Third District Court of Appeal
State of Florida
Opinion filed February 2, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-38
Lower Tribunal No. 11-23377
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R.J. Reynolds Tobacco Company, et al.,
Appellants,
vs.
Kenneth Gloger, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael and David
M. Menichetti (Washington, DC); King & Spalding LLP, and William L.
Durham II and Val Leppert (Atlanta, GA), for appellants.
Ratzan, Weissman & Boldt, and Kimberly L. Boldt, Stuart N. Ratzan,
Stuart J. Weissman, Mario R. Giommoni and Ryan C. Tyler; Crabtree &
Auslander, John G. Crabtree, Charles M. Auslander, Linda A. Wells, and
Brian C. Tackenberg, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
INTRODUCTION
In this appeal from an Engle-progeny tobacco case,1 Philip Morris USA
Inc. and R.J. Reynolds Tobacco Company appeal a final judgment entered
following a jury verdict in favor of Kenneth Gloger, as personal representative
of the estate of his wife, Irene Gloger. The jury awarded a total of $42.5 million
in compensatory and punitive damages.
Appellants, defendants below, raise several arguments on appeal.
Among them is that the trial court erred in denying a cause challenge to a
prospective juror thus requiring appellants to utilize a peremptory challenge
to strike that juror. The prospective juror’s responses during voir dire, they
argue, created at least a reasonable doubt about her ability to be impartial
and to follow the law if selected to serve on the jury. We agree and reverse
for a new trial.
FACTS AND BACKGROUND
During jury selection, the attorneys questioned the prospective jurors
about the parties’ respective burdens of proof, and inquired if they could
follow the trial court’s instructions on the law.
1
Engle-progeny cases arise out of a class action brought by a group of
smokers, or their survivors, against major cigarette companies and two
industry organizations for smoking-related injuries caused by an addiction to
nicotine. See Engle v. Liggett Grp., Inc.,
945 So. 2d 1246 (Fla. 2006).
2
One of the questions posed by defense counsel was whether any of the
potential jurors believed that someone who smokes daily is addicted to
cigarettes; the rationale being that such a belief would improperly alleviate
the smoker of her burden to prove she was addicted, shifting the burden
instead to defendants to prove she was not addicted. 2 After it was explained
to the prospective jurors that the burden was on the plaintiff to prove she was
addicted, defense counsel asked: “[D]o you believe that every smoker who
smokes is addicted?” When it was her turn to answer, Prospective Juror 8
replied: “If they smoke every day, I do feel it’s an addiction. . .. A habitual
addiction or a regular addiction, chemical addiction.” Defense counsel
followed up with Prospective Juror 8:
DEFENSE COUNSEL: Let me ask you this, as you've heard,
that's going to be one of the issues in this case, right? You also
heard [plaintiff’s counsel] talk with you about how they have the
burden to prove to you that Mrs. Gloger was addicted. Do you
remember that?
PROSPECTIVE JUROR 8: Yes.
DEFENSE COUNSEL: Now, there is a time later on in the case
that the defendants, when it comes to comparing the fault, that's
one of – an affirmative defense we have, even though they've
pled that she's at fault, we may have a burden in that regard. But
2
A plaintiff’s addiction to smoking an Engle defendant’s cigarettes containing
nicotine is an element that must be proven to prevail on an Engle strict liability
or negligence claim. See, e.g., Philip Morris USA, Inc. v. Douglas,
110 So. 3d
419, 430 (Fla. 2013); Philip Morris USA, Inc. v. Santoro,
298 So. 3d 630, 636
(Fla. 4th DCA 2020).
3
we don't have, the defense when I say ‘we,’ we don't have a
burden to prove to you that she was not addicted. Do you
understand what I'm saying?
PROSPECTIVE JUROR 8: Yes.
DEFENSE COUNSEL: Is it fair that you would want us to prove
to you that she was not addicted if the evidence is that she
smoked every day?
PROSPECTIVE JUROR 8: No.
Given Prospective Juror 8’s responses, the trial court made further
inquiry:
TRIAL COURT: Because I thought you were saying before that
you felt if someone smoked every day, they're addicted, and
because the tobacco company doesn't have to prove she's not
addicted, it would not be fair for you to even be on the jury. Now
you are saying it would be case by case. That seems to -- you
want to think about it a little more.
PROSPECTIVE JUROR 8: So I would say it would be case by
case. I will take that back, and I'll say it's case by case because,
yes, they can be addicted, but they could stop cold turkey if they
had the willpower to do it or the proper medical care.
