R. J. Reynolds Tobacco Company v. Andy R. Allen Sr., as Personal Rep. etc. ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
R.J. REYNOLDS TOBACCO
COMPANY and PHILIP
MORRIS USA INC.,
Appellants,
v. CASE NO. 1D15-4197
ANDY R. ALLEN SR., as
Personal Representative for the
Estate of PATRICIA L. ALLEN,
Appellee.
_____________________________/
Opinion filed October 18, 2017.
An appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.
Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley,
Prichard, Parrish, Knight & Jones, Jacksonville, for Appellant R.J. Reynolds
Tobacco Company.
Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for Appellant
Philip Morris USA Inc.
Celene H. Humphries, Steven L. Brannock, Philip J. Padovano, Maegen P. Luka,
and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory D. Prysock and
Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, for Appellee.
ON MOTION FOR REHEARING
BILBREY, J.
We grant rehearing on the court’s own motion, withdraw our previous
opinion issued February 24, 2017, and substitute this opinion in its place. In this
Engle-progeny case,1 Appellants raise four issues in their challenge to the final
judgment which awarded Appellee $3,094,000 in compensatory damages, jointly
and severally, and awarded Appellee $7,755,415 in punitive damages against each
Appellant. Finding no error we affirm.
Allegations of Juror Misconduct
Appellants first contend that the trial court erred in not dismissing a juror
during trial or for not granting the Appellants’ post-trial motion for new trial based
on the juror’s alleged failure to disclose bias against tobacco companies during
jury selection. The parties agree that the trial court’s denial of a motion to dismiss
a juror and denial of new trial based on allegation of juror concealment of bias are
reviewed for abuse of the trial court’s discretion. Villalobos v. State, 143 So. 3d
1042, 1046 (Fla. 3d DCA 2013). “Indeed, Florida courts give great deference to
such decisions because trial judges are in the unique position to evaluate the
practices of the attorneys during voir dire and to determine what factors were
material in jury selection.” Morgan v. Milton, 105 So. 3d 545, 549 (Fla. 1st DCA
2012).
1 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
2
When jury selection began, the trial court explained the process to the panel
of prospective jurors, including explaining a juror questionnaire prepared by the
Appellants. The court asked the jurors “to take seriously the questionnaire and
answer the questions as truthfully and fully as you can.” Prospective juror Michael
Taylor completed his questionnaire. Mr. Taylor checked the areas in which he had
worked or received training or education, including “Tobacco/Cigarette Industry,”
“Addiction or substance abuse,” and “Smoking cessation.” In response to the
request to “explain,” Mr. Taylor wrote “Tobacco former smoker, substance
tobacco” and “ex-smoker 28 years/5 clean.” In response to a question regarding
his “smoking status,” Mr. Taylor circled “Former Smoker.” He gave details of his
former smoking behaviors, including his start at age 13, the 28 years he was a
smoker, and that he tried to quit “many” times. He also described his family’s
history of smoking, including the particular relatives who smoked, what brands
they smoked, and the heavy amounts that they smoked. Mr. Taylor indicated in the
questionnaire that he thought his minor son suffered from smoking-related asthma.
When asked in question 30 his opinion of smokers, Mr. Taylor wrote: “Addicted
but accountable for their choices.” In answer to question 31 about his opinion of
“a lawsuit against a tobacco company,” Mr. Taylor wrote that he “must know the
facts to judge.” When asked in question 32 his “opinion, if any, of cigarette
companies,” Mr. Taylor wrote, “they are a business.”
3
Jury selection spanned three days. The parties point to only one excerpt in
the transcripts of the jury selection showing Mr. Taylor being questioned
individually. When asked by Appellee’s trial counsel about his smoking history,
Mr. Taylor replied, “I smoked 28 years, addicted to nicotine, quit on Chantix 2008.
Smoked a pack a day.” Mr. Taylor was never individually questioned by
Appellants’ trial counsel. No preemptory or for cause challenges were directed at
Mr. Taylor, and he was selected as a member of the jury.
On the fourth day of trial Appellants’ trial counsel raised the allegations of
juror misconduct by Mr. Taylor in a written motion seeking to have him removed
from the jury. The motion alleged “personal and deep-seated antagonism and bias
against Defendants” based on social media postings Mr. Taylor had purportedly
made on the internet in the past. The trial continued, and a few days later counsel
for Appellee filed a written response. The trial court heard argument on the motion
outside the presence of the jury, and after taking the matter under advisement,
denied the motion to dismiss Mr. Taylor from the jury. After the jury returned
verdicts for compensatory and then punitive damages for the Appellee, the trial
court entered a detailed order setting forth the basis for denying the motion to
remove Mr. Taylor.
