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Florida Third DCA affirms trial verdict for Engle-progeny tobacco litigation plaintiff, finds attorney's closing argument improper but no fundamental error in allowing argument

On October 18, 2017, in Philip Morris USA v. Ledoux, No. 3D16-675, the Florida Third DCA affirmed a trial verdict and final judgment in favor of the plaintiff in an Engle-progeny tobacco case. The defense argued on appeal that the trial court had erroneously overruled the defense’s objection to an allegedly improper closing argument made by plaintiff’s counsel. The plaintiff’s attorney had asked the jury to imagine the decedent’s surviving spouse reading an ad from the tobacco company in 1996 offering him $10 million to “watch your wife, the love of your life, choke and struggle and die in front of you. . .”

The defense objected that there was no evidence of this, but the trial court overruled the objection. While the Third DCA distinguished the argument from a “Golden Rule” violation – an improper argument which asks the jurors to place themselves in the plaintiff’s position – the Court nevertheless found it improper because “the argument was presented in an overly-dramatic manner such that it could evoke the jury’s sympathy.” However, the Court noted that the error asserted by the defense on appeal (that the argument was inflammatory) was not the error asserted at trial (that the argument was based on facts not in evidence). On that basis, the Court found no proper preservation of the objection for anything other than fundamental error analysis on appeal. See McDonald v. State, 743 So. 2d 501 (Fla. 1999); Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla. 1987) (holding that “to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court”); Connolly v. State, 172 So. 3d 893, 902 (Fla. 3d DCA 2015).

The Third DCA also rejected the defense argument that the trial court had improperly denied a motion for remittitur of the $10 million compensatory damage award. The Court noted the considerable deference given to a trial court in making such a determination and the deference properly given by the trial court to the jury in arriving at the award. The Third DCA quoted R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012) in this regard: “[t]he verdict should be disturbed only when it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”

Finally, the Third DCA rejected the defense argument that the trial court should have reduced the compensatory damage award based on the plaintiff’s comparative fault, concluding that this would be improper since the action was based on an intentional tort. In rejecting this argument, the Court approvingly cited the decision by the First DCA in in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013) and rejected the Fourth DCA’s contrary decision in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015).

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