R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA, INC. v. DEBORAH NEFF, as Personal Representative of the ESTATE OF DOROTHY MILINKOVICH

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
R.J. REYNOLDS TOBACCO COMPANY and
PHILIP MORRIS USA INC.,
Appellants,
v.
DEBORAH NEFF, as Personal Representative
of the Estate of Dorothy Milinkovich,
Appellee.
No. 4D19-2646
[July 14, 2021]
Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No.
2007-CV-036745.
Val Leppert and William L. Durham II of King & Spalding LLP, Atlanta,
Georgia, for appellant R.J. Reynolds Tobacco Company, and Geoffrey J.
Michael and David M. Menichetti of Arnold & Porter Kaye Scholer LLP,
Washington, D.C., for appellant Philip Morris USA Inc.
Scott Schlesinger, Jonathan Gdanski, Steven Hammer, and Brittany
Barron of Schlesinger Law Offices, Fort Lauderdale, and Thomas J. Seider
and Celene H. Humphries of Brannock Humphries & Berman, Tampa, for
appellee.
LEVINE, J.
In this case, we once again review the actions of an attorney who made
several improper arguments to the jury during closing argument. Once
again, we have a trial court that failed to sustain contemporaneous
objections to several of these improper arguments. And once again, we
reverse and remand due to these improper arguments made during closing
arguments.
Appellants, R.J. Reynolds and Philip Morris, appeal a final judgment
for wrongful death in favor of Deborah Neff, as the personal representative
of the estate of Dorothy Milinkovich, for $4 million in compensatory
damages and $6 million in punitive damages. Appellants raise several
issues. We discuss only two of the issues: the improper arguments made
by Neff’s counsel and the admission of advertisements as it relates to the
First Amendment. Neff also cross-appeals, challenging the verdict form,
which required the jury to make a conspiracy finding for each defendant.
We reverse as to the closing argument and also write to give guidance on
the admission of the advertisements. As to the cross-appeal, we also
reverse.
The daughter of the decedent filed a wrongful death action against
Reynolds for strict liability, fraud by concealment, conspiracy to commit
fraud by concealment, and negligence. She proceeded against Philip
Morris with a single count of conspiracy.
The decedent was born in 1923 and began smoking at the age of
thirteen or fourteen. She was diagnosed with lung cancer in 1994 and
died three months later at the age of seventy-one.
During phase I of the trial, an addiction expert testified regarding the
decedent’s addiction. A historian expert testified regarding the tobacco
industry’s decades-long conspiracy to conceal smoking’s harmful effects.
During the historian’s testimony, Neff introduced several modern-day
cigarette advertisements, including advertisements published in Glamour
magazine in 2013.
Before trial, Reynolds had moved in limine to exclude the Glamour
magazine advertisements. Reynolds argued the advertisements were
lawful commercial speech protected by the First Amendment and that it
could not be punished for exercising its constitutional right to advertise
its products. The trial court denied the motion in limine, stating, “I don’t
see this as a First Amendment issue.”
During closing arguments, Neff’s counsel repeatedly argued that
appellants conceded the decedent was addicted to cigarettes. Reynolds
objected to the argument as “a total misstatement,” which the trial court
overruled. Neff’s counsel characterized appellants’ defense—that the
decedent’s addiction did not cause her disease—as “the last refuge of the
scoundrel.” Reynolds objected on the grounds that it was a personal
attack on counsel. The trial court stated, “All right” and informed the jury
that counsels’ “opinions don’t matter” and to “disregard . . . any comments
on the person.”
Also during closing, Neff’s counsel chastised appellants for admitting
medical causation during trial: “After the Judge read to you they deny
everything. . . . In late March, March 17th, the morning after Dr. Burns
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was on the stand, they admitted that her smoking caused cancer, after
denying it.” The trial court overruled Reynolds’s objection to an attack on
the defense. Neff’s counsel argued that appellants had admitted
compensatory damages: “[T]here are compensatory damages. Nobody has
denied that. That’s admitted, too. There are damages in this case.” The
trial court overruled Reynolds’s objection.
Over objection, Neff’s counsel encouraged the jury “to punish a
wayward corporation that has erred, that has lost its moral compass, that
has acted as an evildoer and a wrongdoer for decades . . . .” Neff’s counsel
referred to appellants as “an enterprise of death.” The trial court overruled
Reynolds’s objection to the “enterprise of death” remark as being
inflammatory. Neff’s counsel further argued that appellants had “reaped
an industry of death and billions and billions of profit . . . .”
