R.J. Reynolds Tobacco Co. v. Allen

• Citation: 228 So.3d 684
• Decision Date: 18 October 2017
• Docket Number: CASE NO. 1D15–4197
• Parties: R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants, v. Andy R. ALLEN Sr., as Personal Representative FOR the ESTATE OF Patricia L. ALLEN, Appellee.
• Court: Court of Appeal of Florida (US)

228 So.3d 684

R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants,

v.Andy R. ALLEN Sr., as Personal Representative FOR the ESTATE OF Patricia L. ALLEN, Appellee.

CASE NO. 1D15–4197

District Court of Appeal of Florida, First District.

Opinion filed October 18, 2017.

Rehearing Granted October 18, 2017

Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, for Appellant R.J. Reynolds Tobacco Company.

Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for Appellant Philip Morris USA Inc.

Celene H. Humphries, Steven L. Brannock, Philip J. Padovano, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory D. Prysock and Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, for Appellee.

ON MOTION FOR REHEARING

BILBREY, J.

We grant rehearing on the court's own motion, withdraw our previous opinion issued February 24, 2017, and substitute this opinion in its place. In this Engle-progeny case,¹ Appellants raise four issues in their challenge to the final judgment which awarded Appellee $3,094,000 in compensatory damages, jointly and severally, and awarded Appellee $7,755,415 in punitive damages against each Appellant. Finding no error we affirm.

Allegations of Juror Misconduct

Appellants first contend that the trial court erred in not dismissing a juror during trial or for not granting the Appellants' post-trial motion for new trial based on the juror's alleged failure to disclose bias against tobacco companies during jury selection. The parties agree that the trial court's denial of a motion to dismiss a juror and denial of new trial based on allegation of juror concealment of bias are reviewed for abuse of the trial court's discretion. Villalobos v. State, 143 So.3d 1042, 1046 (Fla. 3d DCA 2013). "Indeed, Florida courts give great deference to such decisions because trial judges are in the unique position to evaluate the practices of the attorneys during voir dire and to determine what factors were material in jury selection." Morgan v. Milton, 105 So.3d 545, 549 (Fla. 1st DCA 2012).

When jury selection began, the trial court explained the process to the panel of prospective jurors, including explaining a juror questionnaire prepared by the Appellants. The court asked the jurors "to take seriously the questionnaire and answer the questions as truthfully and fully as you can." Prospective juror Michael Taylor completed his questionnaire. Mr. Taylor checked the areas in which he had worked or received training or education, including "Tobacco/Cigarette Industry," "Addiction or substance abuse," and "Smoking cessation." In response to the request to "explain," Mr. Taylor wrote "Tobacco former smoker, substance tobacco" and "ex-smoker 28 years/5 clean." In response to a question regarding his "smoking status," Mr. Taylor circled "Former Smoker." He gave details of his former smoking behaviors, including his start at age 13, the 28 years he was a smoker, and that he tried to quit "many" times. He also described his family's history of smoking, including the particular relatives who smoked, what brands they smoked, and the heavy amounts that they smoked. Mr. Taylor indicated in the questionnaire that he thought his minor son suffered from smoking-related asthma. When asked in question 30 his opinion of smokers, Mr. Taylor wrote: "Addicted but accountable for their choices." In answer to question 31 about his opinion of "a lawsuit against a tobacco company," Mr. Taylor wrote that he "must know the facts to judge." When asked in question 32 his "opinion, if any, of cigarette companies," Mr. Taylor wrote, "they are a business."

Jury selection spanned three days. The parties point to only one excerpt in the transcripts of the jury selection showing Mr. Taylor being questioned individually. When asked by Appellee's trial counsel about his smoking history, Mr. Taylor replied, "I smoked 28 years, addicted to nicotine, quit on Chantix 2008. Smoked a pack a day." Mr. Taylor was never individually questioned by Appellants' trial counsel. No preemptory or for cause challenges were directed at Mr. Taylor, and he was selected as a member of the jury.