After the jury verdicts, the Appellants moved for a new trial based on the
same allegations raised in their motion to dismiss Mr. Taylor from the jury. After
4
receiving a response from Appellee and holding a hearing on the motion for new
trial, the trial court denied that motion. At no time did Appellants seek to further
voir dire or interview Mr. Taylor regarding the allegations of bias.
The trial court thoroughly analyzed this issue in its orders denying the
dismissal of Mr. Taylor and denying a new trial. The three-part standard the trial
court correctly used was given in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla.
1995). In De La Rosa, the Florida Supreme Court stated the test for whether a new
trial is warranted based on juror concealment, “First, the complaining party must
establish that the information is relevant and material to jury service in the case.
Second, that the juror concealed the information during questioning. Lastly, that
the failure to disclose the information was not attributable to the complaining
party’s lack of diligence.” Id. at 241. The first prong of the De La Rosa standard
was undisputed below, and the trial court found that the postings were relevant and
material to Mr. Taylor’s jury service.2
As to the second prong of the De La Rosa standard, the trial court found that
2 How the trial court knew the postings were Mr. Taylor’s, as opposed to someone
else’s, without interviewing him is therefore not an issue for our consideration.
Additionally, the remoteness in time of the postings, one over a year and the other
over five years before the trial, and whether they remained material is not for our
consideration. Cf. Leavitt v. Krogen, 752 So. 2d 730 (Fla. 3d DCA 2000) (holding
non-disclosure of an over ten year old claim not material). Finally, the post-trial
postings mentioned in the dissent do not alter the test. Even if the post-trial
postings were relevant and material, the other two prongs of the De La Rosa test
must be met.
5
Mr. Taylor did not conceal any bias against the Appellants. In the order denying
Appellants’ motion to dismiss Mr. Taylor, the trial court stated,
First, Juror Taylor’s response that cigarette smokers are “addicted but
accountable for their choices” is not inconsistent with his social media
posts. In both posts Juror Taylor discussed his overcoming of
smoking addiction. Similarly, his responses to the other two
questionnaire questions are not contradictory of his social media
posts. The Defendants appear to argue that Juror Taylor was
requested to elaborate more in his response to the questionnaire.
However, questions 30-32 of the juror questionnaire are subjective
questions that are broad enough to summon a wide array of responses.
The questions certainly do not clearly or squarely ask for the detailed
level of information present in Juror Taylor’s social media posts. The
questions do not specifically require the jurors to disclose whether
they harbor any negative feelings towards tobacco companies.
The questionnaire did not ask unequivocal questions regarding bias, and Mr.
Taylor did not provide unequivocal answers, which distinguishes the facts here
from Roberts ex rel. Estate of Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002), cited
by Appellants. In Roberts, the Florida Supreme Court required a new trial where a
juror failed to disclose that she had been involved in prior litigation when asked if
she had ever been a party to a lawsuit. See also De La Rosa, 659 So. 2d at 241.
The questions and answers at issue here were not the clear, black or white, yes or
no, type of questions at issue in Roberts. Mr. Taylor cannot be blamed for “not
being more forthcoming given the very basic questions asked.” Gamsen v. State
Farm Fire & Cas. Co., 68 So. 3d 290, 294 (Fla. 4th DCA 2011); see also Hood v.
6
Valle, 979 So. 2d 961 (Fla. 3d DCA 2008).3 The trial court did not abuse its
discretion in finding that the second prong of the De La Rosa standard was not
met.
The trial court also found that there was insufficient due diligence exercised
by Appellants to meet the third prong of the De La Rosa standard. As the Court
explained in Roberts, “resolution of this ‘diligence’ issue requires a factual
determination regarding whether the explanations provided by the judge and
counsel regarding the kinds of responses which were sought would reasonably
have been understood by the subject jurors to encompass the undisclosed
information.” 814 So. 2d at 343. In making the factual determination, in the order
denying the dismissal of Mr. Taylor from the jury, the trial court found,
[Q]uestions 30-32 of the juror questionnaire were broad enough to
elicit a wide array of responses. Juror Taylor’s responses to these
three questions raised numerous issues that would logically call for
follow-up questions. Moreover, Juror Taylor indicated on the
questionnaire that he was a former heavy smoker of twenty-eight
years, and had been “clean” for the past five years. He also stated that
his father and both grandfathers were lifelong heavy smokers, leading
to health issues. Juror Taylor indicated on the questionnaire that he
attributed his son’s asthma to smoking-related causes.
3 If Mr. Taylor had intended to be a stealth juror leading a runaway jury, he did a
poor job of concealing it by providing answers in the questionnaire that he was a
28-year former smoker now “clean” for five years, mentioning his many attempts
to quit smoking, and acknowledging his family members who smoked or who he
believed were adversely affected by smoking. Cf. John Grisham, The Runaway
Jury (1996) (a work of fiction where a prospective juror actively hid his past and
hid strongly held beliefs in order to be selected as a juror and influence a
substantial verdict against a tobacco company).
