R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company and Liggett Group, LLC v. Marvine Calloway, as Personal Representative of the Estate of Johnnie Calloway

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA INC.,
LORILLARD TOBACCO COMPANY and LIGGETT GROUP LLC,
Appellants,

v.

MARVINE CALLOWAY, as Personal Representative of the ESTATE OF
JOHNNIE CALLOWAY,
Appellee.

No. 4D12-3337

[January 6, 2016]

Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
No. 08-21770CACE.

Benjamine Reid and Cristina Alonso of Carlton Fields Jorden Burt, P.A.,
Miami, and Gregory G. Katsas and Charles R.A. Morse of Jones Day,
Washington, D.C. for appellant, R.J. Reynolds Tobacco Company.

Makai Fisher of Shook, Hardy & Bacon, L.L.P., San Francisco,
California, Geri E. Howell of Shook, Hardy & Bacon, L.L.P., Miami, and
Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C. for appellant,
Philip Morris USA Inc.

Elliot H. Scherker and Julissa Rodriguez of Greenberg Traurig, P.A.,
Miami, for appellant, Lorillard Tobacco Company.

Karen H. Curtis of Clarke Silverglate, P.A., Miami, and Kelly Anne
Luther and Ann M. St. Peter-Griffith of Kasowitz, Benson, Torres &
Friedman LLP, Miami, for appellant, Liggett Group LLC.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, Scott P. Schlesinger, Jonathan Gdanski and Steven J. Hammer of
Schlesinger Law Offices, P.A., Fort Lauderdale, John S. Mills and Courtney
Brewer of The Mills Firm, P.A., Tallahassee, and David J. Sales, Jupiter,
for appellee.

Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A.,
Miami, for Amicus Curiae, The Engle Plaintiffs.

MAY, J.

Tobacco defendants, R.J. Reynolds Tobacco Company (“RJ Reynolds”),
Philip Morris USA Inc. (“Philip Morris”), Lorillard Tobacco Company
(“Lorillard”),1 and Liggett Group LLC (“Liggett”), appeal a multi-million
dollar final judgment. They raise several issues common to all and some
individually.

They jointly argue the trial court erred in denying their motions for new
trial based upon the repeated inflammatory arguments of plaintiff’s
counsel. They jointly argue the court erred in instructing the jury on the
fraud-based claims. They jointly argue the compensatory and punitive
damage awards must be either reduced or set aside for various reasons.
They jointly argue the court erred in entering the final judgment jointly
and severally after the jury found Johnnie Calloway (“decedent”) to be at
fault. Lastly, they argue the use of the Engle2 findings violated due
process.

Liggett argues it, Philip Morris, and Lorillard are entitled to a credit
against the punitive damage award.

The plaintiff cross-appeals, arguing the trial court erred in sustaining
certain defense objections concerning plaintiff’s counsel’s arguments.

We reverse the final judgment in part and remand the case for a new
trial on the conspiracy and concealment counts, and on the entitlement to
and amount of punitive damages. We find no merit in the other issues
raised on direct appeal and cross-appeal.

The second amended complaint alleged counts against the defendants
for strict liability, negligence, fraudulent concealment, and conspiracy to
commit fraud by concealment. The plaintiff sought apportionment of fault
between the decedent and the defendants and among the defendants for
the negligence-based claims. The plaintiff also sought apportionment of
damages among the survivors and the estate.

1 As the result of a corporate merger, RJ Reynolds became the successor-by-
merger to Lorillard. On November 16, 2015, this Court granted RJ Reynolds’
motion to substitute in place of Lorillard and Lorillard’s counsel’s motion to
withdraw.
2 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

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 The trial court granted the defendants’ motion to trifurcate the trial.

 Phase I determined whether the plaintiff was an Engle class
member.

 Phase II determined causation, comparative fault,
compensatory damages, and entitlement to punitive damages.

 Phase III determined the amount of punitive damages.

Testimony revealed the decedent started smoking at fifteen, eventually
smoking up to three packs per day. Expert testimony established that
“nicotine addiction is a huge barrier to people having a free choice whether
to smoke” and most people continue to smoke because they are addicted,
not because they want to.

The plaintiff’s expert testified that during the decedent’s childhood,
tobacco companies spent billions of dollars to give the impression smoking
was okay. Tobacco companies used the Tobacco Institute, and the
Tobacco Industry Research Committee to accomplish this. The plaintiff
used video clips and testimony to show how the tobacco companies spun
the health concerns over cigarettes.