Neff’s counsel quoted from Dr. Martin Luther King: “The arc of the
moral universe is long, but it bends toward justice.” Neff’s counsel added,
“It is a long and windy road, but it indeed bends towards justice.”
Reynolds objected to invoking Dr. King, a civil rights leader, as well as the
particulars of this quote. The trial court overruled the objection and a
subsequent motion for mistrial, but reminded the jury that “[t]his is
argument, ladies and gentlemen.”
Over Reynolds’s objection to the following as being an inflammatory
argument, Neff’s counsel quoted a passage from George Orwell’s novel
1984:
So this is from a book, 1984 by George Orwell, and it was
written with this idea of Big Brother, who was this all-powerful
entity who was able to dictate and control society. And there
was this rebel in the book, Winston. And Winston was this
character who was trying to rebel against George Orwell. And
the most pivotal theme in the book has the character O’Brien
standing over Winston, and he’s about to embark on the worst
part of the book. Before he makes sure he understands one
thing. And this is what he says to him. He says, “And above
all we do not allow the dead to rise up against us. You must
stop imagining that posterity will vindicate you, Winston.
Posterity will never hear of you. You’ll be lifted clean out of the
stream of history. We shall turn you into a gas and pour you
into a stratosphere. Nothing will remain of you, not a name
in a registry, not a memory in a living brain. You will have
been annihilated in the past as well as in the future. You will
have never existed.”
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And so through this process through your verdict we ask you
to please ensure that [the decedent], their victim, is remembered
and that she’s not forgotten.
(emphasis added). The trial court also denied a subsequent motion for
mistrial based on this quote.
Neff’s counsel also argued that appellants “didn’t have anybody from
the companies sitting here . . . .” Reynolds objected based on a prior ruling
in limine and argued that the comment was improper, inflammatory, and
highly prejudicial. The trial court sustained the objection. Neff’s counsel
later argued that he liked Reynolds’s counsel, “[b]ut he’s not R.J.
Reynolds.” Reynolds objected, and the trial court again sustained the
objection. The trial court denied appellants’ motions for mistrial.
During a pretrial hearing, the trial court had granted appellants’ motion
in limine to prevent Neff from commenting that appellants did not have
any corporate representatives present at trial. During that pretrial
hearing, Neff’s counsel had agreed that case law did not allow such a
comment during phase I.
Also during closing, Neff’s counsel twice argued, “I don’t see that as a
valid defense.” The trial court overruled Reynolds’s objections to the
argument as a personal attack on the defense and a personal opinion.
Later, Neff’s counsel argued that appellants “should be protecting children,
not addicting them” and “should be working on curing cancer, not causing
cancer.” The trial court overruled Reynolds’s “personal opinion” objection.
Over Neff’s objection, the jury verdict form required the jury to make
separate conspiracy findings for each defendant. Specifically, the following
form was submitted to the jury:
Please state whether [the decedent] reasonably relied to her
detriment on any statement of material fact that was made in
furtherance of Defendants’ agreement to conceal or omit
material information not otherwise known or available,
concerning the health effects or addictive nature of smoking
cigarettes, with the intention that smokers and members of
the public would rely to their detriment, and, if so, whether
such reliance was a legal cause of her death:
R.J. Reynolds Tobacco Co. Yes____ No____
Philip Morris USA Inc. Yes____ No____
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The jury answered yes to both these questions. The jury returned a
verdict for Neff, awarding $4 million in compensatory damages.
During phase II, the parties presented evidence concerning appellants’
finances and profits. Before closing arguments in phase II, the trial court
instructed the jury that “any amount of money that you award as punitive
damages against the defendant must be based solely on harms caused to
her by that defendant. You may not punish Philip Morris and RJ Reynolds
for any harms suffered by persons other than [the decedent].”
Minutes after this instruction was read, Neff’s counsel argued to the
jury: “I recommend that you find them equally for what they did to [the
decedent and her daughter] and millions of family members—” The trial
court sustained Reynolds’s objection that the case was “about one
plaintiff” and that the argument was “[c]ontrary to the instruction.” The
trial court gave the jury the following curative instruction: “You may not
punish Philip Morris and RJ Reynolds for any harm suffered by persons
other than [the decedent].”
During rebuttal arguments in phase II, Neff’s counsel commented on
why he litigates Engle cases: “And I always—I always want to—I want to
get on my feet and I want to say something beautiful and American and
true. That’s the only thing I care about. That’s why I do this. I do what I
think is important to do—” The trial court sustained Reynolds’s objection
that the argument was testimonial.
