Frogel v. Philip Morris USA, Inc.

• Decision Date: 28 October 2020
• Docket Number: No. 4D19-2781,4D19-2781
• Citation: 305 So.3d 793
• Parties: Shan FROGEL, as personal representative of the Estate of Bette J. Cash, Appellant, v. PHILIP MORRIS USA, INC., Appellee.
• Court: Florida District Court of Appeals

305 So.3d 793

Shan FROGEL, as personal representative of the Estate of Bette J. Cash, Appellant,

v.PHILIP MORRIS USA, INC., Appellee.

No. 4D19-2781

District Court of Appeal of Florida, Fourth District.

October 28, 2020

David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, Randy Rosenblum of Dolan | Dobrinsky | Rosenblum, Miami, and Gary M. Paige, Robert E. Gordon, and Cassandra Lombard of Gordon & Partners, Davie, for appellant.

David M. Menichetti and Geoffrey J. Michael of Arnold & Porter Kaye Scholer, LLP, Washington, D.C., and Geri E. Howell of Shook, Hardy & Bacon, LLP, Miami, for appellee.

Levine, C.J.

In this Engle progeny case, 189 prospective jurors were available at trial, but the courtroom had a maximum capacity of 100. As part of an effort to winnow down the jury pool, the trial court granted Philip Morris's request to dismiss eight prospective jurors, over appellant's objection, based entirely on the written answers in their questionnaires. Philip Morris argued that the prospective jurors could not be rehabilitated based on their answers in the written questionnaires.

Appellant appeals the final judgment and claims several errors, including the fact that the trial court released prospective jurors without allowing appellant to orally question the released prospective jurors. We agree that the trial court erred in releasing the jurors without allowing appellant to question them. This is especially true since the record did not establish that it was "conclusively clear" that the released prospective jurors could not be impartial.

Thus, we reverse the final judgment and reaffirm that the "right of the parties to conduct a reasonable examination of each juror orally must be preserved." Fla. R. Civ. P. 1.431(b). Since this case may be subject to retrial, we also write on other remaining issues for guidance to the trial court on remand. Finally, we affirm Philip Morris's cross-appeal without further comment.

The decedent, a lifelong smoker, died from lung cancer

and COPD. Her son, as personal representative of her estate, sued Philip Morris for wrongful death. Before trial, the trial court granted Philip Morris's motion to use a questionnaire to assist in voir dire. After the trial court dismissed jurors based on hardship, approximately 189 prospective jurors remained. The trial court expressed concern because the courtroom had a maximum capacity of 100. The trial court directed the parties to come to an agreement on which prospective jurors to release based on their completed questionnaires. The parties were unable to reach an agreement.

The trial court decided to go through the list of jurors each side sought to exclude. Philip Morris sought to exclude multiple jurors, including eight jurors based on their written responses to question 31. Question 31 asked:

Have you heard, or read, or followed any media reports (including television, radio, magazine, or newspapers), advertisements, or social media concerning litigation or other actions taken against the tobacco industry and/or cigarette, or anything related to tobacco industry conduct?

The eight jurors at issue gave the following written responses:

• Juror 2,1: "I'm a smoker. I think Tobacco Industry is helping to keep my addiction."

• Juror 2,3: "Vague statements in media about cigarette companies and their audience. I feel cigarette companies have been predatory."

• Juror 3,9: "They don't tell the truth, even under oath & CEO's too."

• Juror 4,6: "Big tobacco knows they are selling products that kill and as pressure mounts in the US against them they ramp up selling to the third world."

• Juror 5,8: "I believe the tobacco companies knew the dangers of what smoking could do to people and felt money + profit were more important."

• Juror 9,9: "I do not like anything related to tobacco due to the fact that I believe my family/me died or got ill due to tobacco. I read on social media and newspapers as well as watched news stories."

• Juror 10,4: "I remember reading an article on abolishing smoking. I agree, as the tobacco industry has taken advantage of the public for profit. Their product is life-threatening and causes more harm."

• Juror 13,9: "I personally feel cigarettes should be outlawed. Children are getting addicted. I was personally affected from my stepdad's smoke."

Appellant objected to the dismissal of the eight jurors based solely on their written responses, arguing that he was entitled to orally question them under Irimi v. R.J. Reynolds Tobacco Co. , 234 So. 3d 789 (Fla. 4th DCA 2018). The trial court agreed with Philip Morris that dismissal was warranted as to those jurors because their written responses demonstrated that they could not be rehabilitated. Before the jury was sworn, appellant renewed his objection and moved to strike the panel.

