R. J. Reynolds Tobacco Co. v. Robinson, 022417 FLCA1, 1D15-0989

Court:Florida Court of Appeals
Attorney:Charles R.A. Morse, Jones Day, Washington, D.C.; Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola; Jonathon A. Fligg and Christine Lawson of Womble, Carlyle, Sandridge & Rice, Atlanta, GA; Geoffrey K. Beach and Randal S. Baringer of Womble, Carlyle, Sandridge & ...
Judge Panel:BL THOMAS and JAY, JJ, CONCUR
Opinion Judge:WINOKUR, J.
Party Name:R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. CYNTHIA ROBINSON, as Personal Representative of the Estate of MICHAEL JOHNSON, SR., deceased, Appellee.
Case Date:February 24, 2017
Docket Nº:1D15-0989
 
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R. J. REYNOLDS TOBACCO COMPANY, Appellant,

v.

CYNTHIA ROBINSON, as Personal Representative of the Estate of MICHAEL JOHNSON, SR., deceased, Appellee.

No. 1D15-0989

Florida Court of Appeals, First District

February 24, 2017

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Escambia County. Terry D. Terrell, Judge.

          Charles R.A. Morse, Jones Day, Washington, D.C.; Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola; Jonathon A. Fligg and Christine Lawson of Womble, Carlyle, Sandridge & Rice, Atlanta, GA; Geoffrey K. Beach and Randal S. Baringer of Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for Appellant.

          David J. Sales of David J. Sales, P.A., Jupiter; Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens; Howard M. Acosta of the Law Office of Howard M. Acosta, St. Petersburg; Willie E. Gary of Gary, Williams, Parenti, Watson & Gary, P.L., Stuart, for Appellee.

          WINOKUR, J.

         This case concerns the boundaries of proper closing argument. Plaintiff's counsel crossed those boundaries repeatedly, flagrantly, and often in defiance of the trial court's admonishments. The depth and pervasiveness of these improper arguments compel reversal of this case for new trial.1

         I.

         Cynthia Robinson, as Personal Representative of the Estate of Michael Johnson, Sr., brought action against R.J. Reynolds Tobacco Company ("Reynolds"), seeking damages on the ground that Johnson's death was the result of lung cancer caused by addiction to cigarettes manufactured and distributed by Reynolds. Before trial, Reynolds filed a motion in limine seeking to preclude argument or comment disparaging Reynolds for defending itself or failing to "take responsibility" or "apologize" to the plaintiff. The trial court granted Reynolds' motion in limine in part, ordering counsel for Robinson not to "disparage Reynolds for defending itself in litigation" nor to "suggest that Reynolds should apologize to Plaintiff."

         The trial consisted of two phases. Lasting approximately three weeks, Phase I encompassed issues of Engle2 class membership, liability, comparative fault, compensatory damages, and entitlement to punitive damages. Closing arguments ran three hours per side.

         Beginning with a parable about a man named "Lie" who dressed himself in clothing stolen from a man named "Truth, " Robinson's counsel used closing argument to characterize Reynolds' defense as a scheme to deceive the jury, repeatedly comparing the company to a "drowning swimmer" willing to lie, cheat, and deceive to save itself. Robinson raised questions throughout closing argument about Reynolds' failure to "accept responsibility, " at one point claiming that Reynolds was employing a strategy of deception modeled after the banking industry and suggesting one of Reynolds' witnesses was part of a multi-corporation conspiracy to defraud the court system: [Robinson's counsel:] It kind of reminds me of the banking industry. The banking industry, toward the late '90s, were making a lot of money.

[Reynolds' counsel:] Objection, Your Honor. Improper argument.

[Robinson's counsel:] May I respond, Your Honor?

[Court:] Finish your argument, Counsel.

[Robinson's counsel:] The real estate. The real estate boom. Wall Street is doing well. Banks are doing well. And then the real estate bubble bursts. Now, Wall Street was driving that real estate bubble, banking was driving that real estate bubble, but the moment the bubble burst, who was to blame?

All the sudden, it was Middle America. Middle America for living beyond their means. Middle American, individual Americans for taking mortgages and buying houses that they knew they couldn't afford in the first place, for being fiscally irresponsible, and now they can't make their bills. But who created the environment? The bankers, mortgage companies. And some of big banks even bet on the bust, so they made money on the bubble growing -

[Reynolds' counsel:] Objection, Your Honor. This is irrelevant.

[Court:] Sustained. Move along, Counsel.

[Robinson's counsel:] Why is that relevant, ladies and gentlemen? Because the same model works for tobacco. Why is it even more relevant? Because what did we see in the presentation of evidence? The same big corporations not only employ the same strategies, they employ the same people. Some of the experts -

[Reynolds' counsel:] Objection, Your Honor. This is irrelevant.

[Robinson's counsel:] May I make -

[Court:] Counsel, finish up.

[Robinson's counsel:] We had an expert on the stand, Dr. Bennett, who said not only had he testified for tobacco in defense, he'd also testified for Ford in defense. He'd also testified for a pharmaceutical company in defense.

And he also said, what? In all of the cases he's testified in trial at, not once has he ever found that the company, for whom he was testifying, was at fault. Which means what, by implication? That the person, the plaintiff who was suing, was at fault.

That's exactly what the banking industry did. When the bubble burst because they -

[Reynolds' counsel:] Objection, Your Honor. Improper argument.

[Court:] Sustained. Move along, Counsel.

[Robinson's counsel:] So, ladies and gentlemen, sometimes we have to consider the environment that's created. And then consider the options that are there for people. And then consider if a company is really changed. If from - if it's really a new day. If they're really accepting fault.

[Reynolds' counsel:] Objection; same issue.

[Court:] Counsel. Keep moving.

[Robinson's counsel:] If they've really turned over a new leaf, if accountability is ultimately what's important, then why isn't the corporation accepting responsibility. Why are they taking -

[Reynolds' counsel:] Objection.

[Court:] Overruled.

         Having set the stage, Robinson's counsel castigated Reynolds for refusing to "come clean:" The first thing I want to tell you, if we go to the first slide I've got, the tobacco companies, Reynolds and the others, they've never come clean about what we've proven in this trial. They never have.

RJR, that's Reynolds, has never admitted - they've never admitted this. And you might remember Dr. Proctor was on the witness stand. He's the guy from Stanford, the professor from Stanford, historian of science. He says millions - they have never admitted millions of people have died from smoking. They haven't admitted that.

They have never admitted that they're marketing targeted kids. They haven't admitted that.

They've never admitted lying to the public.

They've never admitted making cigarettes more addictive. . . .

. . . .

They've never admitted that they assured smokers that smoking was safe. . . .

. . . .

They've never admitted lying to the public, lying to congress. They've never admitted that.

They've never admitted that their filters and their low tar or light cigarettes are not safer.

. . . .

But they refuse to this day to admit these things. They're not a changed company. They're the...

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