Defense counsel followed up to further clarify Prospective Juror 8’s
position:
DEFENSE COUNSEL: And I think what the judge and I were
hearing is that you would expect us to prove to you she was not
addicted; is that fair?
PROSPECTIVE JUROR 8: Yes.
DEFENSE COUNSEL: Even though we don’t have a burden?
4
PROSPECTIVE JUROR 8: Exactly.
DEFENSE COUNSEL: Okay. And that’s something because of
who you are?
PROSPECTIVE JUROR 8: Um-hum (affirmative).
At the conclusion of jury selection, defendants challenged Prospective
Juror 8 for cause, given her statements and responses during voir dire.
Defense counsel argued that Prospective Juror 8 “said that we have to
disprove addiction after it was explained to her again and again that we have
no burden.” The trial court disagreed with that characterization of the
prospective juror’s statements, and denied defendants’ for-cause challenge. 3
Gloger’s counsel countered that the juror’s testimony on addiction was merely
her opinion; instead, the pertinent question was whether the juror would be
“fair and impartial and listen to the evidence” which—according to counsel—
the juror confirmed she would do if chosen to sit on the jury.
Because the for-cause challenge was denied, defendants were
required to use a peremptory challenge to strike Prospective Juror 8.
Appellants eventually used their allotted peremptory challenges and
requested an additional peremptory to strike another specifically identified
3
Defense counsel sought to present the trial court with a transcript of the
relevant portion of Prospective Juror 8’s statements and responses, but the
trial court declined to review it.
5
juror (prospective juror 131). The trial court denied the request for an
additional peremptory challenge, and as a result, prospective juror 131
served on the jury.
Ultimately, the jury returned a verdict of compensatory damages in the
amount of $15 million, and punitive damages in the amount of $27.5 million
($11 million against PM USA and $16.5 million against RJ Reynolds), for a
total verdict of $42.5 million. Judgment was entered upon the verdict, and this
appeal followed. We review the trial court’s denial of the for-cause challenge
for an abuse of discretion. See Hedvall v. State,
283 So. 3d 901, 913 (Fla. 3d
DCA 2019).
ANALYSIS AND DISCUSSION
As the Florida Supreme Court has observed:
Florida . . . adhere[s] to the general rule that it is reversible error
for a court to force a party to use peremptory challenges on
persons who should have been excused for cause, provided the
party subsequently exhausts all of his or her peremptory
challenges and an additional challenge is sought and denied.
Matarranz v. State,
133 So. 3d 473, 483 (Fla. 2013) (quoting Hill v. State,
477 So. 2d 553, 556 (Fla. 1985)). A trial court’s error in denying a for-cause
challenge “cannot be harmless because it abridged appellant's right to
peremptory challenges by reducing the number of those challenges available
[to] him.” Hill,
477 So. 2d at 556.
6
Florida law requires that a jury be free of “any element of prejudice for
or against either party,” Matarranz,
133 So. 3d at 484. To achieve such a
laudable goal, “[a] juror must be excused for cause if any reasonable doubt
exists as to whether the juror possesses an impartial state of mind,” Smith v.
State,
699 So. 2d 629, 635 (Fla. 1997). When evaluating a for-cause
challenge, the trial court must look to the “questions posed to and the answers
received from the juror to determine whether the juror's responses are
‘equivocal enough to generate a reasonable doubt’ as to the juror's fitness to
serve.” Hedvall, 283 So. 3d at 912 (quotation omitted). See also Singer v.
State,
109 So. 2d 7, 23-24 (Fla. 1959) (holding “if there is basis for any
reasonable doubt as to any juror's possessing that state of mind which will
enable him to render an impartial verdict based solely on the evidence
submitted and the law announced at the trial he should be excused on motion
of a party, or by the court on its own motion”); Nash v. Gen. Motors Corp.,
734 So. 2d 437, 440 (Fla. 3d DCA 1999) (“When any reasonable doubt exists
as to whether a juror possesses the state of mind necessary to render an
impartial verdict based solely on the evidence submitted and the instructions
on the law given to her by the court, she should be excused.”)
Furthermore, “[c]lose calls involving challenges to the impartiality of
potential jurors should be resolved in favor of excusing the juror rather than
7
leaving doubt as to impartiality,” Straw v. Associated Doctors Health and Life,
728 So. 2d 354, 356 (Fla. 5th DCA 1997) (quoting Goldenberg v. Reg’l Import
and Exp. Trucking Co., Inc.,
674 So. 2d 761, 764 (Fla. 4th DCA 1996)),
because “if error is to be committed, let it be in favor of the absolute
impartiality and purity of the jurors—which is interpreted to mean that the
mind of the proposed juror should not contain any element of prejudice for or
against either party in a cause to be tried before him.” Matarranz,
133 So. 3d
at 484 (citations omitted).