The decedent’s brother testified about the decedent’s exposure to the
tobacco companies’ messages. They saw ads claiming more doctors
smoked Camels, which led them to think “if it’s good enough for the
doctors, it should be good enough for everybody.”

In September 1991, the decedent suffered a heart attack and was
hospitalized for several weeks. In May 1992, the decedent was diagnosed
with bladder cancer. He returned home after chemotherapy, but was again
hospitalized when he collapsed. He soon died of septic shock. A doctor
connected the bladder cancer to his smoking and death. The decedent
died just before his twentieth wedding anniversary when his daughter was
around sixteen.

Throughout the trial, plaintiff’s counsel made numerous statements
that were objected to by defense counsel. The court sustained the
objections, instructed the jury to disregard the comments, and denied the
defense motions for mistrial.

The defendants moved for mistrial after closing and rebuttal, arguing
the singular and cumulative effect of plaintiff’s counsel’s improper
comments. They argued the comments were inflammatory, repeatedly

3
sustained, and were based on matters not in evidence. The court denied
the motions for mistrial.

The court refused to use the defense proposed reliance instruction for
the conspiracy and fraudulent concealment claims. The court instructed
the jury—over a defense objection—that the comparative fault findings
applied to only the non-intentional torts and the compensatory award
would not be comparatively reduced if the jury found for the plaintiff on
the intentional tort questions. The defendants argued this case was about
negligent products liability. The plaintiff responded that it was an
intentional tort case based upon fraudulent concealment.

In Phase I, the jury found the plaintiff was a member of the Engle class.
In Phase II, the jury found that, both before and after the trigger date for
the statute of repose, the defendants’ individual fraudulent concealment
and conspiracy to commit fraudulent concealment were all legal causes of
the decedent’s death. It awarded nine million dollars in non-economic
damages to the plaintiff and seven million one hundred thousand dollars
to the decedent’s daughter.3 It also found the plaintiff was entitled to
punitive damages. And, it apportioned the following liability among the
parties:

Parties % of Fault
Decedent 20.5%

Philip Morris 25%

RJ Reynolds 27%

Lorillard 18%

Liggett 9.5%

The court entered final judgment for compensatory damages against the
defendants jointly and severally. In Phase III, the jury assessed the
following punitive damages:

Defendant Punitive Damages
Philip Morris $17.4 million

RJ Reynolds $17.25 million

3The trial court struck the plaintiff’s and daughter’s combined four million four
hundred thousand dollar support and services awards.

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 Lorillard $12.6 million

Liggett $7.6 million

All the defendants moved for a new trial based upon plaintiff’s counsel’s
inflammatory statements during Phase II. They claimed error in the jury
instructions, and requested a reduction in compensatory damages. The
court denied the motions. Philip Morris, Lorillard, and Liggett moved to
strike the punitive damage awards based on a partial settlement
agreement reached with the Engle class. The court denied the motions.

Liggett moved for a judgment notwithstanding the verdict, a new trial,
and remittitur, arguing that plaintiff’s counsel made inflammatory
remarks during Phase III, and introduced financial evidence regarding
Liggett that was outside the record. It also argued the punitive and
compensatory damage awards were excessive. The court denied the
motions. The defendants filed their notice of appeal and the plaintiff cross-
appealed.

We address three issues in this opinion: (1) plaintiff’s counsel’s
comments; (2) the jury instructions; and (3) the application of comparative
negligence.

With regard to the comments made by plaintiff’s counsel, suffice it to
say that he pushed the envelope at every turn. The comments included
an attack on defense witnesses, golden rule arguments, and an
argumentative opening statement. The trial court diligently sustained
objections, instructed the jury to disregard them; and denied numerous
motions for mistrial. The problem was the constant need to have the trial
court rule on these objections, forcing the court to fix the damage by
instructing the jury to disregard the improper comments. We do not find
error in the court’s rulings, but we call counsel’s attention to the
numerous, unnecessary, and improper remarks. They injected potential
error at every turn, and nearly caused us to reverse the judgment. They
are the subject of Judge Klingensmith’s dissent.

The defendants argue the court’s refusal to instruct the jury on the
detrimental reliance element of the fraud-based claims warrants a new
trial on those claims. The plaintiff responds that the court’s instruction
sufficiently covered the reliance element and the defendants’ proposed
instruction misstated the law. We disagree with the plaintiff and reverse
the judgment on the fraud-based claims.

