42
Fla. L. Weekly D496aTop of Form

Wrongful
death — Product liability — Tobacco — Argument — New trial is required
because of plaintiff’s counsel’s improper argument, including suggestion that
defendant was not accepting responsibility, characterizing defense as a scheme
to deceive the jury, and disparaging defendant for defending itself — Improper
arguments were so highly prejudicial and inflammatory that they denied
defendant its right to a fair trial

R.
J. REYNOLDS TOBACCO COMPANY, Appellant, v. CYNTHIA ROBINSON, as Personal
Representative of the Estate of MICHAEL JOHNSON, SR., deceased, Appellee. 1st
District. Case No. 1D15-0989. Opinion filed February 24, 2017. An appeal from
the Circuit Court for Escambia County. Terry D. Terrell, Judge. Counsel:
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 same old R.J.
Reynolds that just thinks of an excuse and a way to continue to market its
products —

The
trial court overruled Reynolds’ objection to this line of comments.

Moments
later, after proclaiming to the jury that tobacco is “one of the wealthiest,
most powerful industries in this country,” and noting the “hundred billion on
advertising” it has spent, Robinson’s counsel drew additional objections by
accusing Reynolds of not admitting to “forming a conspiracy to hide the hazards
of smoking” and “destroying documents to win lawsuits.” After arguing that
Robinson’s claim that Reynolds engaged in spoliation was unsupported by the
evidence, counsel for Reynolds argued that it was improper to argue that a
defendant should be punished for not admitting fault:

And, frankly, Your Honor,
this entire pitch about they didn’t accept responsibility or they didn’t do it
is an improper argument. You cannot seek to punish a defendant for not
admitting fault, and that’s exactly what they’re doing here.

Robinson’s
counsel responded by clarifying that he was referring to Reynolds’ failure to
admit its bad acts to the public, not the jury:

As far as them admitting these
things, I’m not — I’m talking about to the public, and I thought I made that
pretty clear that they’ve never admitted to the public that they do these
things. And I think that that’s reprehensible.

The
trial court overruled Reynolds’ objection, but told Robinson’s counsel to
“crystallize” his argument.

Robinson’s
counsel continued, “You might remember the last thing that Dr. Proctor
testified about when I was asking him questions. . . . He talked about what
this company and the other companies have refused to admit to the public.
That’s what I’m talking about.”

Robinson’s
counsel continued to develop the narrative that Reynolds’ defense and refusal
to accept responsibility was part of a scheme to deceive the jurors, stating:

[Reynolds] could make a safer
cigarette. Did they do it? No.

But they said, we got a good
thing going here. We got [to] be able to snow the jurors. We’ve got a big legal
team.

. . . .

They are betting on the fact
that they’re going to snow you. That’s what they’re betting on. They’re going
to snow you either on the liability, or they’re going to snow you on the value
of the loss to this young man, his father, and this lady, her husband . . . .

The
trial court sustained Reynolds’ objection to the first of these two comments,
but Reynolds did not object to the second comment.

At
the conclusion of Phase I of the trial, the jury found that the decedent was
addicted to cigarettes containing nicotine, which was a legal cause of his lung
cancer and death, and that smoking cigarettes manufactured by Reynolds was a
legal cause of decedent’s lung cancer and death. The jury awarded approximately
$9.59 million in non-economic compensatory damages to Michael Johnson, Jr., and
approximately $7.3 million in such damages to Robinson, apportioning 70.5% of
the fault to Reynolds and 29.5% of the fault to the decedent.

Phase
II of the trial, regarding punitive damages, lasted for one day. The jury
returned an award of approximately $23.6 billion dollars ($23,623,718,906.62).

Reynolds
filed a post-trial motion for judgment, new trial, or remittitur. Its primary
argument was that the punitive award was so excessive as to warrant a new trial
on all issues. Reynolds further argued, among other things, that the
compensatory awards were excessive and that various improper arguments made by
Robinson’s counsel warranted a new trial.

In
response, Robinson conceded that the punitive award was excessive and “ought to
be remitted.” But she contended that any broader relief would be inappropriate
because that award arose entirely from comments made by Reynolds’ trial counsel
during Phase II. She also contended that the compensatory awards were not
excessive. And she contended that Reynolds had not preserved any challenge
based on improper arguments.

The
trial court agreed with the parties that the punitive award was “admittedly and
clearly constitutionally excessive.” The court remitted that award to
$16,893,833 — the total combined amount of the two compensatory awards.
Pursuant to Waste Management, Inc. v. Mora, 940 So. 2d 1105 (Fla. 2006),
the court gave either party the option to reject the remittitur and instead
demand a new trial on the amount of punitive damages. Reynolds rejected the
remittitur and demanded a new trial on punitive damages, which the trial court granted.