7
The trial court also mentioned Mr. Taylor’s verbal response detailing his smoking
history.
The trial court found that due diligence required follow-up questions to Mr.
Taylor, a long-time smoker now five years “clean,” to examine whether he
“harbored no ill-feelings toward tobacco companies.” Due diligence is lacking
when “at best, an ambiguity may exist which was not explored.” Lugo v. State, 2
So. 3d 1, 15 (Fla. 2008). The trial court noted that it did not impose time limits on
the voir dire. The trial court concluded that Appellants’ likely strategic decision
not to question Mr. Taylor did not satisfy due diligence.
Given Mr. Taylor’s disclosed personal and family history with cigarette
smoking, along with his answers to questions 30 through 32 in the questionnaire,
we find no abuse of discretion in the trial court determining that Mr. Taylor should
have been asked clear and direct questions during jury selection regarding any bias
against tobacco companies. As two prongs of the De La Rosa standard are lacking,
there was no error in the trial court’s refusal to dismiss Mr. Taylor or grant a new
trial based on his serving on the jury.
Comparative Fault
Appellants next argue that the trial court erred by not reducing the
compensatory damages following the jury’s finding that the decedent was seventy
percent at fault. Although there is a split of authority among the Florida district
8
courts, this court held in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla.
1st DCA 2013), that apportionment of fault is not required by section 768.81,
Florida Statutes, where a jury finds — as it found at trial here — that a defendant
committed intentional torts of fraudulent concealment and conspiracy to
fraudulently conceal. In R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487(Fla. 4th DCA 2015), rev. granted, Schoeff v. R.J. Reynolds Tobacco Co., 2016
WL 3127698 (Fla. May 26, 2016), the Fourth District held contrary to Sury that
fault should be apportioned in what that court considered to be a products liability
action. We are obligated to follow Sury and in doing so hold that the trial court did
not err when it refused to apportion fault.4
Punitive Damages
Appellants’ third issue is that the trial court applied the incorrect version of
the punitive damages statutes resulting in an incorrect jury instruction on the
standard for awarding punitive damages and an award of punitive damages in
excess of that permitted by law. Chapter 99-225, section 22, Laws of Florida,
amended section 768.72(2)(b), Florida Statutes, to require a “conscious disregard”
for the safety of others rather than the previous standard of “reckless disregard,” to
4 We also distinguish the situation here from R.J. Reynolds Tobacco Co. v. Hiott,
129 So. 3d 473 (Fla. 1st DCA 2014). Unlike in Hiott, the jury here was not misled
by the trial court or counsel regarding the reduction of compensatory damages. In
fact the jurors here were repeatedly told that if they returned a verdict on the two
fraud counts then damages could not be reduced by the percentage of fault
attributed to the decedent.
9
allow for an award of punitive damages. Chapter 99-225, section 23, amended
section 768.73, Florida Statutes, to impose a stricter cap on punitive damages and
to require findings by the jury to overcome that cap. Appellants contend the post-
1999 version of the statute applies here and that the trial court committed error by
applying the earlier version of the statute.
Typically, the applicable version of a statute is the one “in effect when the
cause of action arose.” D’Anglo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla.
2003) (citing Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA
2002)); §§ 768.72(4) & 768.73(5), Fla. Stat. In many wrongful death actions, the
cause of action accrues on the date of a decedent’s death. Nationwide Mut. Fire
Ins. Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994). However, Engle-
progeny cases are different. Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.
2006); see also R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla.
2016) (applying manifestation rather than accrual of cause of action to establish
membership in the Engle class).
To be a member of the Engle class and to take advantage of the findings in
Engle, a plaintiff’s (or plaintiff’s decedent’s) “symptoms of a tobacco-related
disease or medical condition” must have manifested by November 21, 1996.
Ciccone, 190 So. 3d at 1030; see also Engle, 945 So. 2d at 1275. The testimony at
trial was that Mrs. Allen’s chronic obstructive pulmonary disease (COPD)
10
manifested before November 21, 1996, so she qualified for the res judicata benefits
of the Engle class. See Ciccone; Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d
1219, 1226-27 (Fla. 2016).5
Here litigation commenced on September 18, 2007, when Mrs. Allen was
still living. The initial complaint alleged that Mrs. Allen was a member of the
Engle class and entitled to benefit from the Engle findings. See Ciccone; Philip
Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013). The initial complaint
was filed within the one-year period during which the Florida Supreme Court
allowed individual claims following the decertification of the class in Engle. 945
So. 2d at 1277. Mrs. Allen died on February 24, 2009, and Appellee continued the
litigation which had been commenced before her death by filing a third amended
complaint with the wrongful death claim.