5
 Here, the defendants requested a reliance instruction because it was
an essential element of the fraudulent concealment and conspiracy to
commit fraudulent concealment claims. R.J. Reynolds Tobacco Co. v.
Buonomo, 138 So. 3d 1049, 1051 (Fla. 4th DCA 2013); Philip Morris USA,
Inc. v. Kayton, 104 So. 3d 1145, 1150–51 (Fla. 4th DCA 2012). Their
defense was that the decedent did not detrimentally rely on any concealed
information. The proposed detrimental reliance instruction read:

A Defendant cannot be held liable for fraudulent
concealment for failing to make any statements to [the
decedent] regarding the potential health effects of smoking
cigarettes, the potentially addictive nature of smoking
cigarettes, or any other issue. A Defendant can only be held
liable for fraudulent concealment if you find that the
Defendant made a statement that was misleading to [the
decedent] because it concealed or omitted a material fact not
otherwise known or available regarding the potential health
effects of smoking cigarettes and/or the potentially addictive
nature of smoking cigarettes.

A material fact is one that is of such importance that [the
decedent] would not have acted as he did but for the
concealment or omission of that fact.

The concealment or omission of a material fact is a legal
cause of death if it directly and in natural and continuous
sequence produces or contributes substantially to producing
such death, so that it can reasonably be said that, but for the
concealment or omission of a material fact, the death would
not have occurred. This means that Plaintiff must prove, for
each Defendant, that but for [the decedent’s] reliance on a
statement by that Defendant concealing or omitting a material
fact not otherwise known or available, [the decedent] would
have acted differently and avoided his death from a smoking-
related disease. [The decedent] cannot be found to have
reasonably relied on a statement if he knew it was false or its
falsity was obvious to him, or if the fact allegedly concealed
was already known to him.

The court stated that “there has to be some element of reliance,” but denied
the requested jury instruction because it might have confused the jury.
The court then instructed the jury, in part:

6
 The issue for your determination on plaintiff’s concealment
claim as to each defendant is whether the concealment of the
defendants was a legal cause of [the decedent’s] death.

Concealment is a legal cause of death if it directly and in
natural and continuous sequence produces or contributes
substantially to producing such death, so that it can
reasonably be said that, but for the concealment, the death
would not have occurred.

Noticeably absent from the instruction given is the element of detrimental
reliance.

A trial court abuses its discretion when it fails to give a proposed
instruction that accurately states the law, is supported by the facts, and
is necessary for the jury’s proper resolution of the issue, so long as the
substance is not covered by another instruction and the failure to instruct
is prejudicial. R.J. Reynolds Tobacco Co. v. Jewett, 106 So. 3d 465, 467
(Fla. 1st DCA 2012) (citations omitted).

Engle reiterated the elements to be proven for fraudulent concealment
and conspiracy to commit fraudulent concealment claims. The “plaintiff
still must prove detrimental reliance upon the [defendant’s]
misinformation.” Buonomo, 138 So. 3d at 1051.

Florida law imposes a reliance requirement in an omissions
case, which cannot be satisfied by assumptions. Florida law
also requires a party asserting fraud to establish that but for
the alleged misrepresentation or nondisclosure, the party
would not have entered the transaction. If a plaintiff claims
to be misled, but cannot demonstrate a causal connection
between the defendant’s conduct and the plaintiff’s
misapprehension, the plaintiff cannot recover.

Humana, Inc. v. Castillo, 728 So. 2d 261, 265 (Fla. 2d DCA 1999) (internal
citations omitted).

Florida’s written opinions have consistently included detrimental
reliance as an element in fraudulent concealment instructions. See, e.g.,
R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1065–66, 1068 (Fla.
1st DCA 2010) (stating that the trial court instructed the jury on reliance
and that “detrimental reliance on misinformation” is an element of
fraudulent concealment). “Engle-progeny plaintiffs must certainly prove
detrimental reliance in order to prevail on their fraudulent concealment

7
claims.” Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 698 (Fla. 2015).
Reliance is an element of fraudulent concealment, which needs to be
proven separate from causation. Kayton, 104 So. 3d at 1150–51; see
Engle, 945 So. 2d at 1255.

“[I]n a post-Engle case, a plaintiff alleging fraudulent concealment need
only prove that he or she detrimentally relied upon the defendant tobacco
corporation’s misinformation.” Kayton, 104 So. 3d at 1150 (emphasis
added). “Similarly, a plaintiff claiming conspiracy to commit fraudulent
concealment in an Engle progeny case need only prove that he or she
detrimentally relied upon deceptive statements made by a member of the
conspiracy.” Id. (emphasis added).