The jury awarded $6 million in punitive damages. This appeal and
cross-appeal follow.
I. Improper Arguments
We review a trial court’s rulings on closing argument for abuse of
discretion. Gianos v. Baum, 941 So. 2d 581, 585 (Fla. 4th DCA 2006). “A
trial court’s denial of a motion for mistrial and a motion for new trial based
on improper closing arguments are reviewed for abuse of discretion.”
Whitney v. Milien, 125 So. 3d 817, 818 (Fla. 4th DCA 2013).
“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.’” R.J. Reynolds
Tobacco Co. v. Calloway, 201 So. 3d 753, 764 (Fla. 4th DCA 2016) (quoting
Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006)). Where,
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however, the trial court sustains an objection, a party must request a
mistrial or curative instruction to preserve the issue for appeal.
Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010). Finally, for
unpreserved arguments, a new trial should be granted only if “the
unobjected-to argument being challenged was improper, harmful,
incurable, and so damaged the fairness of the trial that the public’s
interest in our system of justice requires a new trial . . . .” Murphy v. Int’l
Robotic Sys., Inc., 766 So. 2d 1010, 1030 (Fla. 2000).
Further, “in evaluating whether the errors were harmless, we may
consider ‘the cumulative effect’ of preserved and unpreserved error.”
Calloway, 201 So. 3d at 762 (quoting Allstate Ins. Co. v. Marotta, 125 So.
3d 956, 961 (Fla. 4th DCA 2013)). Under the harmless error standard,
“the beneficiary of the error must prove that there is no reasonable
possibility that the error complained of contributed to the verdict.” Special
v. W. Boca Med. Ctr., 160 So. 3d 1251, 1253 (Fla. 2014). “Although the
trial court’s ruling is entitled to substantial deference, there is a point
where the totality of all errors and improprieties are pervasive enough to
raise doubts as to the overall fairness of the trial court proceedings.”
Calloway, 201 So. 3d at 764 (citation and internal quotation marks
omitted).
The supreme court has explained the purpose of closing argument as
follows:
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.” Hill v. State, 515 So. 2d 176,
178 (Fla. 1987). 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.” Knoizen
v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998); see
also Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993).
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.” Bertolotti v. State,
476 So. 2d 130, 134 (Fla. 1985).
Murphy, 766 So. 2d at 1028.
a. Preserved Improper Arguments that were Overruled
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We find that the trial court, in light of the entire record, abused its
discretion in overruling objections to (a) quoting from Orwell’s 1984, (b)
quoting from Dr. King, (c) referring to the tobacco industry as an
“enterprise of death,” (d) misstating the evidence, (e) attacking appellants
for conceding medical causation, and (f) injecting Neff’s counsel’s personal
opinion. None of these comments prompted a “logical analysis of the
evidence,” but rather were designed to inflame the emotions of the jury.
This court, in fact, recently determined that plaintiff’s counsel’s reading
of the very same passage from Orwell’s 1984 amounted to improper
inflammatory argument. R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-
2880, 2021 WL 2559664 (Fla. 4th DCA June 23, 2021). In Kaplan, the
trial court similarly overruled the defense objections and denied the
motion for new trial regarding the improper closing arguments. This court
further expressed its concern in Kaplan that this particular plaintiff’s
counsel’s office had been rebuked by this court for making multiple
similarly improper arguments in the past:
It is disturbing that on at least four prior occasions, this
court has addressed improper inflammatory closing
arguments appealing to passion by trial counsel Scott P.
Schlesinger or his firm Schlesinger Law Offices, P.A. See
Oshinsky-Blacker v. Philip Morris USA, Inc., L.T. Case No.
CACE08-025841 (Fla. 17th Cir. Ct. Mar. 6, 2017), aff’d, 249
So. 3d 643 (Fla. 4th DCA 2018) (per curiam, affirming new
trial); Cohen, 203 So. 3d at 948 (affirming the trial court’s
granting a new trial because “counsel made arguments which
crossed the line into ‘take responsibility’ and ‘apologize’
territory,” characterizing counsel’s arguments as “improper”
and “egregious and unacceptable”); Calloway, 201 So. 3d at
761 (“These comments were designed for no other purpose
than to inappropriately evoke sympathy from the jury.”); Tullo,
121 So. 3d at 601 (determining that the argument implying
tobacco companies were as culpable as drug dealers was
improper). Three of these cases resulted in a new trial, and
the fourth, Tullo, very well may have but for the defense’s
failure “to raise a contemporaneous objection to any of the
challenged comments.” Id. As our supreme court stated in
Engle with respect to inflammatory closing arguments in that
case, we similarly “condemn these tactics of” Mr. Schlesinger
and conclude that his “conduct [was] unbecoming an attorney
practicing in our state courts.” Engle, 945 So. 2d at 1273.
