R.J. Reynolds Tobacco Co. v. Diane Schleider, Etc.

Third District Court of Appeal
State of Florida

Opinion filed December 26, 2018.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15-1634
Lower Tribunal No. 13-6984

________________

R.J. Reynolds Tobacco Company,
Appellant/Cross-Appellee,

vs.

Diane Schleider, etc.,
Appellee/Cross-Appellant.

An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.

King & Spalding LLP, and William L. Durham II, Chad A. Peterson, Val
Leppert (Atlanta, Georgia), and Scott M. Edson and Ashley C. Parrish (Washington,
DC); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Douglas J. Chumbley,
Jeffrey A. Cohen, and Olga M. Vieira, for appellant/cross-appellee.

Alex Alvarez; Gary M. Paige (Davie, Florida); The Mills Firm, P.A., and John
S. Mills and Courtney Brewer (Tallahassee), for appellee/cross-appellant.

Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.

LOGUE, J.
 R.J. Reynolds Tobacco Company appeals the final judgment entered in favor

of Diane Schleider, the wife and personal representative of the Estate of Andrew

Schleider, and Suzanne LeMehaute, their daughter. We affirm and write only to

address R.J. Reynolds’ challenge to the closing arguments and the size of the damage

awards.

Background

Andrew Schleider, a cigarette smoker, died from lung cancer and chronic

obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in

her capacity as personal representative of his estate alleging she and their daughter

were statutory survivors within the meaning of Florida’s Wrongful Death Act. The

complaint alleged the father was a member of the class created in Engle v. Liggett

Group., Inc., 945 So. 2d 1246 (Fla. 2006). Under Engle, if the plaintiff qualifies as

a member of the class, certain facts are found against the defendant tobacco company

as a matter of res judicata without the need of further proof.1

1
The findings include:

(i) “that smoking cigarettes causes” certain named diseases including COPD
[chronic obstructive pulmonary disease] and lung cancer; (ii) “that nicotine in
cigarettes is addictive;” (iii) “that the [Engle] defendants placed cigarettes on
the market that were defective and unreasonably dangerous;” (iv) “that the
[Engle] defendants concealed or omitted material information not otherwise
known or available knowing that the material was false or misleading or failed
to disclose a material fact concerning the health effects or addictive nature of
smoking cigarettes or both;” (v) “that the [Engle] defendants agreed to conceal
or omit information regarding the health effects of cigarettes or their addictive

2
 One of the prerequisites for Engle class membership is that the decedent’s

disease manifested on or before November 21, 1996. Id. at 1275. The issue of when

the father’s disease manifested was one of the main issues at trial and the jury’s

finding in favor of the wife and daughter is challenged on appeal, but we affirm that

point without discussion.

The trial spanned nearly three weeks. In addition to the evidence presented at

trial, the jury was instructed on specific findings it must apply if, as occurred,

Schleider was found to be a member of the Engle class. The instructions read to the

jury were:

1. Smoking cigarettes causes lung cancer.

2. Cigarettes that contain nicotine are addictive.

3. Defendant, R.J. Reynolds Tobacco Company, placed cigarettes on
the market that were defective and unreasonably dangerous.

4. Defendant, R.J. Reynolds Tobacco Company, concealed or omitted
material information not otherwise known or available knowing that the
material was false and misleading or failed to disclose a material fact

nature with the intention that smokers and the public would rely on this
information to their detriment;” (vi) “that all of the [Engle] defendants sold or
supplied cigarettes that were defective;” (vii) “that all of the [Engle]
defendants sold or supplied cigarettes that, at the time of sale or supply, did
not conform to representations of fact made by said defendants;” and (viii)
“that all of the [Engle] defendants were negligent.” Id. at 1276–77.

Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla. 2013) (footnote
omitted).

3
 concerning the health effects or addictive nature of smoking cigarettes
or both.