The detrimental reliance element was not covered by the instructions
given; its omission prejudiced the tobacco companies’ defense. The
instructions were insufficient for the jury’s consideration of the fraudulent
concealment and conspiracy to commit fraudulent concealment claims.
We must therefore reverse the judgment as to these two claims, and
remand the case for a new trial on these claims.

Because we reverse the judgment on the two claims that serve as the
basis for the imposition of punitive damages, we must also reverse the
punitive damages award. See R.J. Reynolds Tobacco Co. v. Ciccone, 123
So. 3d 604, 616–17 (Fla. 4th DCA 2013). We remand the case for a new
trial on the entitlement to, and amount of, punitive damages.

We next address whether the court erred in failing to reduce the
compensatory damage award based on the jury’s finding that the decedent
was 20.5% comparatively negligent.

The defendants argue that because all the claims were based upon a
products liability theory, the court should have reduced the awards by the
percentage of the decedent’s comparative negligence. The plaintiff
responds that the decedent’s comparative negligence does not apply to
intentional torts, even when joined with negligence claims.

In R.J. Reynolds Tobacco Co. v. Schoeff, 40 Fla. L. Weekly D2477 (Fla.
4th DCA Nov. 4, 2015), we recently held that a de novo standard applies
to this issue. Applying that standard, we held that whether conduct in the
context of a tobacco action is considered negligent or intentional,
comparative negligence applies. See Schoeff, 40 Fla. L. Weekly at D2480.

8
 Sections 768.81(2) and (4), Florida Statutes (1992),4 provide, in part,
that in “negligence cases,” the claimant’s contributory fault “diminishes
proportionately the amount awarded as economic and noneconomic
damages for an injury attributable to the claimant’s contributory fault,”
however, it does not prevent recovery. § 768.81(2), (4), Fla. Stat. The term
“negligence cases” “includes, but is not limited to, civil actions for damages
based upon theories of negligence, strict liability, products liability,
professional malpractice whether couched in terms of contract or tort, or
breach of warranty and like theories.” Id. § 768.81(4)(a).

In deciding whether a case constitutes a “negligence case,” courts must
examine “the substance of the action and not the conclusory terms used
by the parties.” Id. If the action is based upon an intentional tort,
compensatory damages cannot be reduced by the plaintiff’s contributory
fault. Id. § 768.81(4)(b).

Here, the trial court remarked:

If the judgment were solely being entered based on the
Plaintiff’s strict liability and negligence claims, the non-
economic damages would be reduced based on the jury’s
comparative fault findings. But because the Plaintiff also
prevailed on her intentional tort claims, she is entitled to
recover her full non-economic damages without regard to
comparative fault as the jury was advised.

The trial court failed, however, to look to the substance of the action to
determine if the claims were grounded in negligence as required by section
768.81(4)(a). Under Schoeff, this case is based upon conduct grounded in
negligence. While the trial court did not have the benefit of Schoeff when
it ruled on the issue, Schoeff now requires application of comparative
negligence to the plaintiff’s fraud-based claims. Schoeff, 40 Fla. L. Weekly
at D2480.

As we have reversed the fraud-based claims, comparative negligence
must be applied to the remaining negligence claims. If upon remand, the
plaintiff chooses to retry the intentional tort claims, under Schoeff, the
decedent’s comparative fault should be applied to the intentional tort
claims as well. See id.

4 Both parties agree that the 1992 version is applicable here. See, e.g., D’Angelo
v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla. 2003).

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 For the reasons expressed in this opinion, we reverse the judgment
based on the fraudulent concealment and conspiracy to commit
fraudulent concealment claims. We reverse the punitive damages award.
We remand for a new trial on these issues. Alternatively, should the
plaintiff choose not to proceed with a new trial, then the trial court should
apply the decedent’s comparative negligence and apportion the
compensatory damages accordingly.

TAYLOR, J., concurs specially with opinion.
KLINGENSMITH, J., dissents with opinion.

TAYLOR, J., concurring specially.

I concur in the majority’s decision affirming the trial court’s denial of
appellants’ motion for a new trial based on their claims of improper
argument. Trial courts have broad discretion in ruling on motions for
mistrial or new trial based on claims of improper argument. Philippon v.
Screffler, 33 So. 3d 704, 709 (Fla. 4th DCA 2010), called into doubt on other
grounds by Allstate Ins. Co. v. Marotta, 125 So. 3d 956 (Fla. 4th DCA 2013).
In this nearly two-month trial, given the circumstances and evidence in
the case, these comments were not so prejudicial and inflammatory as to
deprive defendants of a fair trial. In virtually every Engle progeny trial, the
jury is required to consider whether the defendants’ conduct warrants
punitive damages. Whether it is appropriate in any case to impose
punitive damages concerns the reprehensibility of the defendant’s
conduct, which in turn involves consideration of whether the defendant
recognizes that its conduct was wrongful. See, e.g., BMW, Inc. v. Gore, 517
U.S. 559 (1996).