While we recognize the trial court’s unique vantage point in the
determination of juror bias, and the corresponding deference accorded the
trial court’s determination, such deference is not without limits. The instant
case presents just such an instance in which there was plainly a reasonable
doubt about Prospective Juror 8’s ability to be fair and impartial and to follow
the law. Under these circumstances, the trial court erred in denying
defendants’ for-cause challenge, requiring defendants to use a peremptory
challenge to strike the prospective juror. 4
4
After exhausting their allotted peremptory challenges, defendants requested
an additional peremptory challenge which defendants sought to use to strike
another juror whom they objected to. This request was denied by the trial
court, and that objected-to juror ultimately served on the jury. This issue has
thus been properly preserved. See Trotter v. State,
576 So. 2d 691 (Fla.
1990); Hedvall v. State,
283 So. 3d 901 (Fla. 3d DCA 2019).
8
Turning to the merits of the claim, Prospective Juror 8 stated during jury
selection that she believed anyone who smoked every day was addicted to
smoking, and even after it was explained—and she acknowledged—that
defendants did not have the burden of proof on this issue, the prospective
juror indicated she would “expect [defendants] to prove” Mrs. Gloger “was not
addicted” to cigarettes.
It is true that, in follow-up questioning by the trial court itself,
Prospective Juror 8 indicated she would have to consider the question of
addiction on a case-by-case basis:
TRIAL COURT: Because I thought you were saying before that
you felt if someone smoked every day, they're addicted, and
because the tobacco company doesn't have to prove she's not
addicted, it would not be fair for you to even be on the jury. Now
you are saying it would be case by case. That seems to—you
want to think about it a little more.
PROSPECTIVE JUROR 8: So I would say it would be case by
case. I will take that back, and I'll say it's case by case
because, yes, they can be addicted, but they could stop cold
turkey if they had the willpower to do it or the proper medical
care.
(Emphasis added.)
While the prospective juror responded that she would “take back” her
earlier statements and would decide the question of addiction on a case-by-
case basis, one cannot ignore the stark contrast with her initial responses to
9
questions on this issue, which cast serious doubt on her suitability to sit as a
juror in this case. Importantly, and as the Matarranz Court observed:
Initial reactions and comments from a prospective juror offer a
unique perspective into whether an individual can be fair and
unbiased. Here, the Juror's responses clearly indicated that she
was not suited to serve in this trial. It was only after skillful
lawyering and questioning that the process produced a
contradiction from the Juror.
***
Any lawyer who has spent time in our courtrooms, whether civil
or criminal, has experienced the frustration of prospective jurors
expressing extreme bias against his or her client and then
recanting upon expert questioning by the opposition. . . . When
a juror expresses his or her unease and reservations based upon
actual life experiences, as opposed to stating such attitudes in
response to vague or academic questioning, it is not appropriate
for the trial court to attempt to “rehabilitate” a juror into rejection
of those expressions—as occurred here. At no point should
prospective jurors feel compelled to reject genuine feelings
regarding actual life experiences because courts or counsel have
engaged in a dialogue that generates embarrassment, nor
should our courts empanel jurors who maintain attitudes and
feelings regarding the issue currently before the court that are
anything but impartial.
Matarranz,
133 So. 3d at 490. See also Hamilton v. State,
547 So. 2d
630 (Fla. 1989) (reversing first-degree murder conviction for a new trial,
where prospective juror stated defendant would have to submit evidence to
overcome juror’s preconceived belief of defendant’s guilt, creating
reasonable doubt of her ability to follow the law and to sit as a fair and
impartial juror; this reasonable doubt was not overcome by juror’s eventual
10
statement that she could base her verdict on the evidence at trial and the
law); Salgado v. State,
829 So. 2d 342, 345 (Fla. 3d DCA 2002) (reversing
for new trial where prospective juror’s responses to court and counsel’s
questioning created a reasonable doubt as to his ability to be a fair and
impartial juror, even though the juror eventually stated he would follow the
law).