5. Defendant, R.J. Reynolds Tobacco Company, entered into an
agreement with other companies and industry organizations to conceal
or omit information regarding the health effects of cigarettes or their
addictive nature with the intention that smokers and the public would
rely on this information to their detriment. Those companies include
Philip Morris, USA, Inc., Lorillard Tobacco Company, Lorillard, Inc.,
Brown & Williamson Tobacco Corporation, individually and as a
successor by merger to the American Tobacco Company, and Liggett
Group, Inc. The industry organizations are the Council for Tobacco
Research USA, Inc., and the Tobacco Institute, Inc.

Defendant R.J. Reynolds Tobacco Company was negligent. These
findings may not be denied or questioned and they may carry – they
must carry the same weight they would have if you had determined
them yourselves.

....

The findings may not be considered in any way when determining
whether punitive damages may be warranted. You must make your
determination regarding whether punitive may be warranted based only
upon the factual evidence presented to you in the trial.

(Emphasis added). These instructions specified that R.J. Reynolds intentionally

concealed facts regarding the dangers and addictive qualities of cigarettes.

Evidence was presented throughout the trial indicating the tobacco industry

spent approximately $250 billion dollars between 1940 and 2005 to promote and

advertise cigarettes. The jury also heard evidence regarding the tobacco industry’s

lobbying efforts and attempts to conceal the hazards of smoking. In addition, the

4
jury heard from R.J. Reynolds’ own corporate representative that 400,000 to 480,000

people were dying each year from smoking cigarettes.2

During the closing arguments addressing entitlement to punitive damages, the

Plaintiffs’ attorney made various arguments dramatizing the number of deaths

caused by cigarettes and the size of the sums spent to promote smoking and conceal

its dangers. In particular, he noted that 450,000 deaths equate to three plane crashes

every day for a year. He also asked the jury to compare the attempts of Mr.

Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion

spent by the tobacco industry “with all their power, all their money” to encourage

people like the plaintiff to continue smoking.

Regarding the damages awards, the jury heard testimony from the wife

regarding her husband’s illness, the difficulties they endured, and the impact his

suffering and death had upon their lives and future plans. The jury heard from the

wife how she and her husband had been married for thirty years and how his death

came shortly after commencing their retirement in the Florida Keys.

The jury heard the daughter was twenty-two years old when her father died.

The father had been a stay-at-home parent who raised her. She followed her parents

to the Keys, first to live with them, and then to live near them. She saw her father

2
The deposition testimony of James Figlar, PhD, where he appeared as corporate
representative for R.J. Reynolds in another case, was read to the jury in this case.
The jury also viewed Dr. Figlar’s videotaped deposition taken in this case.

5
continually and provided care for him up to his death. At her wedding, she refused

to have anyone walk her down the aisle in her father’s absence.

In closing argument, Plaintiffs’ counsel requested an award of non-economic

damages for loss of companionship and protection and mental pain and suffering in

the amounts of $11 million to the wife and $7 million to the daughter. Plaintiffs’

counsel informed the jury that they “could go lower . . . or higher, it’s completely

within [the jury’s] province to do.” On rebuttal, Plaintiff’s counsel again requested

those amounts and argued that the figures represented, “fair compensation:” “if we

could ask for more compensatory damages, I assure you that we would have.” R.J.

Reynolds’s counsel immediately objected on the basis, stated in front of the jury,

that “there is no limit on what they can ask for.”

The jury ultimately awarded $15 million in non-economic damages to the wife

and $6 million to the daughter, but refused to award the requested punitive damages.

Regarding comparative negligence, Plaintiffs’ counsel requested the jury find R.J.

Reynolds 87.5% at fault and the decedent 12.5% at fault. The jury instead found R.J.

Reynolds 70% at fault and the decedent 30% at fault. Following the application of

comparative fault, the final judgment awarded $10.5 million to the wife and $4.2

million to the daughter.

Among other motions, R.J. Reynolds moved for a new trial on damages and

for remittitur. The motions were denied and this appeal followed.