Based on our court’s recent decision in R.J. Reynolds Tobacco Co. v.
Schoeff, 40 Fla. L. Weekly D2477 (Fla. 4th DCA Nov. 4, 2015), I agree that
we must reverse the trial court’s failure to reduce the compensatory
damage award based on the jury’s finding that the decedent was 20.5%
comparatively negligent. However, as I stated in my dissent in Schoeff, I
do not agree that these tobacco lawsuits are based on conduct grounded
in negligence. The “core” of Engle progeny cases is intentional misconduct.
R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849, 852 (Fla. 1st DCA
2013). Even though strict liability and negligence claims are included in
the complaint, the lawsuit essentially alleges intentional misconduct: that
the tobacco company intentionally designed its products in a defective
manner and pursued a callous and intentional course of tortious conduct
by fraudulent concealment. I would therefore not apply comparative
negligence to the compensatory damage awards in this case, nor, on

10
retrial, apply comparative negligence to jury awards for any fraud-based
claims

KLINGENSMITH, J., dissenting.

I dissent from the majority decision. In doing so, I wish to expound on
a problematic issue which was touched upon briefly in the opinion. That
issue involves the comments and argument of plaintiff’s counsel, and
whether they were so improper that their cumulative effect during the
Phase II proceedings was such that the jury verdict was unduly based
upon passion and prejudice. I believe that it was.

I have no desire to drastically lengthen this opinion by commenting on
each and every one of the improper remarks that counsel made to the jury.
Suffice it to say there were many. Some were met with an objection by
opposing counsel, while many others were not. The court repeatedly
instructed the jury to disregard plaintiff’s counsel’s comments, while at
other times the comments provoked motions for mistrial after the court
sustained the objection.

The tobacco defendants argued for a new trial based on the singular
and cumulative effect of plaintiff’s counsel’s improper comments on the
basis that they were numerous, inflammatory, repeatedly sustained, and
injected matters not in evidence. The court denied each and every motion
for mistrial made throughout the trial. I will address only a few of the more
egregious remarks that occurred during the Phase II proceedings.

Over the course of plaintiff’s counsel’s thirty-three page opening at the
start of Phase II, the court sustained fourteen separate defense objections
to counsel’s argumentative comments that included the following:

• “That’s what this case is about: Money. Billions of dollars.
You’re going to hear how much money these companies make
every day.”

• Commenting that tobacco industry executives went on TV
with a cigarette in their hand and said, “If we find anything
harmful, we’ll remove it.” Plaintiff’s counsel then commented,
“They knew back in 1953. That’s disgraceful. That’s a
disgraceful way to run a company.”

• “That’s what these companies do. That’s shameful.”

• “That kind of conduct . . . should not be accepted.”

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 • Plaintiff’s counsel stated that the tobacco defendants said
after Engle, “Smoking is addictive and it does cause cancer.
You got us. Sorry.” He then stated, “Guess what? They
should have to apologize, but they won’t.”

• “Their conduct should not be tolerated.”

• “[Y]ou are going to learn a lot about this cigarette industry.
Things that will shock and appall you.”

During the Phase II closing and rebuttal, plaintiff’s counsel made
several other improper comments attacking defense counsel and the
tobacco companies’ alleged failure to accept responsibility. Some
examples where the court sustained objections included:

• “[W]e’re also going to ask you to consider punitive damages
against these defendants, because what they did should not
be tolerated. What they did for over 50 years should not be
tolerated. And, really, what they did in this courtroom over
these last five, six weeks shouldn’t be–.”

• “This conduct was reprehensible. That’s the concept we’re
talking about. Reprehensible conduct. There’s two phases–
there’s three phases to this trial. These people never give up.”

• “They won’t even take the responsibility to say, you know
what? These findings are the law and we accept it. They won’t
even do that.”

• “[The plaintiff] acknowledged that acceptance of
responsibility; and yet the tobacco companies come in here
and don’t accept any for their behavior over the past 50-plus
years. There’s something wrong with that.”

• Plaintiff’s counsel discussed the trial phases and said,
“And so far not a single solitary human being on this side has
said: I accept some responsibility. Not an iota of it, not a
percentage point, nothing.”