The
trial court denied any broader relief to Reynolds. In concluding that the
compensatory awards were not excessive, the court acknowledged that they were
“high compared to other Engle progeny verdicts that have been sustained
on appeal.” However, the court stated that there was no jury passion during
Phase I because the jury appeared “alert and attentive, calm, deliberate,
focused, inquisitive, and insightful in nearly every question they asked.” The
court further reasoned that Mr. Johnson “appears to have been the youngest Engle
class member found to have died from a smoking related illness”; that the
parties presented conflicting evidence; and that the jurors might have
disbelieved medical expert testimony presented by Reynolds, which could have led
them to reason “that if a critical defense expert was not reliable, then how
could the Defendant’s other positions be relied upon.”

Reynolds
appealed pursuant to Florida Rule of Appellate Procedure 9.130(a)(4)
challenging the February 11, 2015 order insofar as it limited the grant of a
new trial to the question of the punitive damages amount.

II.

Reynolds
contends that numerous comments of Robinson’s counsel regarding its alleged
failure to accept responsibility and admit wrongdoing improperly disparaged the
company for defending itself at trial. Robinson counters that the comments were
proper in that they related to her request for punitive damages. A trial
court’s denial of a motion for new trial based on improper closing arguments is
reviewed for abuse of discretion. R.J. Reynolds Tobacco Co. v. Gafney,
188 So. 3d 53, 57 (Fla. 4th DCA 2016). “If the issue of an opponent’s improper
argument has been properly preserved by objection and motion for mistrial, the
trial court should grant a new trial if the argument was ‘so highly prejudicial
and inflammatory that it denied the opposing party its right to a fair trial.’
” Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006)
(quoting Tanner v. Beck, 907 So. 2d 1190, 1196 (Fla. 3d DCA 2005)).

Litigants
enjoy broad, but not unlimited, latitude during closing argument. As our
supreme court explained in Murphy v. International Robotic Systems, Inc.:

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.” 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.” 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 analysis of the evidence in
light of the applicable law.

766
So. 2d 1010, 1028 (Fla. 2000) (citations omitted).

A
plaintiff may not suggest to the jury that a defendant is somehow acting
improperly by defending itself at trial or that a defendant should be punished
for contesting damages. See State Farm Mut. Auto Ins. Co. v. Thorne, 110
So. 3d 66, 74-75 (Fla. 2d DCA 2013) (declaring improper plaintiff’s “contention
in closing that the defendants’ evidence and argument were an attempt ‘to avoid
responsibility’ and, as a result, the defendants exhibited shameful conduct”); Intramed,
Inc. v. Guider, 93 So. 3d 503, 507 (Fla. 4th DCA 2012) (“Counsel’s
arguments improperly suggested that the defendant should be punished for
contesting damages at trial and that its defense of the claim in court was
improper[.]”); Carnival Corp. v. Pajares, 972 So. 2d 973, 977-78 (Fla.
3d DCA 2007) (“The arguments made by Pajares’ counsel, denigrating Carnival’s
defense of Pajares’ claim and suggesting that Carnival should be punished for
contesting liability, are the type of arguments previously condemned by this
Court, and are equally condemned in the instant case.”).

The
Fourth District recently applied this principle in Cohen v. Philip Morris
USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016), an Engle progeny case
involving comments remarkably similar to the ones made in this case. There, as
here, the plaintiff repeatedly claimed that the tobacco company failed to “take
responsibility” and admit wrongdoing. Id. at 945. For example, the
plaintiff maligned the tobacco company for “a dozen things tobacco has never admitted
to,” such as never having “admitted that the cigarettes smoked today are just
as deadly as any cigarettes ever smoked” and that “hundreds of thousands of
people have died.” Id. at 946.

The
Cohen court affirmed the trial court’s order granting a new trial based
in part on these comments, reasoning that “counsel made arguments which crossed
the line into ‘take responsibility’ and ‘apologize’ territory.” Id. at
948. The court rejected the plaintiff’s argument that such comments were proper
because they related to its request for punitive damages, explaining that the
comments were not “clearly linked” to proving what is required for punitive
damages, that is, that the defendant acted with intent or gross negligence. Id.

