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Florida First DCA reverses judgment in Engle progeny tobacco case and orders retrial based on improper closing argument by plaintiff's counsel

On February 24, 2017, in R.J. Reynolds Tobacco Company v. Robinson, No. 1D15-0989, the Florida First DCA reversed the verdict and judgment in an Engle progeny tobacco case and ordered a retrial based on improper closing argument by plaintiff’s counsel. During his closing argument, the plaintiff’s counsel had reproached the defendant for its alleged failure to “come clean” and admit past wrongdoing. Although there was some dispute about how these comments should be interpreted, as reflecting a previous failure to admit wrongdoing to the general public or a failure by the defense to admit wrongdoing to the jury, the First DCA interpreted the comments as disparaging the defendant for contesting liability at trial and concluded that the improper comments, along with comments that the defendant was an unrepentant, anti-military, criminal predator whom the jury must fight and destroy, were so highly prejudicial and inflammatory that they denied the defendant the right to a fair trial. The Court considered the fact that the jury had awarded an “absurdly excessive” amount of punitive damages, $23.6 billion, as additional proof that they jury gave great weight to the closing argument. The First DCA also criticized the trial court for failing to rein in the behavior of the plaintiff’s attorney.

The Court cited several cases in support of the proposition that a plaintiff may not suggest to the jury that a defendant is somehow acting improperly by defending itself at trial or that a defendant should be punished for contesting damages. See State Farm Mut. Auto Ins. Co. v. Thorne, 110 So. 3d 66, 74-75 (Fla. 2d DCA 2013) (declaring improper plaintiff’s “contention in closing that the defendants’ evidence and argument were an attempt ‘to avoid responsibility’ and, as a result, the defendants exhibited shameful conduct”); Intramed, Inc. v. Guider, 93 So. 3d 503, 507 (Fla. 4th DCA 2012) (“Counsel’s arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper[.]”); Carnival Corp. v. Pajares, 972 So. 2d 973, 977-78 (Fla. 3d DCA 2007) (“The arguments made by Pajares’ counsel, denigrating Carnival’s defense of Pajares’ claim and suggesting that Carnival should be punished for contesting liability, are the type of arguments previously condemned by this Court, and are equally condemned in the instant case.”); Cohen v. Philip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016); R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53 (Fla. 4th DCA 2016).

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