We have recently held that, “[i]t is improper for counsel to suggest in
closing argument that a ‘defendant should be punished for contesting
damages at trial’ or that defending a ‘claim in court’ is improper.” Allstate
Ins. Co. v. Marotta, 125 So. 3d 956, 960 (Fla. 4th DCA 2013) (citation

12
omitted). We addressed similar comments disparaging defendants for
failing to take responsibility in cases such as Philip Morris USA, Inc. v.
Tullo, 121 So. 3d 595, 598 (Fla. 4th DCA 2013), and Intramed, Inc. v.
Guider, 93 So. 3d 503, 507 (Fla. 4th DCA 2012), and found them to be
improper as well.

In Tullo, plaintiff’s counsel made numerous comments at trial about the
defendant’s failure to accept responsibility, including other comments
such as comparing the defendants’ behavior to that of heroin dealers. 121
So. 3d at 598. Unlike the instant case, the defendants in Tullo did not
contemporaneously object to these comments. Id. We concluded that the
comments were improper and stated:

The comments referring to the Tobacco Companies’ failure to
take responsibility for their actions fall under the umbrella of
our recent opinions in [Marotta, 125 So. 3d at 958–59], and
[Intramed, 93 So. 3d at 507], wherein we held that it is
improper for a plaintiff’s counsel to disparage the defendant
for defending itself and for failing to take responsibility for its
actions.

Id. at 601.

Nevertheless, we affirmed the judgment against the tobacco companies
because defense counsel failed to object and preserve the errors for
appellate review, and the comments did not constitute fundamental error
under the four-part test established by the Florida Supreme Court in
Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000).
Id. at 601–02.

Here, defense counsel did object to the comments, making this case
more analogous to Marotta and Intramed. In Marotta, we reversed the final
judgment rendered based on similar improper comments made by counsel
in closing argument, which occurred in combination with an improper
cross-examination of a witness. 125 So. 3d at 962. In Intramed, we also
reversed the final judgment and remanded for a new trial on damages
based on such disparaging comments. 93 So. 3d at 507. There is no
logical distinction that can be drawn between those cases and plaintiff’s
counsel’s arguments in this case.

This court has applied Intramed and found such comments to be
sufficiently egregious to warrant a new trial. See Hill v. New Horizons of
the Treasure Coast, Inc., 151 So. 3d 47, 48 (Fla. 4th DCA 2014). Although
plaintiff asserts that the punitive damages claim made these comments

13
appropriate because the issue of entitlement to such damages was at issue
in Phase II, so too was the claim for compensatory damages. Intramed, 93
So. 3d at 507 (“The purpose of damages here was to compensate, not to
make the defendant care, ‘take responsibility,’ or say it was sorry.”).
Despite plaintiff’s assertion to the contrary, an argument that the jury
should punish a defendant for defending itself or failing to admit
responsibility is well outside the bounds of proper advocacy.

A party may not give a closing argument, as plaintiffs did in this case,
that is “designed to inflame the emotions of the jury rather than prompt a
‘logical analysis of the evidence in light of the applicable law.’” Id. (quoting
Murphy, 766 So. 2d at 1028). Examples of comments made in this trial,
all of which had objections sustained, include:

• “[The Tobacco Companies] never give up. There are no
corporate representatives here.” “There are no corporate
representatives here. There are lawyers here.”

• “If you want to be treated like a person, act like a person.
Behave like a person.”

• “[T]he fact of those things . . . is that intentional wrongful
conduct, the recklessness towards human life, the
indifference towards human life. That which though, not
criminal, virtually is criminal. And if you kill somebody for
money . . . that’s criminal.”

• “If you exchange a human life and make a decision – you
know, back in the day they had that big case about the Ford
Pinto and it caught fire.”

• “They are addicted to money, not by the hundreds of
dollars or the thousands of dollars, or the millions, but the
billions. Do you know how much power that industry has?”

Some of the arguments referenced above are also objectionable because
they “suggest[] [a party] is doing something wrong by . . . not showing
proper sympathy or empathy.” City of Orlando v. Piniero, 66 So. 3d 1064,
1073 n.10 (Fla. 5th DCA 2011). Comments referencing the absence of
corporate representatives at trial unfairly implied that the appellants were
not showing proper respect for the trial, the decedent, and the plaintiff.

Plaintiff’s counsel also chose to inject himself into the case with various
gratuitous remarks during closing argument:

14
 • “Everything you want to know about the damages in this
case . . . [the daughter] told you. You know, I was sitting over
there and I was bawling, I don’t know why.”