Section 768.20, Florida Statutes, provides guidance and states in part,
“When a personal injury to the decedent results in death, no action for the personal
injury shall survive, and any such action pending at the time of death shall abate.”6
5 Even using the typical test for accrual of a cause of action for a latent or
“creeping disease,” the cause of action here likely accrued by September or
October 1996, when Mrs. Allen was diagnosed with early COPD and
recommended to undertake smoking cessation treatment. See Carter v. Brown &
Williamson Tobacco Corp., 778 So. 2d 932, 936-37 (Fla. 2000); Ciccone, 190 So.
3d at 1042-46 (Polston, J., dissenting). A follow-up exam on November 18, 1996,
specifically tied her early COPD to continued tobacco use.
6 Other than the adoption of gender neutral language in 1997, this statute has not
11
When Mrs. Allen died, her personal injury case did not “self-destruct like the
secret message on a rerun of ‘Mission Impossible.’” Niemi v. Brown &
Williamson Tobacco Co., 862 So. 2d 31, 33 (Fla. 2d DCA 2003). Instead it abated
until a personal representative was appointed and the existing suit was amended to
add the wrongful death claim. Appellee was not required to file a new suit, but
instead was allowed to proceed in the same suit initiated by Mrs. Allen. See
Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013). Just as the
wrongful death action was allowed to relate back to date of the Engle class for
statute of limitations purposes, the applicable statutory law also relates back to the
Engle class. See In re: Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014)
(discussing relation back of wrongful death action following plaintiff/smoker’s
death). This date had to be before November 21, 1996, so the post-1999 revisions
to the punitive damages statutes do not apply.
In Schoeff, the Fourth District had occasion to consider which version of the
comparative fault statute applied to the wrongful death action. 178 So. 3d at 492
n.3. Although that case began as a wrongful death action, the Schoeff court held
that the version of the statute in effect at the time the decedent was diagnosed with
lung cancer was the applicable version, since that was when the cause of action
accrued. Id. That logic is even more persuasive here where the case began with
been altered since it was adopted in Chapter 72-35, Laws of Florida; so the
applicable year of section 768.20 is not at issue.
12
Mrs. Allen as a plaintiff and was converted to a wrongful death action after she
died. After her causes of action accrued, Mrs. Allen had a substantive right to seek
punitive damages under the then-existing standard. See Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Application of the post-1999
amendments to the punitive damages statute to Appellee’s derivative claim would
impair those substantive rights. Id.; see also Celotex Corp. v. Meehan, 523 So. 2d
141, 147 (Fla. 1988) (“wrongful death action is derivative of the injured person’s
right, while living, to recover personal injury”) (citing Variety Children’s Hospital
v. Perkins, 445 So. 2d 1010 (Fla. 1983)).7
Due Process
Appellants’ final issue is raised only for preservation purposes, that the use
of the Engle findings in the trial court violated due process. This argument has
been definitively rejected by the Florida Supreme Court in Douglas. 110 So. 3d at
430-31.
Conclusion
7 Additionally it would arguably be inequitable to subject the Appellee to the
higher burden and potentially lower damages of the revised punitive damages
statutes, when Mrs. Allen would have proceeded under the old statutes had she
survived. The Florida Supreme Court’s holding in Martin v. United Security
Services, Inc., 314 So. 2d 765 (Fla. 1975), one of the first cases interpreting the
then new Wrongful Death Act, is instructive. There the Court allowed punitive
damages in a wrongful death case holding, “We see no reason why United Security
should escape possible liability for punitive damages merely because its employee
killed rather than injured her.” Id. at 772.
13
Having determined that no error was committed by the trial court, the
judgment is affirmed.
AFFIRMED.
WINOKUR, J., CONCURS IN PART AND CONCURS IN RESULT ONLY
WITH OPINION; OSTERHAUS, J., DISSENTS WITH OPINION.
14
WINOKUR, J., concurring in part and concurring in result only.
I concur in the majority opinion with respect to all issues except the juror
misconduct issue. With regard to the juror misconduct issue, I concur in result
only.
In their Motion for Rehearing En Banc or Certification to the Florida
Supreme Court, Appellants argue that the decision here “establishes an
unreasonable standard for uncovering juror bias that would turn voir dire into a
long series of hostile questions by counsel worried about being faulted for
displaying insufficient precision and diligence.” This argument has impelled me to
explain why I vote to affirm with regard to the juror concealment issue.
Prospective jurors were asked by questionnaire for their “opinion, if any of
cigarette companies.” Juror Taylor gave a bland response: “they are a business,” a
fact rather than an opinion. After trial started, Appellants uncovered social media
postings from Taylor that reflected antagonism toward tobacco companies. One of
these messages was five and one-half years old, and the other was posted five
months prior to trial. Appellants’ argument, and the dissenting opinion, rests
squarely on the presumption that the posts reflected precisely the opinions of
Taylor at the time of jury selection. And because those opinions are inconsistent
with Taylor’s answers at jury selection, Appellants conclude that he was guilty of
concealing his “true opinions” of tobacco companies.
