Barbara Reider v. Phillip Morris USA, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11494
________________________
D.C. Docket No. 3:09-cv-10465-WGY-JBT
BARBARA REIDER,
Plaintiff - Appellant,
versus
PHILLIP MORRIS USA, INC., et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 15, 2015)
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and ROSENTHAL, *
District Judge.
JORDAN, Circuit Judge:
*
Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
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We hold, for the reasons which follow, that a party’s post-trial claim that a
jury verdict is inconsistent does not preserve for appeal the separate and legally
distinct claim that the verdict was the result of an unlawful jury compromise. We
therefore affirm the zero damages verdict rendered by the jury in this action
brought by Barbara Reider against Phillip Morris USA for her husband’s tobacco-
related death. 1
I
Based on the death of her husband, Richard, Ms. Reider asserted claims of
fraudulent concealment, conspiracy, negligence, and strict liability against Phillip
Morris under Florida law. She sought compensatory damages under Florida’s
Wrongful Death Act, Fla. Stat. §§ 768.16–768.26, which in relevant part allows a
decedent’s surviving spouse to recover for the “loss of the decedent’s
companionship and protection” and “mental pain and suffering from the date of
injury.” § 768.21(2).
A
After a four-day trial, the jury found Phillip Morris comparatively liable for
Mr. Reider’s injuries and death, but awarded Ms. Reider no damages. Specifically,
the jury found that: (1) Mr. Reider had been addicted to cigarettes containing
nicotine; (2) Mr. Reider’s “addiction to cigarettes containing nicotine
1
We affirm, without discussion, the district court’s decision not to excuse a juror for cause.
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manufactured by Phillip Morris [was the] legal cause of his injuries and death”; (3)
Mr. Reider was 95% liable for his injuries and Phillip Morris was 5% liable; (4)
Mr. Reider did not detrimentally rely on Phillip Morris’ representations that
omitted or concealed material information about cigarettes’ health effects or
addictive nature; and (5) Ms. Reider sustained no damages resulting from her
husband’s injuries and death.
Upon receiving the verdict and before the district court excused the jury, Ms.
Reider made two arguments to the district court. The first was that “the verdict
[was] inconsistent with liability on questions one and two with the zero
damage[s].” The second was that “the jury did not follow [the district court’s]
instructions that they should not reduce the damages by the apportionment of
fault.” Ms. Reider asked the district court to “send [the jury] back to re-deliberate
purely on the amount of damages so we don’t have to bring in a new jury in the
event that we’re right.”
The district court denied Ms. Reider’s request because it did not believe that
the verdict was inconsistent or that one could assume from the verdict that the jury
had reduced damages based on the apportionment of fault. As the district court
viewed the trial evidence and the verdict, “[the jury] just didn’t think that [Ms.
Reider] ha[d] any damages.” Ms. Reider agreed that “that’s some way that [the
verdict] could be looked at,” but argued that the fact that “the damages [were not]
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controverted in this case” made the verdict inconsistent. The district court
disagreed, concluding that Ms. Reider’s argument was “just speculation” because
the jury “could have easily decided [Ms. Reider] didn’t suffer any damages,” and
denied Ms. Reider’s request to send the issue of damages back to the jury.
Ms. Reider then moved for a mistrial premised on the same argument. The
district court orally denied the motion, and less than a week later entered a written
order. Recognizing its duty under the Seventh Amendment to adopt a view of the
case, if possible, which made the jury’s answers consistent and representative of “a
logical and probable decision on the relevant issues as submitted,” the district court
found that the verdict was not inconsistent. It explained again that the jury could
have found that Ms. Reider sustained no damages, which was consistent with the
evidence presented at trial. Ms. Reider did not petition the district court to
reconsider its ruling, point out to the district court that it incorrectly addressed the
motion on an inconsistent verdict ground as opposed to other grounds, or in any
way raise a compromise verdict argument.
B
If, as Oscar Wilde said, “consistency is the last refuge of the unimaginative,”
Oscar Wilde, The Relation of Dress to Art, A Note in Black and White on Mr.
Whistler’s Lecture, PALL MALL GAZETTE (Feb. 28, 1885), Ms. Reider has chosen
imagination over consistency. She has explicitly abandoned any inconsistent
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verdict claim on appeal and now argues that she is entitled to a new trial because
the verdict was the result of an unlawful compromise between jurors on the issues
of liability and damages.
According to Ms. Reider, the jury impermissibly compromised by finding
Phillip Morris liable in exchange for awarding no damages. Ms. Reider asserts that
she preserved her compromise verdict claim, despite the fact that she never used
the term “compromise verdict” in her post-trial objections to the district court. She
says she “articulated the hallmarks of a compromise verdict” when arguing that
“the zero damages finding was inconsistent with the determination of liability” and
“that the verdict indicate[d] the jury disregarded the court’s instructions.”
Appellant’s Reply Br. at 4. Furthermore, Ms. Reider asserts that because an
“inconsistent verdict is a type of compromise verdict,” the district court should
have been on notice that she was claiming that the verdict was the result of an
unlawful compromise between members of the jury. Id. at 7.