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2021 WL 2559664, at *5. Similarly, when this case started trial on
February 28, 2019, appellee also had the benefit of the same four cases
referred to in Kaplan. Just like in Kaplan, despite the rulings in all four
cases, plaintiff’s counsel still made improper and inflammatory
arguments.
Although this court determined in Kaplan that the 1984 argument and
another argument were improper, it found that they did not rise to the
level of requiring reversal because the comments were “brief and isolated.”
Id. at *6. Additionally, although not dispositive, the verdict in Kaplan
returned by the jury—$2.1 million in compensatory damages and
$2,971,000 in punitive damages—was “far less than requested by
Plaintiff’s counsel.” Id. This court further stated, based on its extensive
review of the record, that the jury did not appear to be affected by the
argument.
Unlike in Kaplan, here the verdict returned by the jury was not “far
less” than the amount requested by Neff’s counsel. Additionally, unlike in
Kaplan, and most importantly, the improper comments in the instant case
were not brief and isolated but rather pervaded the entire closing
argument. It cannot be said, based on the record, that the jury was not
affected by all the improper arguments. See also R.J. Reynolds Tobacco
Co. v. Mahfuz, No. 4D19-2236, 2021 WL 2673382 (Fla. 4th DCA June 30,
2021) (reversing where plaintiff’s counsel quoted from the same 1984
passage and made other improper arguments).
In addition to quoting from Orwell’s 1984, Neff’s counsel also
improperly relied on a quote from Dr. King that “[t]he arc of the moral
universe is long, but it bends toward justice.” We find that using this
quote, especially when citing to Dr. King, was improper because it
attempted to bolster the case by appealing to justice as well as association
with Dr. King, a noted civil rights leader. Further, there was no nexus
between the tobacco litigation and this particular quote from Dr. King.
“The argument that the case is about ‘justice’ for the victim or the victim’s
family has been uniformly condemned.” Cardona v. State, 185 So. 3d 514,
522 (Fla. 2016) (reversing where during closing argument prosecutor
repeatedly asked the jurors to return a verdict that brings “justice” to the
victim); see also Davis v. State, 136 So. 3d 1169, 1197 (Fla. 2014) (holding
that argument that the victim’s siblings would want to know that justice
was imposed for the victim’s murder was improper); Dorsey v. State, 942
So. 2d 983, 986 (Fla. 5th DCA 2006) (finding arguments “demanding
justice for the victim” were improper); Engle, 945 So. 2d at 1273(condemning comments invoking civil rights leaders such as Dr. King to
appeal to a jury’s sense of outrage for injustices committed upon
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minorities).
The trial court also failed to recognize the impropriety of other
arguments, which were preserved by contemporaneous objections. Neff’s
counsel called appellants “an enterprise of death.” See Mahfuz, 2021 WL
2673382, at *1 (disapproving argument describing tobacco companies as
a “soulless enterprise of death”). Neff’s counsel repeatedly misstated that
appellants had conceded addiction and improperly attacked appellants for
admitting medical causation during trial. Neff’s counsel also improperly
injected his personal opinion when he twice stated, “I don’t see that as a
valid defense.” He again improperly injected his personal opinion, which
was inflammatory, when he stated that appellants “should be protecting
children, not addicting them” and “should be working on curing cancer,
not causing cancer.” These comments were incorrect statements of the
evidence or served no purpose other than to inflame the jury.
b. Preserved Improper Arguments that were Sustained
Although the trial court properly recognized the impropriety of other
objected-to comments, the trial court’s response to those comments was
insufficient when considering the cumulative nature of all of the improper
arguments in this case. These comments include (a) encouraging the jury
to punish appellants for what they did to “millions of family members,” (b)
twice referring to the absence of appellants’ corporative representatives at
trial in violation of a pretrial order in limine, (c) referring to appellants’
defense as “the last refuge of the scoundrel,” and (d) stating why Neff’s
counsel litigates Engle cases.