15
Experience concerning personal opinions belies this argument. Even if these
messages accurately reflected Taylor’s opinion at the time he wrote them, nothing
shows that they reflected his views at the time of trial, other than a presumption
that his opinion was unchanged. “The foolish and the dead alone never change
their opinion.” James Russell Lowell, My Study Windows 166 (Boston: J.R.
Osgood & Company 1874).
For this reason, I cannot subscribe to the view that cases where a prospective
juror has given false factual information during jury selection control here. For
instance, the jurors in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), were
asked whether they or family members or close friends had been a party to a
lawsuit. The answer to this question is either “yes” or “no,” and the answer is
either true or false. A prospective juror who fails to answer this question truthfully
is guilty of concealment. I respectfully disagree with the dissent that the question,
“[w]hat, if any, opinion do you have of cigarette companies[?],” is so “simple” and
“straightforward” that it necessarily calls for the same type of certain, verifiable
answer as the one to the question about prior lawsuits. I do not believe we should
presume, as Appellants do, that any past expression of opinion necessarily reflects
a “true opinion” and that anything contrary to that past expression constitutes
concealment of that true opinion.
The dissent finds the request for an opinion about tobacco companies to be a
16
“simple, straightforward question” that “[e]ven grade-schoolers understand.” Infra
at 25-26. To demonstrate, the dissent proposes responses to opinion inquiries such
as “I love my job” or “I hate the Gators.” I do not share the dissent’s contention
that personal opinions can always be expressed with such simplicity and certainty.
It leaves no room for mixed feelings, evolving views, or even the possibility that a
person might be more circumspect in expressing his opinions when giving sworn
answers in jury selection than he is writing Facebook posts.
A juror can certainly be dismissed for concealing an opinion during jury
selection. But dredging up past communications, declaring them “true opinion,”
and comparing the past communication with answers at jury selection does not
necessarily demonstrate concealment. The surest way to determine whether Taylor
continued to hold the views expressed in the online messages would have been to
ask him. Appellants never asked to interview Taylor after they discovered his
messages. Instead, they asked this Court to presume that the opinions expressed in
these prior messages reflected Taylor’s views at the time of trial, and then fault
him for concealing those views.8 I am unwilling to make this presumption.
Florida Rule of Civil Procedure 1.431(h) permits post-verdict juror
8 Of course, one can argue based on the available circumstantial evidence
that Taylor’s questionnaire answers did in fact conceal his “true opinion.” But
given the capricious nature of personal opinions, a party asserting that new
information casts doubt on a juror’s expression of opinion at jury selection should
be required to interview the juror.
17
interviews when the party has grounds for a legal challenge to a verdict. “Where
there are reasonable grounds to believe concealment of a material fact has taken
place, a party is entitled to conduct a jury interview.” Singletary v. Lewis, 584 So.
2d 634, 636 (Fla. 1st DCA 1991). A court abuses its discretion in denying a juror
interview when a party comes forward with information that a juror concealed
relevant information at jury selection. See e.g. Westgate Palace, LLC v. Parr, 216
So. 3d 747 (Fla. 5th DCA 2017). While Rule 1.431(h) specifically refers to post-
verdict interviews, this procedure should have been employed here. See Villalobos
v. State, 143 So. 3d 1042, 1046 n.5 (Fla. 3d DCA 2014) (“In the more common
scenario, the juror’s nondisclosure of information is not discovered until after the
trial, resulting in a motion for new trial. Here, the nondisclosure was discovered
during the trial itself, and the issue is whether the court erred in not dismissing the
juror upon discovery of the undisclosed information. Under either scenario,
however, the analysis remains the same.”).
I find Appellants’ failure to attempt to confront Taylor after they discovered
those online messages far more relevant in affirming the trial court than their
failure to question him more thoroughly at voir dire.9 In order to allay any
9 I recognize that the trial court did not rely on this basis in denying
Appellants’ motion to dismiss Taylor, but we are obligated to affirm “if there is
any basis which would support the judgment in the record.” Dade Cty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). And the fact that Allen has
never made this argument on appeal does not alter this conclusion. See State v.
Pitts, 936 So. 2d 1111, 1133 (Fla. 2d DCA 2006) (explaining that “tipsy-
18
concerns that the opinion here places additional burdens on litigants during jury
selection to uncover bias, I do not join Judge Bilbrey’s opinion on this issue. I do,
however, vote to affirm on all issues.
coachman” rule applies “even if the specific basis for affirmance has not been
articulated by the appellee”).
19
OSTERHAUS, J. dissenting.
I would reverse for a new trial because the foreman of the jury did not
disclose his contempt for cigarette companies when asked directly during voir dire.