6
 Analysis

R.J. Reynolds first argues that Plaintiffs’ counsel made improper arguments

during closing which warranted a new trial. We review the trial court’s denial of the

motion for a new trial under an abuse of discretion standard. See Engle, 945 So. 2d

at 1271 (“A trial court’s order granting or denying a motion for a new trial based on

either objected-to or unobjected-to improper argument is reviewed for abuse of

discretion.”). “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.” Id. (quotation omitted).

While we do not condone the closing argument comments to which R.J.

Reynolds objected, we conclude that the complained-of comments fall short of

denying R.J. Reynolds its right to a fair trial. In reviewing the comments, it is

important to remember their context. This case was a nearly three-week-long

bifurcated Engle progeny case involving claims for intentional and non-intentional

torts and prayers for non-economic compensatory damages flowing from Plaintiffs’

loss of companionship and protection and pain and suffering, as well as for punitive

damages.

Arguments inappropriate in a simple negligence case may be appropriate

concerning record evidence of a parties’ intentional misconduct in the context of a

7
claim for punitive damages. To give an obvious example, it is generally reversible

error in a simple tort case seeking compensatory damages to ask a jury to “send a

message” and punish or penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394

So. 2d 228, 229 (Fla. 5th DCA 1981). Here, however, the jury was instructed to

consider whether R.J. Reynolds committed intentional misconduct, meaning

“Reynolds had actual knowledge of the wrong of the conduct and the high

probability that injury would result and, despite that knowledge intentionally

pursued that course of conduct,” in which event the jury was directed to consider the

propriety of punitive damages “as a punishment to Reynolds and as a deterrent to

others.”

R.J. Reynolds complains about the way Plaintiffs’ counsel in closing noted

that the 450,000 deaths from smoking annually equated to three airline crashes per

day every day for a year. Although provocative and even somewhat inflammatory,

the comparison itself was mild considered the magnitude of the number of deaths

due to smoking (400,000 to 480,000 deaths annually) which was testified to by R.J.

Reynolds’ own corporate representative. The Surgeon General of the United States

and the Connecticut Public Health Policy Institute have made this same, or similar

comparison.3

3
See C. Everett Koop, Don’t Forget the Smokers, Washington Post, March 8, 1998,
https://www.washingtonpost.com/archive/opinions/1998/03/08/dont-forget-the-
smokers/3560fbed-880a-45ff-8669-110fd8b63509/?utm_term=.9c67a0fe6169;

8
 Among other things, this comparison was probative of whether R.J. Reynolds

had actual knowledge of its wrongdoing “and the high probability that injury would

result.” In the context of this trial, it appears that Plaintiffs’ counsel was simply

illustrating or contextualizing the number of smoking-related deaths in an attempt to

establish entitlement to punitive damages. Importantly, the jury was repeatedly

informed and instructed that they were to assess damages only for the harm caused

to the individual plaintiffs in this case. The jury ultimately did not award any punitive

damages.

Nevertheless, R.J. Reynolds contends this argument requires reversal under

cases such as Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA

1994). Blalock involved a lawsuit filed by the parents of a child who had his thumb

amputated while on the Pirates of the Caribbean ride at Walt Disney World. The jury

entered a verdict in favor of the plaintiff and Walt Disney World appealed. On

appeal, the Fifth District noted that counsel for the plaintiff in closing “express[ed]

his personal opinion that it was ‘outrageous’ for [Walt Disney World] to assert its

defense of contributory negligence-despite evidence that the minor plaintiff and his

Joseph Cooney, et al., Examining Tobacco Use, Consequences and Policies in
Connecticut: Smoke and Mirrors?, The Connecticut Public Health Policy Institute,
April 28, 2010, at 6.

9
father had been told to keep their arms inside the boat at all times and an admission

that the boy’s hand had been in the water.” Id. at 1157-58.

Moreover, in Blalock, the plaintiffs’ “[c]ounsel also expressed his personal

opinion on the credibility of several [Walt Disney World] witnesses, contrary to Rule

4-3.4(e) of the Florida Bar Rules Governing Professional Conduct.” Id. at 1158.

