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Florida Fourth DCA reverses $10 million verdict for plaintiff in Engle-progeny tobacco case, finding that trial court abused its discretion in overruling defense objections to several improper statements made by plaintiff’s counsel in closing arguments

On July 14, 2021, in R.J. Reynolds Tobacco Company et al. v. Neff, No. 4D19-2646, the Florida Fourth DCA reversed a $10 million jury verdict for the plaintiff in an Engle-progeny tobacco brought by the Estate of a smoker who died from lung cancer. The Fourth DCA concluded that the trial court had abused its discretion in overruling defense objections and motions for mistrial based on several statements made by plaintiff’s counsel in closing arguments, including (a) quoting from Orwell’s 1984, (b) quoting from Dr. Martin Luther King King, (c) referring to the tobacco industry as an “enterprise of death,” (d) misstating the evidence, (e) attacking the defense counsel’s personal opinion. The Fourth DCA observed that 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. Further, in evaluating whether the errors were harmless, the appellate court may consider the cumulative effect of preserved and unpreserved error. The Fourth DCA noted that on at least four prior occasions, the court had addressed improper inflammatory closing arguments appealing to passion by the same attorney, including a case decided the previous month involving the same quote from Orwell’s 1984. See R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-2880, 2021 WL 2559664 (Fla. 4th DCA June 23, 2021). Although the Fourth DCA 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.” 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.” The Fourth DCA noted that, unlike in Kaplan, here the verdict returned by the jury was not far less than the amount requested by plaintiff’s counsel, and most importantly, the improper comments in the instant case were not brief and isolated but rather pervaded the entire closing argument.