC VICE, John Fachet Yarber, Jones Day, Atlanta, GA; David Clifford Reeves, Jeffrey Alan Yarbrough, Joseph W. Prichard, Jr., Robert B. Parrish, LEAD ATTORNEYS, Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, FL; Edward M. Carter, LEAD ATTORNEY, Jones Day, Columbus, OH; Emily Baker, LEAD ATTORNEY, Jones Day, Atlanta, GA; James B. Murphy, Jr., Terri L. Parker, LEAD ATTORNEYS, Shook, Hardy & Bacon, LLP, Tampa, FL; Jose A. Isasi, II, LEAD ATTORNEY, PRO HAC VICE, Jones Day, Chicago, IL; Joshua Reuben Brown, LEAD ATTORNEY, Greenberg Traurig, LLP, Orlando, FL; Kevin P. Riddles, LEAD ATTORNEY, PRO HAC VICE, Jones Day, Cleveland, OH; Stephanie E. Parker, LEAD ATTORNEY, Jones Day, Atlanta, GA; Khalil Gharbieh, Arnold & Porter, LLP, Washington, DC.

For Philip Morris USA, Inc., Defendant: Alexandra Bach Lagos, Eileen Tilghman Moss, Hassia T. Ibrahim Diolombi, William P. Geraghty, LEAD ATTORNEYS, Shook, Hardy & Bacon, LLP, Miami, FL; Andrew Chang, Tiffany F. Lim, LEAD ATTORNEYS, PRO HAC VICES, Shook, Hardy & Bacon, LLP, San Francisco, CA; Bonnie C. Daboll, James B. Murphy, Jr., Terri L. Parker, LEAD ATTORNEYS, Shook, Hardy & Bacon, LLP, Tampa, FL; Dale M. Johnson, II, Stanley D. Davis, LEAD ATTORNEYS, Shook, Hardy & Bacon, LLP, Kansas City, MO; Dana G. Bradford, II, LEAD ATTORNEY, Smith, Gambrell & Russell, LLP, Jacksonville, FL; Geoffrey Jonathan Michael, LEAD ATTORNEY, Arnold & Porter, LLP, Andrew W. Beyer, Brittany E. Hamelers, Khalil Gharbieh, M. Sean Laane, Washington, DC; Joshua Reuben Brown, LEAD ATTORNEY, Greenberg Traurig, LLP, Orlando, FL; Judith Bernstein-Gaeta, LEAD ATTORNEY, PRO HAC VICE, Arnold & Porter, LLP, Washington, DC; Keri L. Arnold, LEAD ATTORNEY, Arnold & Porter, LLP, New York, NY; Nathan D. Foster, LEAD ATTORNEY, PRO HAC VICE, Arnold & Porter, LLP, Denver, CO; Peter M. Henk, LEAD ATTORNEY, Shook, Hardy & Bacon, LLP, Houston, TX.

For Liggett Group, LLC, Defendant: Giselle Gonzalez Manseur, Kelly Anne Luther, Maria Helena Ruiz, LEAD ATTORNEYS, Kasowitz, Benson, Torres & Friedman, LLP, Miami, FL.

For Vector Group, Ltd., Inc., Defendant: Kelly Anne Luther, Maria Helena Ruiz, LEAD ATTORNEYS, Kasowitz, Benson, Torres & Friedman, LLP, Miami, FL.

Page 1283

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S MOTION FOR NEW TRIAL AND DEFENDANTS' MOTION FOR ATTORNEYS' FEES AND COSTS

MARK W. BENNETT, UNITED STATES DISTRICT JUDGE.

