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Florida First DCA affirms judgment against defendant tobacco company despite erroneous special jury instruction because jury could have decided case on other grounds

On October 11, 2017, in R.J. Reynolds Tobacco Company v. O’Hara, Case No. 1D15-5764, the Florida First DCA affirmed a judgment against the defendant tobacco company notwithstanding the fact that the Court concluded that the trial judge had erroneously permitted a special jury instruction requested by the plaintiff. The instruction provided that the plaintiff was not required to provide direct evidence of the decedent’s reliance on misleading advertising by the defendant and that the jury could infer such reliance if the evidence as a whole supported such an inference. Plaintiff’s counsel had argued that the special instruction was necessary to prevent defense counsel from arguing to the jury that the plaintiff had not proven her case because there was no evidence that the decedent ever actually heard or read any of the misleading statements. Defense counsel noted that there was no precedent in Florida for such a special instruction. The First DCA noted that jury instructions are not designed to be used as pre-emptive shields to stave off a party’s ability to argue its case and that the standard instruction allowing the jury to “draw reasonable inferences from the evidence” was sufficient. However, the First DCA cited Golian v. Wollschlager, 893 So. 2d 666, 667 (Fla. 1st DCA 2005) in support of its conclusion that the jury instruction decision would not be disturbed on appeal “absent “a clear demonstration that prejudicial error occurred.” This could not be demonstrated because the jury had been instructed that it could find for the plaintiff if the plaintiff showed eitherreasonable reliance on the advertising by the plaintiff or omission or concealment of the information by the defendant that was a legal cause of the cancer. Since no special verdict form was provided on causation, it could not be determined whether the contested jury instruction affected the verdict.

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