When asked during voir dire, “What, if any, opinion do you have of cigarette
companies, including [Defendants]?” the juror answered only: “[T]hey are a
business.” What the juror didn’t reveal was his history of posting sharply negative
views about tobacco companies on social media. Online, he called them leeches
and slaveholders who keep addicts in chains. Appellants only discovered the jury
foreman’s strong views about them after the trial began. At which point, they
immediately sought to remove him and empanel the juror alternate. But the trial
court denied the motion, as well as Appellants’ subsequent motion for a new trial.
Parties have a constitutional right to an impartial jury. Every prospective
juror has a duty to fully and truthfully answer questions asked of them during voir
dire. Venire members must not falsify any fact or conceal material information.
Because here, the foreman of the jury concealed his negative opinions of cigarette
companies when directly asked for his opinion of them during voir dire, I would
reverse and remand for a new trial.
20
I.
A.
Our tradition of trial by jury “necessarily contemplates an impartial jury
drawn from a cross-section of the community.” State v. Silva, 259 So. 2d 153, 160
(Fla. 1972). “[A]nything less than an impartial jury is the functional equivalent of
no jury at all,” City of Miami v. Cornett, 463 So. 2d 399, 402 (Fla. 3d DCA 1985),
dismissed, 469 So. 2d 748 (Fla. 1985), and impinges a party’s due process rights.
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The Due Process Clause
entitles a person to an impartial and disinterested tribunal in both civil and criminal
cases, . . . safeguard[ing] the two central concerns of procedural due process, the
prevention of unjustified or mistaken deprivations and the promotion of
participation and dialogue by affected individuals in the decisionmaking
process.”).
Courts and parties routinely vet prospective jurors with questions before the
trial to “assure the right to a fair and impartial trial by qualified jurors.”
McCauslin v. O’Connor, 985 So. 2d 558, 560 (Fla 5th DCA 2008); Fla. R. Civ. P.
1.431. This process is called “voir dire.” During voir dire, potential jurors have a
“duty . . . to make full and truthful answers . . . neither falsely stating any fact, nor
concealing any material matter.” Roberts ex rel. Roberts v. Tejada, 814 So. 2d
334, 342 (Fla. 2002) (quoting Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953)).
21
“Trial counsel and their clients are entitled to assume that a prospective juror will
truthfully answer the questions posed by the court or by the parties’ counsel.”
McCauslin, 985 So. 2d at 560. Concealment or failing to answer truthfully
amounts to misconduct that can be extremely prejudicial to a party’s procedural
rights. De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (quoting Loftin,
67 So. 2d at 192 (“full knowledge of all material and relevant matters is essential
to the fair and just exercise of the right to challenge either peremptorily or for
cause.”)).
A nondisclosure during a voir dire exam warrants a new trial under Florida
law if: (1) the undisclosed information is “relevant and material to jury service in
the case”; (2) the juror “concealed the information during questioning”; and (3) the
juror’s failure to disclose the information isn’t “attributable to the complaining
party’s lack of diligence.” De La Rosa, 659 So. 2d at 241. The failure to grant a
new trial under these circumstances is reversible error. See Kelly v. Cmty. Hosp.
of Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002).
B.
Appellants moved to dismiss Juror Michael Taylor in this case after
discovering, four days into a three-week trial in 2015, that he’d published social
media comments in 2009 and 2014 expressing contempt for cigarette companies.
He posted:
22
I quit smoking after 28 years. . . . All the time the government taxed
the crap out of me to pay for dumb sh-- I never agreed to. Their
excuse to avoid making tobacco companies to stop. These companies
and the government are best buddies. They are both le[e]ches on the
same people . . . addicts like me. Why the h---- do the uppity
intellectuals think they are better than the guy at the bottom and thus
tax his weakness? I think it is a sick way of easing their conscience
too!!
* * *
Set yourself free from the people who have you addicted. Stop paying
their fees just to feel normal. You do not have to quit alone. . . . The
only thing you are giving up is being a slave to some rich guy who
sells tobacco products. Break the chains.
(Emphasis added). Appellants argued to the trial court that Juror Taylor had
concealed his posted contempt for them during voir dire despite being asked
directly in a juror questionnaire. Every panel member was asked directly in a juror
questionnaire for their opinion of cigarette companies. In addition, the Court
admonished jurors during voir dire to “‘be honest’ and identify whether they had
‘bad feelings . . . against [the companies]’ that would affect the ‘ability to be fair
and impartial.’” Appellants claimed that they’d have stricken Juror Taylor for
cause because of his hostility toward them, or exercised a strike (they had left one
preemptory strike on the table) had they known his true views.
The trial court held a hearing on Appellants’ motion to remove Juror Taylor
and denied it. The trial court found that Juror Taylor’s posts suggested bias against
the tobacco parties. And no one disputed that his posts were both relevant and
material to his jury service. But the trial court declined to dismiss Juror Taylor
23
because it thought clear questions hadn’t been asked about his opinion of cigarette
companies during voir dire; Appellants’ counsel hadn’t been diligent about asking
the right questions. After denying the motion, Juror Taylor became the foreman of
the jury. The jury found Appellants liable. And the jury awarded an eight-figure
verdict to the plaintiff.