TABLE OF CONTENTS

II. INTRODUCTION
A. Procedural Background
B. Factual Background
1. Evolution of the jury instruction on " addiction"
2. Evidence on " addiction"
3. Juror access to dictionary definitions of " addiction"
II. LEGAL ANALYSIS
A. Starbuck's Motion For New Trial
1. Overview of grounds for a new trial
2. Juror misconduct
a. Arguments of the parties
b. The need for an evidentiary hearing
c. The merits of the contention
2
i. Applicable standards
ii. Analysis
3. Verdict against the great weight of the evidence
a. Arguments of the parties
b. Applicable standards
c. Analysis
4. Improper jury instruction on " addiction"
a. Arguments of the parties
b. Analysis
5. Summary
B. The Defendants' Motion For Attorneys' Fees And Costs
III. CONCLUSION
APPENDIX: VERDICT FORM
Is the plaintiff smoker in this " Engle progeny" case1 against cigarette makers entitled to a new trial where the jury Page 1284 answered " no" to the initial question of whether he was addicted to cigarettes containing nicotine on or before November 21, 1996, thus ending their deliberations? The plaintiff contends that he is entitled to a new trial, because the jurors were exposed to extrinsic evidence, in the form of dictionary definitions of " addiction" ; because the jury's verdict was against the great weight of the evidence; and because my addition of a timeframe for his addiction in the jury instructions heightened his burden and likely confused the jury. The defendant cigarette makers deny that the plaintiff is entitled to a new trial on any of these grounds. They also seek an award of attorneys' fees and costs as prevailing parties and pursuant to a Florida offer-of-judgment statute. This jury trial, really a courtroom battle extraordinaire, was exceptionally hard fought by extremely talented, industrious, skilled, and zealous trial lawyers for the plaintiff and the two tobacco company defendants. Many hundreds, if not thousands, of objections were lodged, primarily by the two tobacco companies, throughout the trial. Double-digit mistrial motions were made by the defense during the trial, and motions and other filings by the defendants were made virtually around the clock, with voluminous filings every evening after mere mortals went to sleep. This is partially explained by the high stakes in the case, as well as the thousands of other tobacco cases pending in the federal and state courts of Florida, and by the plethora of legal issues not yet resolved by appellate courts. I. INTRODUCTION A. Procedural Background I was designated as a visiting judge for the December 2014 retrial of this " Engle progeny case," after a mistrial was declared in the first trial, in the early summer of 2014, because the jury could not reach a verdict. At trial, plaintiff William Starbuck sought damages for his lung cancer from defendants R.J. Reynolds Tobacco Company (RJR), individually and as successor by merger to The Brown & Williamson Tobacco Corporation, and Philip Morris USA Inc. (PM USA). Starbuck asserted two " product liability" claims: " negligence" and " strict liability" ; and two " fraud" claims: " fraudulent concealment" and " conspiracy to fraudulently conceal." RJR and PM USA denied Starbuck's claims and asserted, as a specific defense to his " product liability" claims, that Starbuck was at fault and, thus, responsible for his injury. The retrial was scheduled for December 1, 2014, and was to be bifurcated. In Phase 1, the jurors would hear evidence and decide whether or not Starbuck had proved his claims for damages, and, if so, what compensatory damages, if any, to award him. Also, if Starbuck had proved one or both of his " fraud" claims, the jurors would also decide whether punitive damages were justified on those claims. If the jurors decided that punitive damages were justified, then, in Phase 2, the parties would present additional evidence, and the jurors would decide what amount of punitive damages, if any, to award Starbuck. The trial began on December 1, 2014, with jury selection. See Trial Minutes (Day 1) (docket no. 179), and continued with the presentation of evidence on December 2, 3, 5, and 8-12, 2014. The case was submitted to the jury on December 15, 2014, and the jury returned a defense verdict the following day, December 16, 2014. Trial Minutes (Day 11) (docket no. 226). Specifically, the jurors answered " no" to the initial question of whether Starbuck was addicted to cigarettes containing nicotine on or before November 21, 1996, thus ending their deliberations. See Verdict Form (docket no. 228). A blank copy of Page 1285 the Verdict Form is attached to this decision as an appendix. By Order (docket no. 255), filed January 22, 2015, I denied as moot the defendants' December 12, 2014, Motion For Judgment As A Matter Of Law On Plaintiff's Fraudulent Concealment And Conspiracy Claims (docket no. 210) and the defendants' December 12, 2014, Motion For Judgment As A Matter Of Law [On All Claims] (docket no. 211). In that Order, I also denied, on the merits, Starbuck's December 30, 2014, Motion To Permit Juror...

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3 practice notes
  • R.J. Reynolds Tobacco Co. v. Schlefstein, 082819 FLCA4, 4D18-1150
    • United States
    • Florida Florida Court of Appeals Fourth District
    • August 28, 2019
    ...were aware of the dangers of doing so." Collar, 222 So.3d at 583 (quoting Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015)). Plaintiff's argument that "choice" is irrelevant is meritless in light of this "inte......
  • 284 So.3d 584 (Fla.App. 4 Dist. 2019), 4D18-1150, R.J. Reynolds Tobacco Co. v. Schlefstein
    • United States
    • Florida Florida Court of Appeals Fourth District
    • August 28, 2019
    ...were aware of the dangers of doing so." Collar, 222 So.3d at 583 (quoting Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015)). Plaintiff’s argument that "choice" is irrelevant is meritless in light of this "inte......
  • 222 So.3d 581 (Fla.App. 4 Dist. 2017), 4D15-3893, Collar v. R.J. Reynolds Tobacco Co.
    • United States
    • Florida Florida Court of Appeals
    • July 5, 2017
    ...their liking to smoke, even if they were aware of the dangers of doing so." Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015). The federal court rejected the defendants' attempt to generate a factual dispute regarding the definiti......
3 cases
  • R.J. Reynolds Tobacco Co. v. Schlefstein, 082819 FLCA4, 4D18-1150
    • United States
    • Florida Florida Court of Appeals Fourth District
    • August 28, 2019
    ...were aware of the dangers of doing so." Collar, 222 So.3d at 583 (quoting Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015)). Plaintiff's argument that "choice" is irrelevant is meritless in light of this "inte......
  • 284 So.3d 584 (Fla.App. 4 Dist. 2019), 4D18-1150, R.J. Reynolds Tobacco Co. v. Schlefstein
    • United States
    • Florida Florida Court of Appeals Fourth District
    • August 28, 2019
    ...were aware of the dangers of doing so." Collar, 222 So.3d at 583 (quoting Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015)). Plaintiff’s argument that "choice" is irrelevant is meritless in light of this "inte......
  • 222 So.3d 581 (Fla.App. 4 Dist. 2017), 4D15-3893, Collar v. R.J. Reynolds Tobacco Co.
    • United States
    • Florida Florida Court of Appeals
    • July 5, 2017
    ...their liking to smoke, even if they were aware of the dangers of doing so." Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015). The federal court rejected the defendants' attempt to generate a factual dispute regarding the definiti......