In Philip Morris USA v. Williams, 549 U.S. 346, 355 (2007), the United
States Supreme Court held that, when awarding punitive damages,
“[e]vidence of actual harm to nonparties can help to show that the conduct
that harmed the plaintiff also posed a substantial risk of harm to the
general public, and so was particularly reprehensible . . . .” However, “a
jury may not go further than this and use a punitive damages verdict to
punish a defendant directly on account of harms it is alleged to have
visited on nonparties.” Id. Neff’s counsel asked the jurors to punish
appellants for what they did to the decedent, the decedent’s daughter, and
“millions of family members.” Thus, Neff’s counsel expressly asked the
jury to punish appellants for harm suffered by other smokers and their
families. Neff’s counsel did not merely ask the jury to consider harm
suffered by others. Instead, he did exactly what Williams clearly prohibits.
To make it even more disconcerting, Neff’s counsel made this comment
mere minutes after the trial court instructed the jury that it may not
punish appellants for harm suffered by persons other than the decedent.
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Neff’s counsel also violated the law by referencing the absence of
appellants’ corporative representatives at trial. Calloway is instructive. In
that case, the trial court sustained objections to plaintiff’s counsel’s
closing argument that “‘[The Tobacco Companies] never give up. There are
no corporate representatives here.’ ‘There are no corporate representatives
here. There are lawyers here.’” 201 So. 3d at 761. This court stated that
“[c]omments referencing the absence of corporate representatives at trial
unfairly implied that the defendants were not showing proper respect for
the trial, the decedent, and the plaintiff.” Id. We concluded that the
cumulative effect of numerous improper comments by the plaintiff’s
attorney during opening, rebuttal, and closing arguments warranted a new
trial.
Based on Calloway, the trial court properly sustained Reynolds’s
objection to comments on the absence of a corporate representative. Neff’s
counsel twice referred to the absence of corporative representatives in
violation of an order in limine and contrary to Neff’s counsel’s agreement
during a pretrial hearing that case law prohibits such a comment.
Further, Neff’s counsel had already been reprimanded for this very same
comment in Calloway.
Additionally, Neff’s counsel personally attacked Reynolds’s counsel
when he referred to Reynolds’s defense as the “last refuge of the
scoundrel,” essentially comparing Reynolds’s counsel to being a
“scoundrel.”
Finally, in phase II, Neff’s counsel improperly commented about why he
litigates Engle cases: “And I always—I always want to—I want to get on my
feet and I want to say something beautiful and American and true. That’s
the only thing I care about. That’s why I do this. I do what I think is
important to do—” The trial court properly sustained Reynolds’s objection
that the argument was testimonial.
c. Unpreserved Improper Arguments
Other improper remarks by Neff’s counsel, which may not have been
sufficiently preserved, also may be considered along with the preserved
comments in engaging in a harmless error analysis. See Marotta, 125 So.
3d at 961. Neff’s counsel (a) misstated that appellants admitted
compensatory damages; (b) improperly encouraged the jury to “punish a
wayward corporation that has erred, that has lost its moral compass, that
has acted as an evildoer and a wrongdoer for decades”; and (c) improperly
stated that appellants have “reaped an industry of death and billions and
10
billions of profit.”
In summary, we are required to reverse based on the preserved errors,
as well as cumulative effect of the preserved and unpreserved errors
including, but not limited to, invoking Dr. King in calling for “justice;”
quoting Orwell’s dystopian novel 1984; calling appellants “an enterprise of
death” and “scoundrel[s]”; suggesting that the jury should punish
appellants for harm to others; twice referring to the lack of corporate
representation in the courtroom, contrary to an order in limine; and
making several other improper comments. This is a case in which the
totality of all errors and improprieties is so pervasive as to raise
considerable doubts about the overall fairness of the trial court
proceedings. Calloway, 201 So. 3d at 764.
We also find that, when considering the totality of the preserved and
unpreserved errors, all the improper arguments are not harmless error.
We are not saying that any one statement in and of itself amounts to
reversible error. We are merely recognizing in the totality of improper
arguments, preserved and unpreserved, that the errors were harmful
error, requiring a new trial.
II. Applicability of First Amendment to Commercial Advertisements
Appellants next contend the trial court erred in admitting evidence of
their modern-day advertising because it was irrelevant to Neff’s claims and
protected by the First Amendment.