The trial court later denied Appellants’ motion for a new trial, which they
based not only upon the previous nondisclosures, but new online material. Post-
trial posts from Juror Taylor’s Facebook account gloated about the verdict, urged
that news be spread about it, and called tobacco companies “liable as Satan and
deserv[ing of] consequences for their actions.”10
II.
This appeal focuses on the last two prongs of De La Rosa’s three-prong test
for determining when a juror should be dismissed mid-trial for concealing
information during voir dire. De La Rosa, 659 So. 2d at 241. Appellants satisfied
the first De La Rosa prong when the trial court recognized that Juror Taylor’s pre-
10 The posts specifically read:
I have finally been released from jury duty. I was the foreman
November 3 thru 26th. Tobacco trial. Awarded $18.6M to the
plaintiff. (please share and inform others) . . . Tobacco companies
have lied to the public for over 60 years about how bad their products
are. . . . For anyone who doesn’t understand how the tobacco
companies can be held responsible, please re-read the above facts. . . .
Those who lead others to temptation are as liable as Satan and deserve
consequences for their actions as well.
24
trial, social media posts showed material bias against tobacco companies relevant
to his service on the jury. No one challenged that particular finding and the
evidence supports it.
The trial court denied Appellants’ motion to remove Juror Taylor based on
De La Rosa’s second and third prongs. The trial court ruled that Juror Taylor did
not conceal his opinions during voir dire. And it faulted Appellants for not
diligently asking for Juror Taylor’s negative opinions of them. But these
conclusions aren’t supported by the record. A juror “conceals” information where
he fails to provide information “squarely asked for.” Birch ex rel. Birch v. Albert,
761 So. 2d 355, 358 (Fla. 3d DCA 2000). Here, Question 32 of the juror
questionnaire asked: “What, if any, opinion do you have of cigarette companies,
including [Defendants]?” This question asked “squarely” for Juror Taylor’s
opinion of cigarette companies. But the trial court didn’t think so. It found
Question 32 ambiguous and “not specifically requir[ing] the jurors to disclose
whether they harbor[ed] any negative feelings toward tobacco companies”;
needing “[m]ore specific follow-up questions . . . for Juror Taylor to elaborate on
his views regarding . . . tobacco companies”; and as not reasonably “understood . .
. to encompass the scope and type of information that Juror Taylor provided in his
social media posts.”
But this is sheer applesauce. “What is your opinion of ____?” is a simple,
25
straightforward question that is asked, understood, and answered by virtually
everyone, everyday; as in: “What is your opinion of/what do you think of [fill in
the blank]—your job; your teacher; your lunch; President Trump; Lady Gaga;
Justin Bieber; iPhone 7; Windows 10; Hollywood; Wall Street; the Gators; the
Hurricanes; the Seminoles; and so on. Even grade-schoolers understand this
question, no problem. Everyone knows that it calls for a subjective personal
response about the question’s subject, whatever that opinion might be; as in “I love
my job,” “I hate the [Gators, Hurricanes, or Seminoles] (you pick ’em),” or
“School was ehh.”11 This question is particularly effective and easy to answer for
someone with strong opinions about a subject, like Juror Taylor. The disclosures
of other venire members prove this very point. See Roberts, 814 So. 2d at 346(“The information disclosed by other prospective jurors may be as important in any
particular inquiry by counsel, because the dynamics and context of the entire
process may define the parameters of that which should be disclosed.”). They gave
opinions of cigarette companies like: “all Evil”; “They are all predators”; “To say
11“Ehh” is slang and has been defined as “[t]he end all be all word used by teenage
males when speaking to their parents. Used as a response to questions which they
do not wish to answer.
Parent: how was school?
Son: ehh
Parent: did you have fun eating with your girlfriend after school?
Son: ehh.”
Http://www.urbandictionary.com/define.php?term=ehh (last visited Feb. 7, 2017).
26
they are the lowest form of capitalism is an insult to capitalism”; “They are
responsible for pushing the sales of a deadly product”; “Deserve what the[y] get”;
“They should not be able to produce such bad products that will cause harm to a
human being”; “I believe they knowingly misled the public about effects of
smoking that they knew were evident”; and “Big business that does not care the
damage they do to those that are addicted to their product.” Appellants could
effectively evaluate the fitness and prejudice of these prospective jurors because of
their truthful answers. Juror Taylor possessed similarly strong negative opinions,
but he concealed them. He didn’t answer Question 32 as due process demanded
and his performance cannot credibly be blamed on the question.