We
agree that it is improper to disparage an Engle defendant for contesting
what is in dispute at trial. In every Engle case there are certain
factual findings that have res judicata effect. The jury is required to regard
these findings as conclusively established. However, such plaintiff-specific
issues as legal causation, comparative fault, and damages must be proved on a
jury-by-jury basis. See Philip Morris USA, Inc. v. Douglas, 110 So. 3d
419, 424 (Fla. 2013). On these and other open issues of liability, Engle
defendants are permitted to defend themselves vigorously. Plaintiffs may not
denigrate defendants for contesting the very facts that they are, as
plaintiffs, required by law to prove.

Here,
Robinson’s comments are substantively identical to the comments condemned in Cohen.
By reproaching Reynolds for its supposed failure to “come clean” and admit past
wrongdoing, Robinson violated the principle that plaintiffs may not disparage
defendants for contesting liability at trial. Reynolds was under no obligation
to admit disputed facts helpful to Robinson’s case for punitive damages.
Plaintiffs must carry their own burden, and to suggest otherwise is improper.

Similarly,
we emphasize the manifest impropriety of Robinson’s suggestions that Reynolds
was not “accepting responsibility.” Robinson made the extraordinary claim that
Reynolds and other “big corporations” use legal defenses modeled after a
dishonest strategy employed by the banking industry in the real estate market
and that one of Reynolds’ witnesses was complicit in this scheme of deception.
Such allegations of conspiracy do more to stir the imagination than encourage
reasoned analysis of facts and evidence. As such, they are inappropriate.

The
same tactic was recently used against Reynolds in R.J. Reynolds Tobacco Co.
v. Gafney, 188 So. 3d 53 (Fla. 4th DCA 2016). There, during closing
argument, plaintiff’s counsel suggested that Reynolds’ counsel was involved in
a conspiracy, stating:

[I]f you wanted to have a
window when the defendants, through the Tobacco Institute, were speaking privately,
secretly among themselves, high-ranking officials of the Tobacco Institute, and
want to know why the defense in these cases consistently tries to recast the
jury instructions and the questions on the verdict form, you have information
that helps you from one of their co-conspirators, and that’s the Tobacco
Institute, and here it is.

Id.
at 56 (emphasis in original). The Fourth District condemned the comment,
stating, “[t]he insinuation that appellants’ attorneys were engaged in a
conspiracy with either the defendants or third parties to mislead, conceal, or
manipulate as part of an on-going scheme did not merely push the envelope, but
instead went wholly beyond the pale.” Id. at 59.

The
same is true here. Robinson’s allegation against Reynolds’ witness, which
necessarily implicated Reynolds’ counsel, served no other purpose but to incite
prejudice and undue suspicion. Again, the purpose of closing argument is to
facilitate reasoned analysis of the facts and evidence, not to denigrate the
opposing party with outlandish conspiracy theories.

III.

Again,
Reynolds is entitled to a new trial if Robinson’s improper arguments were so
highly prejudicial and inflammatory that they denied Reynolds its right to a
fair trial.3It is clear from the record that
Robinson’s trial strategy was to utterly vilify their opponent. In addition to
accusing opposing counsel of participation in a scheme of deception, counsel
for Robinson denigrated Reynolds as an unrepentant,4 anti-military,5 criminal6 predator,7 whom the jury must fight8 and destroy.9 10 The jury, perhaps heeding Robinson’s
ominous warning that “God’s not pleased,”11 answered with an unprecedented
punitive verdict of $23.6 billion. On such a record, so replete with improper
arguments and comments clearly intended to stir the passions of the jury, we
must conclude that Robinson’s misconduct had its intended effect. Indeed, we
regard the absurdly excessive punitive award as sure proof that the jury gave
great weight to Robinson’s presentation. See Christopher v. Fla., 449
F.3d 1360, 1374 n.11 (11th Cir. 2006) (finding “the jury’s award of excessive
damages as proof that Plaintiff’s counsel’s misconduct probably influenced the
jury”); Harbor Ins. Co. v. Miller, 487 So. 2d 46, 47 (Fla. 3d DCA 1986)
(finding that the excessiveness of the award was “evidence that the prejudicial
conduct complained of by appellant was in fact so extensive that its influence
pervaded the trial to the point that it was impossible for appellant to receive
a fair trial”).