• “I have a daughter the same age. I will be 59, I have a 17-
year-old. Same age.”

These comments were designed for no other purpose than to
inappropriately evoke sympathy from the jury. See Cascanet v. Allen, 83
So. 3d 759, 764 (Fla. 5th DCA 2011) (“[C]ourts have consistently
prohibited a party from currying sympathy from the jury for a favorable
verdict and asking a jury to consider the economic status of either party
. . . .”); see also Russell, Inc. v. Trento, 445 So. 2d 390, 392 (Fla. 3d DCA
1984) (“Remarks made solely for the purpose of evoking sympathy for the
plaintiff and of such a character that neither rebuke nor retraction will
destroy their prejudicial, sinister influence warrant a new trial.”).

Plaintiff argues that the comments, taken as a whole, should not be
considered harmful under the second prong of the Murphy test, as we held
in Tullo. However, the Florida Supreme Court has changed the “harmless
error” analysis since the Tullo decision issued. Specifically, the court
announced that now “the beneficiary of the error has the burden to prove
that the error complained of did not contribute to the verdict. Alternatively
stated, the beneficiary of the error must prove that there is no reasonable
possibility that the error contributed to the verdict.” Special v. W. Boca
Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (emphasis added).

The court explained that this “no reasonable possibility test” properly
places the burden on the party who invited the error. See id. at 1257–61
(concluding that the trial court erred by sustaining defendants’ objection
and prohibiting plaintiff from asking certain questions of an expert witness
on cross-examination, and that under the new test the error was not
harmless). As Justice Lewis noted, “[p]lacing the burden on the party that
introduced the error serves not only to penalize the offending party, but
also discourages future efforts to introduce error into proceedings.” Id. at
1272 (Lewis, J., concurring in part, dissenting in part).

“[I]n evaluating whether the errors were harmless, we may consider ‘the
cumulative effect’ of preserved and unpreserved error.” Marotta, 125 So.
3d at 961 (citation omitted). Here, the plaintiff clearly invited the many
errors complained of, and now has the burden of proving that there was
no reasonable possibility the comments could have affected the outcome.
Special, 160 So. 3d at 1256. The plaintiff did not meet that burden, and

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the majority does not and cannot provide persuasive support for their
conclusion that it did.

Confronted with the task of ruling on these improper comments, the
majority correctly concludes that the trial court timely and properly
sustained defense counsel’s objections, though it denied the numerous
motions for mistrial. Of note, however, is the fact that the record reflects
no significant admonishment of any kind was delivered by the court, even
after plaintiff’s counsel chose to continue with similar improper comments
when the defendants’ objections had been sustained. The defense’s
repeated objections, many of which were sustained, should have been
sufficient to alert the court to the impermissible nature of these comments.
Advising counsel to simply “move on” to another line of questioning was
wholly inadequate. As a result, the prejudicial effect of these comments
was compounded by the trial court’s failure to attempt any real
intervention to curb them. The following exchange illustrates this point:

Plaintiff’s Counsel: “In one way or the other, whatever your
faith, whatever your religion is, everyone knows that amongst
Adam and Eve and the serpent, the serpent is blame ridden.
And that’s one of the questions you need to ask. In the
temptation of the fruit of these nicotine-laced drug delivery
devices–”

Defense Counsel: Objection.

Court: Sustained[.]

Plaintiff’s counsel nonetheless continued:

Plaintiff’s Counsel: “[I]s the cigarette industry blameless?”

Defense Counsel: Objection.

Plaintiff’s Counsel: “Is the serpent blameless?”

Defense Counsel: Objection.

Court: Sustained. Counsel I sustained that analogy, so move
on.

The connotation of this analogy was that the tobacco companies are the
“serpent” (i.e., the devil), and are blameworthy even though the decedent
chose to begin smoking—just as Eve also chose to eat the forbidden fruit.

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The court clearly sustained the objection to the use of this analogy, yet
plaintiff’s counsel nonetheless continued with it. Moreover, defense
counsel had made an earlier objection regarding the improper nature of
this argument during voir dire, and the court sustained that objection.
Plaintiff’s counsel disregarded that ruling by using the analogy once again
in his Phase II closing—all without any meaningful admonition from the
trial court against engaging in this conduct.