A trial court’s ruling on the admissibility of evidence is reviewed for an
abuse of discretion. Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115, 120
(Fla. 4th DCA 2017). “Whether the trial court has complied with the
guarantees of due process is subject to de novo review.” VMD Fin. Servs.,
Inc. v. CB Loan Purchase Assocs., LLC, 68 So. 3d 997, 999 (Fla. 4th DCA
2011) (citation omitted). A trial court’s ruling on a First Amendment
violation is reviewed de novo. Thoma v. O’Neal, 180 So. 3d 1157, 1159
(Fla. 4th DCA 2015).
Initially, we find that appellants failed to preserve their relevancy
argument by failing to raise it below. Aills v. Boemi, 29 So. 3d 1105, 1108
(Fla. 2010). Thus, only the First Amendment issue is properly before this
court. Because we reverse based on the improper closing arguments, we
do not reach the merits of this constitutional issue. See In re Holder, 945
So. 2d 1130, 1133 (Fla. 2006); Singletary v. State, 322 So. 2d 551, 552
(Fla. 1975). However, we write for the limited purpose of offering guidance
to the trial court as to the proper standard for First Amendment analysis
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for commercial speech.
The First Amendment “protects commercial speech from unwarranted
governmental regulation” unless it concerns unlawful activity or is
misleading. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 561, 566 (1980); see also State v. Bradford, 787 So. 2d 811,
820 (Fla. 2001) (“[T]he State may regulate commercial speech relating to
unlawful activities, and commercial speech that is misleading.”).
Commercial speech that concerns lawful activity and is not misleading
may still be regulated if “the asserted governmental interest is
substantial,” “the regulation directly advances the governmental interest
asserted,” and “it is not more extensive than is necessary to serve that
interest.” Central Hudson, 447 U.S. at 566; see also Bradford, 787 So. 2d
at 820.
In this case, the trial court incorrectly concluded there was no First
Amendment issue. By failing to recognize the First Amendment was
implicated, the trial court did not engage in any First Amendment analysis
and, as such, failed to apply the correct standard. Therefore, on retrial,
the trial court should consider the admissibility of the modern-day
advertisements by applying the standard set forth in Central Hudson.
III. Cross-Appeal
In her cross-appeal, Neff argues that the trial court erred in requiring
the jury to make separate conspiracy findings for each defendant. Neff
argues that conspiracy is all-or-nothing and that if a conspiracy causes
harm to a plaintiff, then all co-conspirators are liable.
“A trial court is accorded broad discretion in the formulation of
appropriate jury instructions and its decision should not be reversed
unless the error complained of resulted in a miscarriage of justice or the
jury instructions were reasonably calculated to confuse or mislead the
jury.” Chevron U.S.A., Inc. v. Forbes, 783 So. 2d 1215, 1218 (Fla. 4th DCA
2001). “Where, however, . . . the analysis turns on a pure question of law,
our standard of review is de novo.” Chacon v. Philip Morris USA, Inc., 254
So. 3d 1172, 1175 (Fla. 3d DCA 2018).
“To state a claim for civil conspiracy, a plaintiff must allege: (1) an
agreement between two or more parties, (2) to do an unlawful act or to do
lawful act by unlawful means, (3) an overt act in furtherance of the
conspiracy, and (4) damage to the plaintiff as a result of the act performed
in furtherance of it.” Gilison v. Flagler Bank, 303 So. 3d 999, 1004 (Fla.
4th DCA 2020). Each co-conspirator “need only know of the scheme and
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assist in it in some way to be held responsible for all of the acts of his
coconspirators.” Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.
2d 1157, 1160 (Fla. 3d DCA 2008) (citation omitted). A co-conspirator
need not have caused any direct injury to the claimant. Rey v. Philip
Morris, Inc., 75 So. 3d 378, 383 (Fla. 3d DCA 2011). Co-conspirators are
“jointly and severally liable for the acts of all participants in the scheme.”
Id.Thus, by definition, a conspiracy requires an agreement between two
persons. One cannot engage in civil conspiracy alone. Although the jury
answered yes to both conspiracy questions on the jury verdict form, the
jury verdict form had the potential to mislead or cause confusion.
Contrary to appellants’ suggestion, the fact that the jury did not return an
inconsistent verdict does not mean that the verdict form was proper or a
correct statement of law. “[T]he test for reversible error arising from an
erroneous jury instruction is not whether the instruction misled, but only
whether it reasonably might have misled the jury.” McPhee v. The Paul
Revere Life Ins. Co., 883 So. 2d 364, 368 (Fla. 4th DCA 2004); see also
Francis-Harbin v. Sensormatic Elecs., LLC, 254 So. 3d 523, 525 (Fla. 3d
DCA 2018) (“A legally inconsistent verdict is one which contains two or
more findings which, as a matter of law, cannot co-exist.”). To avoid the
potential for an inconsistent verdict, this particular verdict form question
should not be used at retrial.
