Improper Closing Argument In Tobacco Case Reverses $70 Million Judgment

October 5, 2016

Sitting en banc on a motion for rehearing, the Fourth DCA reversed a $70 million plaintiff’s judgment in a tobacco case. The trial was trifurcated, with Phase II covering causation, comparative fault, compensatory damages, and entitlement to punitive damages. Based on the jury’s verdict, the trial court entered a judgment for plaintiff in excess of $70 million in compensatory and punitive damages.

The Fourth DCA initially affirmed, but responded to a motion for rehearing en banc by reversing and remanding for a new trial. “[T]he comments and argument of plaintiff’s counsel were so improper that their cumulative effect during the Phase II proceedings was such that the jury verdict was unduly based upon passion and prejudice.”

The appeals court summarized the improper arguments: “[T]he plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize. The closing argument included inflammatory remarks; statements evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial. Taking into account all of the preserved objections to the improper comments in plaintiff’s counsel’s opening and closing as referenced above, the cumulative impact of these errors created an atmosphere of ‘win at all costs.’”

Although numerous objections to improper argument were sustained by the trial court, the Fourth DCA made it clear that trial judges are expected to do more than just sustain objections in situations like that presented in this case: “[A] timely and appropriate admonition of counsel avoids the possibility that the offending conduct will continue, and hopefully forestalls the accumulation of prejudice that occurs when such repeated improprieties are not effectively addressed. Regrettably, the trial court did not adequately perform its duty to prevent the conduct described herein. As one of the aforementioned examples from this case indicates, after the court sustained fourteen objections over the course of a mere thirty-three pages of trial transcript, the court took no further action. Apart from the deleterious effects that judicial inaction may cause in any given case, the failure of our trial courts to effectively deal with such conduct can in a broader sense only lead to emulation by other attorneys. Dismissing such occurrences as mere ‘harmless error’ encourages ‘Rambo’ litigators, intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate courts. If that occurs, the entire judicial system suffers.”

The appeals court issued a clear warning against future misconduct: “In [Philip Morris USA, Inc. v.] Tullo, [121 So. 3d 595, 598 (Fla. 4th DCA 2013)], we sent a gentle message to lawyers pertaining to how future cases should be handled, and cautioned counsel to “be vigilant in crafting closing arguments that fall within the confines of permissibility.” . . . Unfortunately, we have seen many recent cases where this warning was either misunderstood or simply ignored. In this opinion, we hope to make that warning clearer. Attorneys who engage in such tactics in the future do so at their own peril, and the peril of their clients, by risking the reversal of their cases on appeal.” R.J. Reynolds Tobacco Co. v. Calloway, __ So.3d __ (Fla. 4th DCA, No. 4D12-3337, 9/23/2016) (on rehearing), 2016 WL 5404053.

(Mike Frisch)