R.J. Reynolds Tobacco Co. v. Neff

• Decision Date: 14 July 2021
• Docket Number: No. 4D19-2646,4D19-2646
• Parties: R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants, v. Deborah NEFF, as Personal Representative of the Estate of Dorothy Milinkovich, Appellee.
• Court: Florida District Court of Appeals

325 So.3d 872

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

v.Deborah NEFF, as Personal Representative of the Estate of Dorothy Milinkovich, Appellee.

No. 4D19-2646

District Court of Appeal of Florida, Fourth District.

[July 14, 2021]

Val Leppert and William L. Durham II of King & Spalding LLP, Atlanta, Georgia, for appellant R.J. Reynolds Tobacco Company, and Geoffrey J. Michael and David M. Menichetti of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for appellant Philip Morris USA Inc.

Scott Schlesinger, Jonathan Gdanski, Steven Hammer, and Brittany Barron of Schlesinger Law Offices, Fort Lauderdale, and Thomas J. Seider and Celene H. Humphries of Brannock Humphries & Berman, Tampa, for appellee.

Levine, J.

In this case, we once again review the actions of an attorney who made several improper arguments to the jury during closing argument. Once again, we have a trial court that failed to sustain contemporaneous objections to several of these improper arguments. And once again, we reverse and remand due to these improper arguments made during closing arguments.

Appellants, R.J. Reynolds and Philip Morris, appeal a final judgment for wrongful death in favor of Deborah Neff, as the personal representative of the estate of Dorothy Milinkovich, for $4 million in compensatory damages and $6 million in punitive damages. Appellants raise several issues. We discuss only two of the issues: the improper arguments made by Neff's counsel and the admission of advertisements as it relates to the First Amendment. Neff also cross-appeals, challenging the verdict form, which required the jury to make a conspiracy finding for each defendant. We reverse as to the closing argument and also write to give guidance on the admission of the advertisements. As to the cross-appeal, we also reverse.

The daughter of the decedent filed a wrongful death action against Reynolds for strict liability, fraud by concealment, conspiracy to commit fraud by concealment, and negligence. She proceeded against Philip Morris with a single count of conspiracy.

The decedent was born in 1923 and began smoking at the age of thirteen or fourteen. She was diagnosed with lung cancer

in 1994 and died three months later at the age of seventy-one.

During phase I of the trial, an addiction expert testified regarding the decedent's addiction. A historian expert testified regarding the tobacco industry's decades-long conspiracy to conceal smoking's harmful effects. During the historian's testimony, Neff introduced several modern-day cigarette advertisements, including advertisements published in Glamour magazine in 2013.

Before trial, Reynolds had moved in limine to exclude the Glamour magazine advertisements. Reynolds argued the advertisements were lawful commercial speech protected by the First Amendment and that it could not be punished for exercising its constitutional right to advertise its products. The trial court denied the motion in limine, stating, "I don't see this as a First Amendment issue."

During closing arguments, Neff's counsel repeatedly argued that appellants conceded the decedent was addicted to cigarettes. Reynolds objected to the argument as "a total misstatement," which the trial court overruled. Neff's counsel characterized appellants’ defense—that the decedent's addiction did not cause her disease—as "the last refuge of the scoundrel." Reynolds objected on the grounds that it was a personal attack on counsel. The trial court stated, "All right" and informed the jury that counsels’ "opinions don't matter" and to "disregard ... any comments on the person."

Also during closing, Neff's counsel chastised appellants for admitting medical causation during trial: "After the Judge read to you they deny everything. ... In late March, March 17th, the morning after Dr. Burns was on the stand, they admitted that her smoking caused cancer

, after denying it." The trial court overruled Reynolds's objection to an attack on the defense. Neff's counsel argued that appellants had admitted compensatory damages: "[T]here are compensatory damages. Nobody has denied that. That's admitted, too. There are damages in this case." The trial court overruled Reynolds's objection.

Over objection, Neff's counsel encouraged the jury "to punish a wayward corporation that has erred, that has lost its moral compass, that has acted as an evildoer and a wrongdoer for decades ...." Neff's counsel referred to appellants as "an enterprise of death." The trial court overruled Reynolds's objection to the "enterprise of death" remark as being inflammatory. Neff's counsel further argued that appellants had "reaped an industry of death and billions and billions of profit ...."