Our
conclusion is reinforced by the absence of any meaningful effort on the part of
the trial court to stop the wrongdoing, even when Robinson engaged in
misconduct previously ruled improper. For example, during closing argument, the
trial court sustained an objection to a remark accusing Reynolds of having one
of its medical experts “come in from Montana and throw every Pensacola doctor
under the bus.” Later, Robinson’s counsel made the same comment, stating, “they
paid Dr. Bennett to come all the way from Montana and throw out not only Dr.
Boatright but every other Pensacola doctor under the bus.” Reynolds objected,
and the trial court merely asked Robinson’s counsel to “rephrase” the comment.
This and other instructions such as “move along” or “finish up” likely
aggravated the harm and may have encouraged future misconduct. The Fourth District
recently addressed similar improper argument and consequent lack of assertive
response by the trial court in R.J. Reynolds Tobacco Co. v. Calloway,
201 So. 3d 753, 762 (Fla. 4th DCA 2016) (en banc):

[T]he record reflects no
significant admonishment of any kind was delivered by the court, even after
plaintiff’s counsel chose to continue with similar improper comments when
defendants’ objections had been sustained. The repeated sustained objections
should have been sufficient to alert the court to the impermissible nature of
these comments. Advising counsel to simply “move on” to another line of
questioning was wholly inadequate. As a result, the prejudicial effect of these
comments was compounded by the trial court’s failure to attempt any real intervention
to curb them.

We
agree. Where, as here, a litigant repeatedly ignores court rulings and exhibits
flagrant disregard for the bounds of proper argument, it is not enough to
simply sustain objections and offer flaccid admonishments such as “move along”
or “finish up.” The trial court should clearly convey to counsel that
misconduct will not be tolerated, even in the presence of the jury if
necessary. See Gomez v. State, 751 So. 2d 630, 633 (Fla. 3d DCA 1999).
Because this did not occur here, in spite of counsel’s myriad improper and
inflammatory comments, Reynolds was denied a fair trial.

IV.

For
the foregoing reasons, we hold that the trial court erred in denying Reynolds’
motion for new trial. We reverse and remand for a new trial. (B.L. THOMAS and
JAY, JJ., CONCUR.)

__________________

1Because
we reverse this case for a new trial, we decline to address the other issues
raised by Appellant.

2Engle
v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

3We
reject Reynolds’ argument that it is entitled to a new trial because Robinson
“cannot prove that her trial counsel’s improper arguments were harmless.”
“Error,” in the context of harmless-error analysis, is an improper ruling by
the trial court, not an improper comment by counsel or a witness. For example,
in the case Reynolds cites for this proposition, Special v. West Boca
Medical Center, 160 So. 3d 1251 (Fla. 2014), the trial court improperly
excluded evidence, and the supreme court undertook to determine whether the
trial court’s errors were harmless. While the trial court here did erroneously
overrule some of Reynolds’ objections, it sustained most of them and,
therefore, did not commit “errors” that Robinson must prove are harmless. See
e.g., Poole v. State, 997 So. 2d 382, 391 n.3 (Fla. 2008). The “error”
alleged here is the denial of the motion for new trial based upon these
comments. Because we find that the comments deprived Reynolds of a fair trial,
the trial court erred in denying Reynolds’ motion. “Harmless error” plays no
part in this analysis.

4“And
now they come in and woe us down as if they’re repenting, but they’re not.
They’re not because the first thing of repenting is what? Admission. They
haven’t accepted any liability. They couldn’t make it in any church with this
argument.”

5“You
won’t believe this. After [U.S. soldiers] got back home — first, these tobacco
companies gave cigarettes free. Free. They put a pack of cigarettes in
breakfast, they put one in lunch, and they put one in dinner. They gave it to
them free. They thought it was free. They knew they were getting them hooked on
drugs.”

6“[M]ost
people don’t get to sell drugs without going to jail.”

7“They
got the money, they got the resources, they got the power, they can fight, and
they’re fighting.”

8“We
got ambushed, some of our boys got ambushed on Sunday morning [referring to the
1941 attack on Pearl Harbor]. And you know that story. I won’t go into that,
but they were fighting for us, and you’ve got to fight for them.”

9“You
have a lot of power members of the jury . . . [y]ou can bring major
corporations to their knees when you catch them wrong a billion people going
down.”

10To
be sure, Reynolds’ counsel did not object to all of these comments. While we
would not reverse the order denying new trial based upon these unobjected-to
comments, the cumulative effect of preserved and unpreserved improper comments
may be considered. See e.g., Allstate Ins. Co. v. Marotta, 125 So. 3d
956, 961 (Fla. 4th DCA 2013).

11“But
when you withhold, when you refrain from telling the truth, and you flat out
lie to people to get them hooked so you can make more money, that’s not right,
and you know it’s not right. Nobody’s pleased with that. God’s not pleased with
that.”

* *
*