R.J. Reynolds Tobacco Co. v. Kaplan

• Decision Date: 23 June 2021
• Docket Number: No. 4D18-2880,4D18-2880
• Parties: R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants, v. Myron KAPLAN, as Personal Representative of the Estate of Sheila Kaplan, Appellee.
• Court: Florida District Court of Appeals

321 So.3d 267

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

v.Myron KAPLAN, as Personal Representative of the Estate of Sheila Kaplan, Appellee.

No. 4D18-2880

District Court of Appeal of Florida, Fourth District.

[June 23, 2021]

Scott A. Chesin and Michael Rayfield of Mayer Brown LLP, New York, N.Y., and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for appellant Philip Morris USA Inc.

William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta, GA, for appellant R.J. Reynolds Tobacco Co.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger, Jonathan R. Gdanski and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, and Philip J. Padovano and Celene H. Humphries of Brannock Humphries & Berman, Tampa, for appellee.

ON MOTION FOR REHEARING EN BANC AND REVISED WRITTEN OPINION

Conner, J.

We deny the appellants’ motion for rehearing en banc, but grant appellants’ motion for a revised written opinion, withdraw our opinion dated December 9, 2020, and issue the following in its place:

Appellants R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (collectively, "Tobacco") appeal a judgment in favor of Myron Kaplan ("Plaintiff"), as personal representative of the estate of Sheila Kaplan ("Decedent"). Tobacco raises five issues on appeal. We affirm as to all five issues without discussion, except for the issue concerning two egregiously improper closing arguments by Plaintiff's counsel.¹ We choose to discuss that issue because the problem is recurring, and the trial court improperly overruled objections to the arguments. We write to stress once again to trial judges the importance of curbing improper closing arguments designed to appeal to the emotions and passions of jurors. Inflammatory improper arguments must be stopped to maintain public confidence in our system of justice.

Background

Decedent began smoking cigarettes at age 14 or 15, including brands manufactured by Tobacco. Plaintiff and Decedent married in 1964. When Plaintiff first met Decedent, she was a "heavy smoker." Decedent was eventually diagnosed with a lung tumor in 1994, leading to surgery to remove one of her lungs. After the surgery, Decedent quit smoking. Although the doctors thought she was in remission, her cancer

returned, and she eventually died.

Plaintiff filed a six-count complaint against Tobacco making the usual Engle² progeny case claims. As typical with Engle cases, the trial was conducted in two phases. Much of the evidence in Phase I revolved around the issue of whether Decedent died of a form of lung cancer

established by the Engle findings to be caused by smoking.

During the initial closing argument in Phase I, immediately after making reference to the Engle findings, Plaintiff's counsel made the following argument, to which Tobacco objected:

[Plaintiff Counsel]: Now, the obligation would have been, upon the discovery in the ’50s of this terrible truth about their product, would have been stop making it or fix it. And they fooled the public health, right? Even they—even—

They even had that third-party strategy of corrupting scientists to do their bidding and to fool public health officials into saying, well, if you got to smoke, smoke the filters. And that went on for decades and decades. So that's another form of reassurance. The public health authority were unwitting dupes. They were helping.

So that's the Engle finding. That's the Engle trial. And these are your findings, right? These are—

There are blood, sweat and tears to get these things.

[Tobacco Counsel]: Objection, Your Honor; improper argument.

THE COURT: Overruled.

[Plaintiff Counsel]: It's like the movie "Schindler's List," right? There's a scene in "Schindler's List" where he holds up the list — it's the most powerful scene in the movie, as far as I'm concerned — he holds up the list and he shows the list of the names, the 800 names they're going to pull out of the concentration camp and save their lives —

[Tobacco Counsel]: Objection, Your Honor; improper argument.

THE COURT: Overruled.

[Plaintiff Counsel]: — and he says — he says —

He goes, the list is an absolute good. He says, the list is life. He says, all around it is the void. All around it is the darkness.

This list of rulings [the Engle findings] for you is an absolute good. It's an absolute good.

Tobacco again objected and asked for a sidebar. At sidebar, the following exchange occurred:

[Tobacco Counsel]: He just analogized [Tobacco] to the Germans ... to the Germans in the Holocaust. The victims of cigarette smoking and the victims of the Holocaust.

That is incredible. That is such a violation of proper argument. Characterizing [Tobacco] as Nazis, as being like those that killed — engaged in a genocide?