II
We normally review a district court’s denial of a motion for a new trial
based on a compromise verdict for abuse of discretion. See Collins v. Marriott
Int’l, Inc., 749 F.3d 951, 960 (11th Cir. 2014). But issues raised for the first time
on appeal are generally forfeited “because the district court did not have the
opportunity to consider them.” Etienne v. Inter-County Sec. Corp., 173 F.3d 1372,
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1375 (11th Cir. 1999). See also Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir.
2011) (“[E]xcept when we invoke the ‘plain error doctrine,’ which rarely applies in
civil cases, we do not consider arguments raised for the first time on appeal.”);
Electro Servs., Inc. v. Exide Corp., 847 F.2d 1524, 1530 (11th Cir. 1988) (stating
that the “necessary implication” of the abuse of discretion standard “is that there
can be no appellate review if the trial court was not given an opportunity to
exercise its discretion on a motion for new trial”) (internal citations and quotations
marks omitted). Therefore, when an appellant replaces an argument it presented to
the district court with “an entirely new theory on appeal,” we “are unable to reach
the merits” of that new theory. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1326-27 (11th Cir. 2004). See also Walker v. Jones, 10 F.3d 1569, 1572
(11th Cir. 1994) (“An issue not raised in the district court and raised for the first
time in an appeal will not be considered by this court.”) (internal quotations marks
and citations omitted).
III
In our view, Ms. Reider did not preserve a compromise verdict claim. She
objected to the verdict on two grounds—that the finding of liability was
inconsistent with a zero damages award, given the trial evidence, and that the jury
had failed to follow the district court’s instructions with regard to apportionment of
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fault. Simply stated, an inconsistent verdict claim is practically different, and
legally distinct, from a compromise verdict claim.
A
A verdict is inconsistent when there is “no rational, non-speculative way to
reconcile . . . two essential jury findings.” Witt v. Norfe, Inc., 725 F.2d 1277, 1278
(11th Cir. 1984) (alteration in original; internal quotation marks and citation
omitted). A district court “must make all reasonable efforts to reconcile an
inconsistent jury verdict and if there is a view of the case which makes the jury’s
answers consistent, the court must adopt that view and enter judgment
accordingly.” Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983).
See also Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364,
825 S.Ct. 780, 786 (1962) (“Where there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be resolved that way.”);
Aquachem Co. v. Olin Corp., 699 F.2d 516, 521 (11th Cir. 1983) (“[T]he Seventh
Amendment demands that, if there is a view of the case which makes the jury’s
answers consistent, this Court must adopt that view.”) (internal quotation marks
and citations omitted). To determine whether a conflict in the verdict can be
reconciled, a district court must ask whether the jury’s answers could reflect “a
logical and probable decision on the relevant issues . . . submitted.” Burger King,
710 F.2d at 1489 (citing Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973)).
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If a jury’s verdict cannot be reconciled and the jury’s answers to the written
questions are inconsistent with each other or the verdict, the district court has the
discretion to direct the jury to further consider its answers and verdict, or order a
new trial. See Fed. R. Civ. P. 49(b)(3)–(4); Burger King, 710 F.2d at 1489. “[T]his
discretion must be exercised in light of the circumstances under which the
inconsistency arises.” Phillips Chem. Co. v. Hulbert, 301 F.2d 747, 751 (5th Cir.
1962). It is often preferable for a district court to direct the jury to reconsider its
verdict in an attempt to eliminate the inconsistency in order to avoid a new trial.
See Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185, 186 (11th Cir. 1996). In some
instances, however, the district court may find that a new trial is required. See
Hulbert, 301 F.2d at 751 (noting that it may be improper to return to the jury for
further deliberations where the district court has reason to believe that the
inconsistency in the verdict was the result of bias or fundamental lack of
comprehension).
A party must object to a verdict as inconsistent before the jury has been
dismissed. See Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1419–20 (11th
Cir. 2011). See also Coralluzzo, 86 F.3d at 186 (“[C]hallenges to the inconsistency
of special verdicts must be raised before the jury is excused.”). Indeed, failure to
object to an inconsistent verdict before the jury is excused forfeits the objection.
See Mason v. Ford Motor Co., 307 F.3d 1271, 1275–76 (11th Cir. 2002) (“[The
8
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defendant’s] failure to raise its objection before the jury was discharged waived the
right to contest the verdicts on the basis of alleged inconsistency.”). “The reason
for this particular raise-it-or-lose-it rule is that if the inconsistency is raised before
the jury is discharged, the jury can be sent back for further deliberations to resolve
the inconsistency in its verdict or interrogatory answers,” but once the jury is gone
“that is not possible.” Pensacola Motors Sales, Inc. v. E. Shore Toyota, LLC, 684
F.3d 1211, 1225 (11th Cir. 2012).
