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Florida First DCA affirms judgment in Engle progeny case, rejects defendant's claims of error due to juror misconduct in failing to disclose alleged bias against tobacco companies

On February 14, 2017, in R.J. Reynolds Tobacco Company v. Allen, No. 1D15-4197, the Florida First DCA affirmed the judgment in favor of the plaintiff in an Engle progeny tobacco case, rejecting defendant’s claims of reversible error due to juror misconduct based on a juror’s alleged failure to disclose bias against tobacco companies during jury selection. During voir dire, The juror in question had disclosed his own long smoking history and that he thought his minor son suffered from smoking related asthma. Defense counsel did not ask him any follow up questions on these issues. However, several days into trial, the defense unsuccessfully moved to have him removed based on internet social media postings he had allegedly made which were hostile to the tobacco industry. The defendant moved for a new trial after the verdict on the same basis. The trial court analyzed this motion using the three-part standard set forth by the Florida Supreme Court 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 trial court found that the first prong was satisfied in this case but that the last two prongs were not. Applying an abuse of discretion standard, the First DCA found no error in the trial court’s ruling.

Another appellate issue in the case was whether the trial court had erred by not reducing the compensatory damages following the jury’s finding that the decedent was 70% at fault. The First DCA noted that there was a circuit split on this issue, with the Fist DCA having previously ruled in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013) that apportionment of fault is not required where a defendant is found to have committed an intentional tort, and the Fourth DCA having reached the opposite conclusion 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) due the fact that the claims were founded in product liability. The First DCA opined that it was obligated to follow Sury.

Finally, the Court also affirmed the trial court’s ruling that the applicable punitive damage statutes were those in existence on November 21, 1996, the date on which a plaintiff’s symptoms of tobacco-related disease or medical condition must have manifested to qualify as an Engle progeny class member. This was an issue because in 1999 Fla. Stat. 768.72(2)(b) was amended to require a “conscious disregard” for the safety of others rather than previous lower standard of “reckless disregard.” The First DCA ruled that the trial court used the right version of the statute because the applicable statutory law on punitive damages related back in the same way as the wrongful death action related back to the date of the Engle class for statute of limitations purposes.

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