In conclusion, regarding appellee’s improper arguments, we find the
preserved errors, as well as the cumulative effects of the unpreserved
errors, mandate that we reverse and remand for a new trial. We make the
following observations. The four prior cases of improper arguments,
known to appellee’s counsel at the start of this trial, did not prevent or
alter his use of improper arguments. The trial court did not act sufficiently
when confronted with these types of improper arguments. The numerous
improper arguments cause us to doubt the overall fairness of the trial
proceedings. Finally, as a result, all the time and effort that was put into
this trial was for naught. Thus, once again, we must reverse.
Reversed and remanded for a new trial.
MAY, J., concurs specially with opinion.
FORST, J., concurs specially with opinion.
MAY, J. specially concurring.
I join in the majority opinion because our court has chosen to go down
the condemnation and reversal path regarding improper comments made
13
in closing arguments in these tobacco cases. R.J. Reynolds Tobacco Co. v.
Calloway, 201 So. 3d 753 (Fla. 2016) (en banc). To be sure, there are lines
drawn in the commentary sand which should not be, but have been,
crossed in too many closing arguments we review. See, e.g., R.J. Reynolds
Tobacco Co. v. Mahfuz, No. 4D19-2236, 2021 WL 2673382 (Fla. 4th DCA
June 30, 2021); R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-2880,
2021 WL 2559664 (Fla. 4th DCA June 23, 2021) (on rehearing); Oshinsky-
Blacker v. Philip Morris USA Inc., 249 So. 3d 643 (Fla. 4th DCA 2018);
Cohen v. Philip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016); R.J.
Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016);
Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th DCA 2013).
I agree with Judge Gross’s special concurrence in Mahfuz, 2021 WL
2673382, at *3. It is not that I condone the name-calling, violation of
orders in limine, and literary themes and analogies that go beyond the
pale. But I wonder why counsel chose to go there. Our supreme court all
but nailed tobacco’s coffin shut in Engle v. Liggett Group, Inc., 945 So. 2d
1246, 1271 (Fla. 2006). Engle substantially reduced the plaintiff’s burden
of proof and left very little to litigate. So why resort to a game plan that
threatens the life of a jury verdict?
Like Judge Gross, I suggest very few jurors are shocked by the facts in
tobacco cases. I doubt there is much that plaintiffs’ counsel can say that
will inflame juries to the point the trial becomes unfair. Admittedly, there
are some analogies (Nazis, slavery, the devil, etc.) that cannot be tolerated.
It is just so unnecessary in my view.
Creativity in story telling has its place. Use of literary works and quotes
can hold the attention of jurors. Were we writing on a clean slate, I would
condemn some, and warn against the use of other, references and
“creative” name-calling that occurred in this case. I would conclude, as I
did in Calloway, that they were harmless; not because they are acceptable,
but because there is no reasonable possibility that the error contributed
to the verdict. Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014).
Alas, we are not writing on a clean slate, far from it. And so, I am precedent
bound to concur rather than dissent.
FORST, J., specially concurring.
I concur in the reversal opinion, remanding for a new trial. I agree that
plaintiff’s counsel (Schlesinger Law Offices, P.A.) used closing argument to
unduly “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.” Bertolotti v. State, 476 So. 2d 130,
14
134 (Fla. 1985).
Prior to the trial in the instant case, plaintiff’s counsel had on four
occasions used closing argument to essentially grasp defeat from the jaws
of victory, crossing the line from acceptable to unacceptable closing
argument rhetoric in a manner that led to either the trial court or this
court reversing the jury verdict and award of damages in favor of counsel’s
client and remanding for a new trial. See R.J. Reynolds Tobacco Co. v.
Kaplan, No. 4D18-2880, 2021 WL 2559664, at *5 (Fla. 4th DCA June 23,
2021) (listing the four reversals). At oral argument for the instant case,
Mr. Schlesinger argued for the appellee. He acknowledged these four
reversals but exclaimed that he and his firm had learned from them and
here “there w[ere] no biblical references, no serpents, no devils, no
personal references, no references to family members, no references to
lawyers reacting emotionally, no comparisons to drug dealers, no
[allegations of] criminal conduct . . . .” Instead, the firm now uses
“literature, music, artwork, . . . and popular culture” references, with Mr.
Schlesinger asserting that “almost everything I said [during closing
argument in the instant case] was perfectly appropriate.”