B
In contrast, a compromise verdict results from the jurors’ impermissible
attempt to “resolve their inability to make a determination with any certainty or
unanimity on the issue of liability by finding inadequate damages.” Collins, 749
F.3d at 960 (quoting Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs, 711 F.2d
1510, 1513 (11th Cir. 1983)). See also Burger King, 710 F.2d at 1486–87 (“A
compromise verdict is one where it is obvious that the jury compromised the issue
of liability by awarding inadequate damages.”) (internal quotation marks and
citations omitted). Insufficient damages alone, however, do not establish a
compromise verdict. See Collins, 749 F.3d at 960. Generally, there must be
additional evidence, such as highly contested liability, evidence of prior deadlock,
or some inconsistency in the verdict for a court to conclude that the deficient
damages resulted from an unlawful compromise. See id. Given that Rule 606(b)(1)
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of the Federal Rules of Evidence generally prohibits courts from inquiring into the
jury’s deliberative process, courts try to ascertain whether a verdict was
compromised by looking at the totality of the circumstances. See Burger King, 710
F.2d at 1487 (providing that courts must examine the totality of the circumstances
surrounding the verdict, including “any indicia of compromise apparent from the
record and other factors which may have caused the jury to return a verdict for
inadequate damages”) (citation omitted).
A party claiming that the jury rendered a compromise verdict must object to
the verdict in a motion for a new trial “no later than 28 days after the entry of
judgment.” Fed. R. Civ. P. 59(b). Failure to raise the claim in a motion for a new
trial results in forfeiture, because the circuit court then has no basis to review the
district court’s exercise of discretion. See Electro Serv., 847 F.2d at 1530. If the
district court, in exercising its discretion, finds that a jury verdict was
compromised, the remedy is to award a new trial as to both liability and damages.
See Collins, 749 F.3d at 962 (“[A] jury verdict influenced by an improper
compromise cannot stand and a complete new trial is required because liability and
damages are inseparable.”) (internal quotation marks and citation omitted).
C
“[I]n the heat of a trial,” counsel need not set forth the basis of his argument
“thoroughly,” but he must say enough to “put[ ] the court on notice as to his
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concern” and preserve the issue on appeal. Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 174, 109 S.Ct. 439, 452 (1988). See also United States v. Zinn, 321 F.3d
1084, 1089 (11th Cir. 2003) (in order to preserve a claim for appeal, a litigant must
“adequately convey[ ] the nature of [the] objection”). Here, Ms. Reider did not put
the district court on notice that she was objecting on compromise verdict grounds.
The district court reasonably (and correctly, we think) interpreted her objection as
an inconsistent verdict claim. Although we do not require that a litigant vocalize an
objection “with polished lucidity,” or utter certain magic words, see Indus. Dev.
Bd. Town of Section, Ala. v. Fuqua Indus., Inc., 523 F.2d 1226, 1238 (5th Cir.
1975), Ms. Reider did not do enough here.
First, Ms. Reider specifically argued that “the verdict [was] inconsistent with
liability on questions one and two with the zero damage[s].” In Ms. Reider’s
words, the verdict was “inconsistent, fundamentally inconsistent.” Even if this
argument may have the tinge of a compromise verdict objection, it is explicitly an
inconsistent verdict objection.
Second, the initial remedy Ms. Reider requested from the district court—that
the jury be sent back for further deliberations on damages—though permissible
when the verdict is inconsistent, is unavailable where a verdict is the a result of an
unlawful compromise. The remedy for a compromise verdict, as we have
explained, is a new trial on liability and damages. Having the jury deliberate
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further would have been inappropriate had Ms. Reider been claiming that the
verdict was based on an impermissible compromise. Even if, as Ms. Reider
contends, all unlawful compromise verdicts are also inconsistent verdicts, not all
inconsistent verdicts are compromise verdicts. Her argument did not suffice to put
the district court on notice that she was raising a compromise verdict claim.
Third, the district court—both orally before dismissing the jury and later in a
written order—expressly described Ms. Reider’s objection and motion for a new
trial as being based on the ground that the verdict was inconsistent. In Rainey, cited
by Ms. Reider, the Supreme Court noted that “the judge’s response [to an
ambiguous objection] suggest[ed] that he perceived . . . [counsel’s] argument.” 488
U.S. at 174, 109 S.Ct. at 452. That was not the case here. The district court was
not under the impression that Ms. Reider was claiming that the verdict was the
result of an unlawful compromise.
Finally, had she been making a compromise verdict objection, Ms. Reider
had ample time to correct the district court’s misunderstanding that she was raising
only an inconsistent verdict claim. She could have filed a motion for
reconsideration when the district court issued its written order, or she could have
filed a separate motion for a new trial. She did neither, and her compromise
verdict claim is therefore forfeited. See United States v. Kennedy, 714 F.3d 951,
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959 (6th Cir. 2013) (compromise verdict claim, made for the first time on appeal,
was forfeited). 2
V
We affirm the district court’s order denying Ms. Reider’s motion for a new
trial, as well as the final judgment entered on the jury’s verdict.
AFFIRMED.
2
We “recognize that [our] power to entertain an argument raised for the first time on
appeal is not a jurisdictional one,” and that we could entertain Ms. Reider’s compromise verdict
argument here, if we chose to do so. See Access Now, 385 F.3d at 1332. But this is not one of
those cases that warrant deviation from our normal practice. See id. (describing circumstances
under which it is appropriate to consider an argument first raised on appeal).
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