A trial judge retains the ultimate responsibility to ensure proper
behavior of trial counsel and fair trial proceedings in his or her courtroom.
To quote the Third District, “it is no longer—if it ever was—acceptable for
the judiciary to act simply as a fight promoter, who supplies an arena in
which parties may fight it out on unseemly terms of their own choosing
. . . .” Borden, Inc. v. Young, 479 So. 2d 850, 851 (Fla. 3d DCA 1985). Here
the trial court’s duty was clear—to respond to such behavior by curbing
multiple instances of improper argument and ensuring that the jury was
not being led astray by repeated objectionable comments. A trial judge
should respond to such improper argument in a timely and consistent
manner, and issue proportional rebukes when repeated instances occur.

This is especially true in lengthy, high-stakes cases where a trial court’s
failure to control the litigants not only deprives the parties of a fair trial,
but can ultimately result in scarce judicial resources being consumed
when the case is remanded for re-trial based on those actions. As this
court has previously stated, the task is not so difficult that trial judges are
unable to understand when they should exercise this authority:

It is the trial court’s responsibility, when objections are made
to improper argument, to sustain the objections and let
counsel know that these tactics will not be tolerated. Since
the basic parameters of proper argument are the issues
reflected in the pleadings; the facts shown by the evidence and
the inferences to be drawn therefrom; and the instructions
given to the jury, with some latitude for rhetoric, it should not
be difficult for trial judges to recognize when counsel are
exceeding the bounds of propriety.

Bellsouth Human Res. Admin., Inc. v. Colatarci, 641 So. 2d 427, 430 (Fla.
4th DCA 1994) (footnote omitted).

As the Third District has recognized:

When objections are sustained and the trial court considers it
proper to admonish counsel, it should be done outside the

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 jury’s presence. However, if counsel continues to engage in
improper comments and arguments, the trial judge should
admonish counsel and advise them that future improper
tactics will cause counsel to be rebuked before the jury. This
has a magical effect! Trial counsel realize that for the
impartial judge to rebuke him or her in the jury’s presence
can seriously undermine their rapport with a jury.

Gomez v. State, 751 So. 2d 630, 633 (Fla. 3d DCA 1999).

These cases make clear that a timely and appropriate admonition of
counsel avoids the possibility that the offending conduct will continue, and
hopefully forestalls the accumulation of prejudice that occurs when such
repeated improprieties are not effectively addressed. Regrettably, the trial
court did not adequately perform its duty to prevent the conduct described
herein. As one of the aforementioned examples from this case indicates,
after the court sustained fourteen objections over the course of a mere thirty-
three pages of trial transcript, the court took no further action. Apart from
the deleterious effects that judicial inaction may cause in any given case,
the failure of our trial courts to effectively deal with such conduct can in a
broader sense only lead to emulation by other attorneys. Dismissing such
occurrences as mere “harmless error” encourages “Rambo” litigators,
intent on engaging in no-holds-barred tactics at trial, to roll the dice in the
appellate courts. If that occurs, the entire judicial system suffers.

The number of improper comments and arguments in this case is
extremely troubling, and leads to the inescapable conclusion that they
were part of plaintiff’s counsel’s overall trial strategy. These comments
were neither isolated nor incidental. When considered in the aggregate it
is obvious they created a negative synergistic effect, exacerbating the
degree of unfairness to the defendants.

To summarize, the plaintiff’s opening statement was overly
argumentative and included comments chastising the tobacco companies
for their failure to apologize. Their closing argument included
inflammatory remarks; statements evoking sympathy from the jury;
inappropriate religious references; comments about the defendants not
taking responsibility; attacks for electing to defend the case; and
insinuations regarding the failure of the defendants’ corporate
representatives to attend the trial. Taking into account all of the preserved
objections to the improper comments in plaintiff’s counsel’s opening and
closing as referenced above, the cumulative impact of these errors created
an atmosphere of “win at all costs.”

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 In Tullo, we sent a gentle message to lawyers pertaining to how future
cases should be handled, and cautioned counsel to “be vigilant in crafting
closing arguments that fall within the confines of permissibility.” 121 So.
3d at 602. Unfortunately, we have seen many recent cases where this
warning was either misunderstood or simply ignored. In this dissenting
opinion, I hope to make that warning clearer. Attorneys who engage in
such tactics in the future do so at their own peril, and the peril of their
clients, by risking the reversal of their cases on appeal.

To hold, as the majority does, that these comments and arguments
amount to “harmless errors” ignores the body of case law from this court
holding otherwise. Therefore, I believe that a new trial is required in this
case on both the Phase II and Phase III claims.

* * *

Not final until disposition of timely filed motion for rehearing.

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