Juror Taylor had a responsibility to give his opinion of cigarette companies
truthfully and fully, without “concealing any material matter.” Roberts, 814 So. 2d
at 342 (quoting Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953)). See also Minnis
v. Jackson, 330 So. 2d 847, 848 (Fla. 3d DCA 1976) (“The well established rule is
that the failure of a juror to honestly answer material questions propounded to him
on voir dire constitutes bad faith requiring his disqualification from serving on the
jury in the case.”). The trial court had instructed the venire to answer all questions
“as truthfully and fully” as possible. It had also explained that it was “looking for”
prospective jurors with ill feelings toward tobacco companies or other
“preexisting” biases. At one point, the trial court also interrupted defense counsel
27
between questions to individual members of the venire to make sure that
prospective jurors knew exactly the sort of information they were required to
disclose. The trial court explained that the “whole idea is to find out if you have
preexisting views . . . in your background [that] would affect your ability to be fair
and impartial.” For example, “if you [have] some real bad feelings that you’ve had
for a long time against [cigarette] companies [that will always] be in the back of
your mind.”
Against this backdrop, Appellants were “entitled to assume” that Juror
Taylor gave his “opinion . . . of cigarette companies” fully and truthfully, just as he
was asked. McCauslin, 985 So. 2d at 560. But he didn’t. Tobacco companies
weren’t just “a business” to Juror Taylor, as he answered at voir dire. His online
readers knew that he really thought of them as slaveholders and leeches, essentially
as businesses that owned, consumed, and sucked the blood of other people for their
own advantage.12 His aspersion easily ranks among the worst opinions one can
have of something. And courts have found juror concealment in much closer cases
than this one. See, e.g., Nicholas v. State, 47 So. 3d 297, 301 (finding juror
concealment where a juror knew two witnesses but didn’t respond when the court
said, “If there’s something you think that we need to know about your background
12 See Meriam-Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/leech (last visited Feb. 7, 2017) (defining leeches as carnivorous or
bloodsucking worms).
28
or your life experience, let us know so that we can ask that question”); Wilson v.
State, 608 So. 2d 842, 843 (Fla. 3d DCA 1992) (finding juror concealed material
information by not responding to question “whether [she] could be impartial” when
she had “ill feelings against the State Attorney’s Office”). Due process required
Juror Taylor to reveal his contemptuous opinions of Appellants, so parties could
assess his fitness for service as an impartial factfinder and protect the integrity of
the trial. Whether Juror Taylor’s concealment was intentional or not, the process
required him to give full and frank answers. Roberts, 814 So. 2d at 343 (noting
that “a juror’s nondisclosure need not be intentional to constitute concealment”).
For these reasons, I cannot agree with my colleagues’ conclusion that Juror Taylor
didn’t conceal anything.
Second, I see no support for the trial court’s finding that Juror Taylor’s
nondisclosure was Appellants’ fault, attributable to their lack of diligence.
Appellants asked the right question. Question 32 asked for Juror Taylor’s “opinion
. . . of cigarette companies.” In responding, Juror Taylor had an obligation to
disclose his material, negative opinion about cigarette companies. Again, the trial
court is incorrect that Appellants’ questions needed to specifically ask for
“negative feelings” about tobacco companies or ask “[m]ore specific follow-up
questions.” Only a single clear question needed to be asked to require truthful and
complete responses from Juror Taylor and the 100+ other members of the venire in
29
this case (Juror Taylor was panel member #99), not repeated questions or magic
words. See Villalobos v. State, 143 So. 3d 1042, 1047 n.6 (Fla. 3d DCA 2014)
(due diligence doesn’t require further inquiry after a clear question is asked); Dery
v. State, 68 So. 3d 252, 255 (Fla. 2d DCA 2010) (finding no obligation to inquire
further after a question is squarely asked). Question 32’s straightforward request
for an “opinion, if any, of cigarette companies” was perfectly adequate to obtain
Juror Taylor’s full and truthful opinion of cigarette companies (just as his fellow
venire members disclosed).
And so, I would reverse because the trial court’s conclusions regarding
concealment and diligence aren’t supported by the record. Decisions based upon
findings unsupported by competent, substantial evidence constitute an abuse of
discretion. See, e.g., Russenberger v. Russenberger, 654 So. 2d 207, 217 (Fla. 1st
DCA 1995). Juror Taylor concealed his views of Appellants, casting reasonable
doubt about his ability to be fair and impartial. He should have been dismissed and
the alternate juror empaneled, even if the trial court considered the issue a close
call. See Nicholas, 47 So. 3d at 304 (“it is appropriate to remove a juror who has
been less than candid during voir dire”); Bell v. Greissman, 902 So. 2d 846, 847
(Fla. 4th DCA 2005) (close cases involving challenges to the impartiality of
potential jurors should be resolved in favor of excusing the juror rather than
leaving doubt as to impartiality).
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III.
Because Appellants were denied a proper jury, I would quash the final
judgment and remand for a new trial.
31