It is encouraging that plaintiff’s counsel is no longer characterizing the
tobacco companies as “the devil.” However, the panel’s opinion explains
that there was quite a bit said during this trial that was not appropriate,
including several instances where counsel presented argument that had
been expressly precluded by the trial court during the pre-trial conference,
such as noting that the defendants’ corporate representatives were not
present at trial.
Shortly after the oral argument in the instant case, this court issued
two opinions that are critical of the Schlesinger firm’s closing argument in
those cases, particularly counsel’s reference to 1984 that Mr. Schlesinger
acknowledged is part of his firm’s closing argument “template.” R.J.
Reynolds Tobacco Co. v. Mahfuz, No. 4D19-2236, 2021 WL 2673382 (Fla.
4th DCA June 30, 2021); R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-
2880, 2021 WL 2559664 (Fla. 4th DCA June 23, 2021). In defending the
use of the 1984 reference and other challenged comments at this case’s
oral argument, Mr. Schlesinger stated “we follow the rules when you tell
us what they are.” (emphasis added). Moreover, in reference to 1984, he
claimed that a number of trial judges “heard the quote from Orwell, passed
on it, whether it was either without objection by the defendants or with
objection, and nobody ever brought it up subsequently on appeal.”
It may be true that some trial court judges overruled objections to the
1984 or MLK quotes and, for whatever reason (not objected to at trial; not
15
raised on appeal; an isolated comment; damage was limited), these specific
statements had not been rebuked at the appellate level prior to the trial in
the instant case. Thus, Kaplan, Mahfuz, and the panel’s opinion in this
case should be further reminder to both trial counsel and trial court judges
that closing arguments are not an opportunity for “anything goes” and
vilification rhetoric. Likening a defendant to “Big Brother” or using terms
like “enterprise of death” and “last refuge of the scoundrel” are
inappropriate, even during closing argument when attorneys are “afforded
great latitude.” See Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010,
1028 (Fla. 2000) (“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.’”).
In Kaplan, we concluded “Plaintiff’s counsel took a calculated risk that
he could make . . . a circuitous comparison to Tobacco acting like Nazis
and get away with it.” 2021 WL 2559664, at *4. One would think that an
appellate court would not have to inform counsel or trial court judges of
the inappropriateness of comparing the opposing party, directly or
circuitously, to historical or fictional villains, such as the Nazis and Big
Brother. Likewise, comparisons to the Taliban, Isis, Al Qaeda, Stalin, Pol
Pot, Bull Connor, the Unabomber, Cruella de Vil, Hannibal Lecter, the
Wicked Witch, Simon Legree, vampires, and zombies are also off limits.
This is not an exhaustive list.
In responding to defense counsel’s objection in Kaplan, Mr. Schlesinger
claimed to be using the Schindler’s List reference to make the point that,
like the list of “the 800 names they’re going to pull out of the concentration
camp and save the lives[,]” the “list of rulings [that make up the Engle1
findings is] . . . an absolute good” for jurors. Id. at *2. The irony in Mr.
Schlesinger wrongfully choosing to use a movie dealing with the Holocaust
to make this point is that the underlying argument, skipped of the
theatrics, is correct—our supreme court’s Engle findings provide for the
important foundational arguments advanced by a plaintiff’s case in a
wrongful death suit against the tobacco companies.
Going forward, trial counsel are cautioned to avoid making a mountain
out of a molehill and employing a strategy of twisting and challenging
innocuous and inoffensive statements by opposing counsel. On the other
hand, when opposing counsel crosses the line, to avoid further appeals
based on inappropriate comments at trial and further instances of counsel
later asking “was that wrong?,” timely and proper objections to
1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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unjustifiable remarks and references must be made; trial courts must
sustain proper objections and provide curative instructions where
appropriate; and if the cumulative effect of improper comments is “so
inflammatory and prejudicial that they deny the opposing party a fair
trial,” 2 a timely motion for mistrial should be made and granted. In any
case, as it should be clear at this point based on Calloway 3 and its (alas)
ever-increasing progeny, inappropriate comments and references will not
be tolerated by this court.
* * *
Not final until disposition of timely filed motion for rehearing.
2 Las Olas Holding Co. v. Demella, 228 So. 3d 97, 107 (Fla. 4th DCA 2017)
(quoting Bakery Assocs., Ltd. v. Rigaud, 906 So. 2d 366, 367 (Fla. 3d DCA 2005).
3 R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016).
17