THE COURT: Well, I understand your objection, but I didn't get that out of it. He was talking about a movie and a list, and he mentioned the — ....

Plaintiff's counsel interjected that in Engle , the Third District reversed in part because Engle's counsel made a direct comparison of the tobacco companies to the Nazis; however, our supreme court reinstated the verdict after deciding the comparison was over the line, but not grounds for reversing a long trial. The trial court responded:

THE COURT: Right.

[Plaintiff Counsel]: Here, I'm not talking about —

I didn't compare them to Nazis. I'm not talking about —

THE COURT: You didn't go anywhere near that.

[Tobacco Counsel]: Holocaust is right in the middle of it. Sorry to interrupt.

THE COURT: No; I mean, he didn't go — he didn't go there ....

The trial court overruled the objection to the Schindler's List argument and asked if Tobacco was moving for mistrial. Tobacco moved for mistrial at sidebar and the trial court reserved ruling. After the Plaintiff's initial closing argument, Tobacco again moved for a mistrial based on the Schindler's List argument, as well as multiple sustained objections during the initial closing. The trial court again reserved ruling.

Later, Plaintiff's counsel ended his rebuttal closing argument in Phase I as follows:

[Plaintiff Counsel]: Let me finish with this. There is a passage from a book I want to read briefly. It is a book by George Orwell called 1984 .

It was made into a movie, okay. Jonathan Hurt, who is long gone and Richard Burton, who is long gone, academy award-winning actor, played the roles in the movie.

And the actor, Hurt, was the victim; and Big Brother was Richard Burton. And he —

[Tobacco Counsel]: Objection, Your Honor, improper argument.

THE COURT: Overruled.

[Plaintiff Counsel]: — he's standing over Winston, who he's about to torture, so he can make his mind right, so he can have nothing but the love of Big Brother.

He's standing over him, and this is what he says. And above all, Winston — no, sorry — and above all, we do not allow the dead to rise up against us. You must stop imagining that posterity will vindicate you, Winston.

Posterity will never hear of you. You will be lifted clean out from the stream of history. We shall turn you into a gas and pour you into the stratosphere. Nothing will remain of you, not a name in a register.

[Tobacco Counsel]: Objection, Your Honor, this is improper argument.

THE COURT: Overruled.

[Plaintiff Counsel]: Not a memory in a living brain — not a name in a register, not a memory in a living brain. You will have been annihilated in the past, as well as in the future. You will never have existed.

When you go back there and you make this right and you do justice, you will prove that passage will not come true for my client, [Decedent].

After Phase I of the trial, the jury returned a verdict for compensatory damages for past pain and suffering in the amount of $1.58 million, $520,000 for future damages, and $7,211 for funeral expenses. The jury also found by clear and convincing evidence that punitive damages were warranted against both tobacco companies, and, at the end of Phase II, the jury awarded Plaintiff punitive damages totaling $2,971,000.

After the verdict was entered, Tobacco moved for a new trial, raising multiple grounds. One such ground was multiple improper closing arguments, including the Schindler's List and the 1984 arguments. After denying the motion for new trial, the trial court entered a final judgment in conformity with the jury's verdicts. Tobacco gave joint notice of appeal.

Appellate Analysis

Although Tobacco's motion for new trial argued several instances of improper closing argument, Tobacco's appeal focuses on the Schindler's List and 1984 analogies and gives little attention to the other asserted improper arguments. The initial brief devoted a total of three pages of analysis regarding the issue of improper closing arguments, discussing the issue with conclusory statements. Hence, we similarly confine our analysis to the Schindler's List and 1984 arguments.

A. Plaintiff's closing argument "crossed the line."

"A trial court's denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion." R.J. Reynolds Tobacco Co. v. Calloway , 201 So. 3d 753, 759 (Fla. 4th DCA 2016) (quoting Whitney v. Milien , 125 So. 3d 817, 818 (Fla. 4th DCA 2013) ).

Regarding closing arguments, our supreme court and we have stressed:

The purpose of closing argument is to help the jury understand the issues in a case by "applying the evidence to the law applicable to the case." Hill v. State , 515 So. 2d 176, 178 (Fla. 1987). 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." Knoizen v. Bruegger , 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) ; see also Venning v. Roe , 616 So. 2d 604 (Fla. 2d DCA 1993). Moreover, closing argument must not be used to "inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical

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