Moreover, Prospective Juror 8’s responses to the court’s follow-up
questioning merely indicated that she would decide on a case-by-case basis;
she did not alter her responses on the question of which party must prove (or
disprove) the element of addiction. This was made plain by defense counsel’s
final questioning of the prospective juror, which immediately followed the
above inquiry by the trial court:
DEFENSE COUNSEL: And I think what the judge and I were
hearing is that you would expect us to prove to you she was
not addicted; is that fair?
PROSPECTIVE JUROR 8: Yes.
DEFENSE COUNSEL: Even though we don’t have a burden?
PROSPECTIVE JUROR 8: Exactly.
DEFENSE COUNSEL: Okay. And that’s something because
of who you are?
PROSPECTIVE JUROR 8: Um-hum (affirmative).
(Emphasis added.)
11
Simply stated, given her responses to questioned and personal
experiences 5 discussed during jury selection, there was a reasonable doubt
as to whether Prospective Juror 8 could set aside her preconceived belief
that a daily smoker is addicted and that defendants bore the burden of proving
the smoker was not addicted. See Hill,
477 So. 2d at 556 (explaining that a
juror should be excused if one side has to overcome a preconceived belief);
Salgado
829 So. 2d at 344 (“A juror is not impartial when one side must
overcome a preconceived opinion in order to prevail.”) (quotation omitted);
Nash,
734 So. 2d at 440 (explaining that a prospective juror must be excused
where there is reasonable doubt about her “ability to follow the law”);
Weinstein Design Grp., Inc. v. Fielder,
884 So. 2d 990, 995 (Fla. 4th DCA
2004) (explaining that excusal is required when one party is starting the trial
with “the edge” in the juror’s mind).
CONCLUSION
The trial court erred in denying defendants’ for-cause challenge of
Prospective Juror 8 and further erred in denying defendants’ request for an
additional peremptory challenge after defendants struck Prospective Juror 8
5
During jury selection, Prospective Juror 8 recounted that her father and
grandfather had passed away from lung cancer associated with smoking.
12
peremptorily, exhausting all their peremptory challenges. We therefore
reverse and remand for a new trial.6
6
Although we reverse for a new trial on this single basis, we note that one of
the other issues raised by appellants was that the trial court erred in
permitting plaintiff’s counsel, during cross-examination of defendants’ expert,
to recite in front of the jury the contents and conclusions of a study on the
harmful effects of e-cigarettes in the absence of the witness’ recognition, or
the trial court’s finding, of authoritativeness. The e-cigarettes evidence was
presented during the punitive damages phase of trial and relevant to
appellants’ theory that they had attempted to make cigarettes safer. Section
90.706, Florida Statutes (2019) provides:
Statements of facts or opinions on a subject of science, art, or
specialized knowledge contained in a published treatise,
periodical, book, dissertation, pamphlet, or other writing may be
used in cross-examination of an expert witness if the expert
witness recognizes the author or the treatise, periodical, book,
dissertation, pamphlet, or other writing to be authoritative, or,
notwithstanding nonrecognition by the expert witness, if the trial
court finds the author or the treatise, periodical, book,
dissertation, pamphlet, or other writing to be authoritative and
relevant to the subject matter.
The expert witness did not recognize the study as authoritative, nor did the
trial court make a finding of authoritativeness. Absent the requisite predicate
of authoritativeness under section 90.706, it was error for the trial court to
permit plaintiff’s counsel to recite to the jury, during cross-examination of the
defendants’ expert witness, “[s]tatements of facts or opinions” contained
within the study on the harmful effects of e-cigarettes. Call v. Tirone,
522 So.
2d 533, 534 (Fla. 3d DCA 1988) (holding: “It is settled by statute, case law,
and treatises, that statements contained in medical literature cannot be used
to cross-examine a witness unless the literature is established to be a reliable
authority by the testimony or admission of the witness or by other expert
testimony or by judicial notice.”); Myron By and Through Brock v. Doctors
Gen. Hosp.,
704 So. 2d 1083, 1092 (Fla. 4th DCA 1997) (holding “the
treatises should not have been used in cross-examination unless either the
expert [witness] or the trial court recognized their authoritativeness. Since
13
neither did, it was error to permit cross-examination using the treatises”);
Brown v. Crane, Phillips, Thomas & Metts, P.A.,
585 So. 2d 947, 948 (Fla. 2d
DCA 1991) (reversing for new trial, holding “it was error to permit the defense
attorney to read portions of a medical text in the presence of the jury while
[plaintiff’s expert] was under cross-examination. [Plaintiff’s expert] was
unfamiliar with the chapter and did not recognize the text as being
authoritative. Further, the defendants failed to establish independently the
authoritativeness of the author or the text.”)
14