On the fourth day of trial Appellants' trial counsel raised the allegations of juror misconduct by Mr. Taylor in a written motion seeking to have him removed from the jury. The motion alleged "personal and deep-seated antagonism and bias against Defendants" based on social media postings Mr. Taylor had purportedly made on the internet in the past. The trial continued, and a few days later counsel for Appellee filed a written response. The trial court heard argument on the motion outside the presence of the jury, and after taking the matter under advisement, denied the motion to dismiss Mr. Taylor from the jury. After the jury returned verdicts for compensatory and then punitive damages for the Appellee, the trial court entered a detailed order setting forth the basis for denying the motion to remove Mr. Taylor.

After the jury verdicts, the Appellants moved for a new trial based on the same allegations raised in their motion to dismiss Mr. Taylor from the jury. After receiving a response from Appellee and holding a hearing on the motion for new trial, the trial court denied that motion. At no time did Appellants seek to further voir dire or interview Mr. Taylor regarding the allegations of bias.

The trial court thoroughly analyzed this issue in its orders denying the dismissal of Mr. Taylor and denying a new trial. The three-part standard the trial court correctly used was given in De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995). In De La Rosa, the Florida Supreme Court stated the test for whether a new trial is warranted based on juror concealment, "First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence." Id. at 241. The first prong of the De La Rosa standard was undisputed below, and the trial court found that the postings were relevant and material to Mr. Taylor's jury service.²

As to the second prong of the De La Rosa standard, the trial court found that Mr. Taylor did not conceal any bias against the Appellants. In the order denying Appellants' motion to dismiss Mr. Taylor, the trial court stated,

First, Juror Taylor's response that cigarette smokers are "addicted but accountable for their choices" is not inconsistent with his social media posts. In both posts Juror Taylor discussed his overcoming of smoking addiction. Similarly, his responses to the other two questionnaire questions are not contradictory of his social media posts. The Defendants appear to argue that Juror Taylor was requested to elaborate more in his response to the questionnaire. However, questions 30–32 of the juror questionnaire are subjective questions that are broad enough to summon a wide array of responses. The questions certainly do not clearly or squarely ask for the detailed level of information present in Juror Taylor's social media posts. The questions do not specifically require the jurors to disclose whether they harbor any negative feelings towards tobacco companies.

The questionnaire did not ask unequivocal questions regarding bias, and Mr. Taylor did not provide unequivocal answers, which distinguishes the facts here from Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), cited by Appellants. In Roberts, the Florida Supreme Court required a new trial where a juror failed to disclose that she had been involved in prior litigation when asked if she had ever been a party to a lawsuit. See also De La Rosa, 659 So.2d at 241. The questions and answers at issue here were not the clear, black or white, yes or no, type of questions at issue in Roberts. Mr. Taylor cannot be blamed for "not being more forthcoming given the very basic questions asked." Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011) ; see also Hood v. Valle, 979 So.2d 961 (Fla. 3d DCA 2008).³ The trial court did not abuse its discretion in finding that the second prong of the De La Rosa standard was not met.

The trial court also found that there was insufficient due diligence exercised by Appellants to meet the third prong of the De La Rosa standard. As the Court explained in Roberts, "resolution of this ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information." 814 So.2d at 343. In making the factual determination, in the order denying the dismissal of Mr. Taylor from the jury, the trial court found,

[Q]uestions 30–32 of the juror questionnaire were broad enough to elicit a wide array of responses. Juror Taylor's responses to these three questions raised numerous issues that would logically call for follow-up questions. Moreover, Juror Taylor indicated on the questionnaire that he was a former heavy smoker of twenty-eight years, and had been "clean" for the past five years. He also stated that his father and both grandfathers were lifelong heavy smokers, leading to health issues. Juror Taylor indicated on the questionnaire that he attributed his son's asthma to smoking-related causes.

The trial court also mentioned Mr. Taylor's verbal response detailing his smoking history.

The trial court found that due diligence required follow-up questions to Mr. Taylor, a long-time smoker now five years "clean," to examine whether he "harbored no ill-feelings toward tobacco companies." Due diligence is lacking when "at best, an ambiguity may exist which was not explored." Lugo v. State, 2 So.3d 1, 15 (Fla. 2008). The trial court noted that it...