Neff's counsel quoted from Dr. Martin Luther King: "The arc of the moral universe is long, but it bends toward justice." Neff's counsel added, "It is a long and windy road, but it indeed bends towards justice." Reynolds objected to invoking Dr. King, a civil rights leader, as well as the particulars of this quote. The trial court overruled the objection and a subsequent motion for mistrial, but reminded the jury that "[t]his is argument, ladies and gentlemen."

Over Reynolds's objection to the following as being an inflammatory argument, Neff's counsel quoted a passage from George Orwell's novel 1984 :

So this is from a book, 1984 by George Orwell, and it was written with this idea of Big Brother, who was this all-powerful entity who was able to dictate and control society. And there was this rebel in the book, Winston. And Winston was this character who was trying to rebel against George Orwell. And the most pivotal theme in the book has the character O'Brien standing over Winston, and he's about to embark on the worst part of the book. Before he makes sure he understands one thing. And this is what he says to him. He says, "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'll be lifted clean out of the stream of history . We shall turn you into a gas and pour you into a stratosphere. Nothing will remain of you, not a name in a registry, not a memory in a living brain. You will have been annihilated in the past as well as in the future. You will have never existed."

And so through this process through your verdict we ask you to please ensure that [the decedent], their victim, is remembered and that she's not forgotten .

(emphasis added). The trial court also denied a subsequent motion for mistrial based on this quote.

Neff's counsel also argued that appellants "didn't have anybody from the companies sitting here ...." Reynolds objected based on a prior ruling in limine and argued that the comment was improper, inflammatory, and highly prejudicial. The trial court sustained the objection. Neff's counsel later argued that he liked Reynolds's counsel, "[b]ut he's not R.J. Reynolds." Reynolds objected, and the trial court again sustained the objection. The trial court denied appellants’ motions for mistrial.

During a pretrial hearing, the trial court had granted appellants’ motion in limine to prevent Neff from commenting that appellants did not have any corporate representatives present at trial. During that pretrial hearing, Neff's counsel had agreed that case law did not allow such a comment during phase I.

Also during closing, Neff's counsel twice argued, "I don't see that as a valid defense." The trial court overruled Reynolds's objections to the argument as a personal attack on the defense and a personal opinion. Later, Neff's counsel argued that appellants "should be protecting children, not addicting them" and "should be working on curing cancer

, not causing cancer." The trial court overruled Reynolds's "personal opinion" objection.

Over Neff's objection, the jury verdict form required the jury to make separate conspiracy findings for each defendant. Specifically, the following form was submitted to the jury:

Please state whether [the decedent] reasonably relied to her detriment on any statement of material fact that was made in furtherance of Defendants’ agreement to conceal or omit material information not otherwise known or available, concerning the health effects or addictive nature of smoking cigarettes, with the intention that smokers and members of the public would rely to their detriment, and, if so, whether such reliance was a legal cause of her death:

R.J. Reynolds Tobacco Co.	Yes____	No____
Philip Morris USA Inc.	Yes____	No____

The jury answered yes to both these questions. The jury returned a verdict for Neff, awarding $4 million in compensatory damages.

During phase II, the parties presented evidence concerning appellants’ finances and profits. Before closing arguments in phase II, the trial court instructed the jury that "any amount of money that you award as punitive damages against the defendant must be based solely on harms caused to her by that defendant. You may not punish Philip Morris and RJ Reynolds for any harms suffered by persons other than [the decedent]."

Minutes after this instruction was read, Neff's counsel argued to the jury: "I recommend that you find them equally for what they did to [the decedent and her daughter] and millions of family members—" The trial court sustained Reynolds's objection that the case was "about one plaintiff" and that the argument was "[c]ontrary to the instruction." The trial court gave the jury the following curative instruction: "You may not punish Philip Morris and RJ Reynolds for any harm suffered by persons other than [the decedent]."

During rebuttal arguments in phase II, Neff's counsel commented on why he litigates Engle cases: "And I always—I always want to—I want to get on my feet and I want to say something beautiful and American and true. That's the only thing I care about. That's why I do this. I do what I think is important to do—" The trial court sustained Reynolds's objection that the argument was testimonial.

The jury...