The jury returned a verdict finding the decedent 80% at fault and Philip Morris 20% at fault. The jury awarded $50,000 to appellant. Based on the parties’ joint pre-trial stipulation which capped any comparative fault finding against the decedent at 50%, the trial court entered a judgment in the amount of $25,000.

Appellant moved for a new trial, arguing, inter alia, that the trial court erred in denying him the right to question prospective jurors. The trial court denied the motion. This appeal and cross-appeal follow.

Normally the standard of review for excusing a juror for cause is subject to the abuse of discretion standard of review, since the trial court has the ability to observe and evaluate the prospective jurors’ demeanor and credibility. Castro v. State , 644 So. 2d 987, 990 (Fla. 1994). However, in the present case, the trial court does not have a superior vantage point from the appellate court. "Where a trial court's ruling is based entirely on written evidence, the appellate court is in the same position as the trial court in weighing the evidence." Holmes v. Bridgestone/Firestone, Inc. , 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005). We find that we are in the same position as the trial judge. Walton v. Estate of Walton , 601 So. 2d 1266, 1268 (Fla. 3d DCA 1992) ("The rule has long been established that where a trial judge bases his final order on the transcribed testimony of witnesses, the appellate court is in the same position in examining the testimony as is the trial judge.").

Thus, we can use the de novo standard of review as to the review of the juror questionnaires. Further, the "failure to allow counsel to inquire into a prospective juror's potential biases amounts to an abuse of discretion warranting reversal unless it becomes ‘conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant.’ " Irimi , 234 So. 3d at 796 (quoting Melendez v. State , 700 So. 2d 791, 792 (Fla. 4th DCA 1997) ).

The Florida Constitution guarantees civil litigants the right of trial by an impartial jury. See Art. I, § 22, Fla. Const. ("The right of trial by jury shall be secure to all and remain inviolate."). "The purpose of voir dire is to obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice." Hoskins v. State , 965 So. 2d 1, 13 (Fla. 2007) (citation and quotation marks omitted). "A reasonable voir dire examination assists the parties in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge." Sisto v. Aetna Cas. & Sur. Co. , 689 So. 2d 438, 440 (Fla. 4th DCA 1997).

In analyzing a jury selection issue, the principles set forth in criminal cases are equally applicable to civil cases. See Carver v. Niedermayer , 920 So. 2d 123, 124 (Fla. 4th DCA 2006). "Florida law allows the rehabilitation of jurors whose responses in voir dire raise concerns about their impartiality." Juede v. State , 837 So. 2d 1114, 1115 (Fla. 4th DCA 2003). "A juror who initially expresses bias may be rehabilitated during the course of questioning."

Disla v. Blanco , 129 So. 3d 398, 401 (Fla. 4th DCA 2013) (citation omitted). A court looks at the entirety of a juror's voir dire to determine if a juror has dispelled all reasonable doubts about impartiality. Id. "When a trial court is deciding whether to excuse a juror for bias, ‘[t]he test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.’ " Irimi , 234 So. 3d at 795 (quoting Matarranz v. State , 133 So. 3d 473, 489 (Fla. 2013) ). "A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial." Id. (quoting Jackson v. State , 213 So. 3d 754, 770 (Fla. 2017) ).

A questionnaire may be used "[t]o assist in voir dire examination." Fla. R. Civ. P. 1.431(a)(2). Still, a juror questionnaire is to assist in the voir dire, not be a substitute for oral examination. "The right to ask potential jurors questions during voir dire about bias remains one of the most important, and often overlooked, protections against jury discrimination." Irimi , 234 So. 3d at 790 (citation omitted). See also Ritter v. Jimenez , 343 So. 2d 659, 661 (Fla. 3d DCA 1977) ("[T]he law grants to the respective parties the right, either personally or through their attorneys, to orally examine jurors on voir dire.").

The trial court excused eight prospective jurors without allowing appellant the opportunity to conduct voir dire examination. The trial court relied exclusively on the questionnaires filled out by the prospective jurors to determine if it was "conclusively clear" that the jurors could not serve as impartial jurors in this trial. In an attempt to lower the number of prospective jurors from 189 to the 100 seats in the courtroom, the parties agreed to see if there were any jurors they could both agree to excuse. In fact, both parties agreed to excuse some jurors from the trial. However, there were eight jurors that appellant objected to excusing without giving appellant the...