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Florida Fourth DCA reverses judgment for plaintiff in tobacco litigation case and remands for new trial based on improper closing argument by plaintiff’s counsel likening defendant to Orwellian “Big Brother”

On June 30, 2021, in R.J. Reynolds Tobacco Company, et al. v. Mahfuz, No. 4D19-2236, the Florida Fourth DCA reversed a judgment for the plaintiff in a tobacco litigation case, finding that statements made by the plaintiff’s attorney during closing argument were improper. The statements included comparing the defendant tobacco company to “Big Brother” from George Orwell’s novel 1984 and likening the defendant to a “totalitarian state” that “can monitor everybody.” The Fourth DCA concluded that the passage from the novel quoted by plaintiff’s counsel bore no relation to the evidence in the case and noted that the Court had addressed an attorney’s recitation of the same passagein a tobacco case decided the previous week, R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-2880 (Fla. 4th DCA June 23, 2021). In Kaplan, the Court found the statements improper but nevertheless affirmed the judgment because “the verdict returned by the jury in each phase was far less than requested by Plaintiff’s counsel.” The Fourth DCA distinguished this case, in which the jury awarded the full $12 million requested by plaintiff’s counsel. Judge Gross wrote a concurring opinion in which he argued that while the majority’s result was dictated by Kaplan, he believes that the decided cases “inappropriately deter metaphorical speech, which, as George Orwell has written, ‘assists thought by evoking a visual image.’”