Beyond that, “other [Walt Disney World] witnesses were sarcastically referred to as

‘a good soldier’ or ‘this joker’ to derogate them, and [Walt Disney World] was

compared to ‘some nickel and dime carnival’ throwing ‘pixie dust’ to delude the

jurors.” Id. The court concluded that the closing argument in Blalock was “pervaded

with inflammatory comments and the personal opinion of counsel.” Id. at 1157. The

comments in Blalock were unconnected to the evidence. They were not made to

place the gravity of certain evidence in context, but rather, amounted to an

expression of personal opinion in violation of the rules governing professional

responsibility. The comments also violated well-settled black letter law by inviting

the jury to consider matters outside of the evidence based on the denigration of

witnesses. 4

4
We also note that in Blalock, the plaintiff’s expert began telling the jury of Walt
Disney World’s post-accident remedial measures, apparently unaware of the court’s
in limine order precluding same. Blalock, 640 So. 2d at 1158. The court also
considered the impact of the attorney’s conduct during closing in light of the
$275,000 future medical expenses award for which “[t]here was no evidentiary basis
. . . and had not even been sought in the closing argument.” Id. at 1159.

10
 Other cases cited by the R.J. Reynolds are equally distinguishable. For

example, in DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 1997), the criminal

defendant was accused of pointing a laser-sighted firearm at two individuals. The

Fourth District concluded there were several instances of prosecutorial misconduct

warranting reversal. The misconduct included: (1) “the prosecuting attorney . . .

suggesting or inferring on cross-examination . . . that Appellant was a person with a

temper which perhaps was so bad that it led him to hitting his own sister in the head

with a baseball bat,” even though any such evidence was inadmissible; (2) the

prosecutor made a golden rule argument during closing, by asking the jurors to

consider how terrifying it would have been for any given juror to have had the gun

at issue pointed at his or her chest by the defendant; and (3) the prosecutor

impermissibly made a comparison in closing between the defendant’s case and the

O.J. Simpson case. Id. at 601. The O.J. Simpson “reference, coupled with the

reference to [the defendant] as a stalker, possessive ex-boyfriend who disapproved

of his ex-girlfriend’s friends, simply crossed the line of proper vigorous and diligent

advocacy and violated the rule against inflammatory argument.” Id.

Notably, the court specifically stated that “the prosecutor’s reference to the

O.J. Simpson [case], standing alone, may not have been sufficient to reach the very

heart of [the defendant’s] criminal trial and may not have risen to the level of

fundamental error; however its contribution to the cumulative effect of the totality

11
of the misconduct reached far beyond that which the right to a fair criminal trial

allows.” Id. Defreitas is therefore distinguishable because it involves a cumulative

impact and level of attorney misconduct which is not present in the case before us.

R.J. Reynolds also contends reversal is warranted because the Plaintiffs’

counsel compared the efforts of the plaintiff to quit smoking with “all their power,

all their money” (referring to R.J. Reynolds and other tobacco companies) spent to

encourage individuals like Mr. Schleider to keep smoking. After the parties went to

sidebar and the Plaintiffs’ counsel explained the comment, the court allowed him to

rephrase before the jury. The Plaintiffs’ counsel then proceeded to remind the jury

of the testimony regarding the amount of $250 billion dollars spent between 1940

and 2005 on cigarette advertising and promotion. Counsel further clarified the

“power” comment by reminding the jury of the evidence presented regarding the

lobbying efforts of the tobacco companies to influence Congress. R.J. Reynolds did

not object to the explanation made by the Plaintiffs’ counsel.

When these comments are placed in the unique context of the evidence

presented at this trial, the comments related to “wealth” and “power” do not merit

reversal. In this regard, Samuels v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010),

relied upon by R.J. Reynolds, is not comparable. Samuels was injured in an

automobile accident caused by Torres and filed suit against him. The first trial

resulted in a mistrial due to improper comments of Torres’ defense counsel

12
suggesting that Torres could not afford to pay a substantial award. During opening

statements in the second trial, the defense attorney gave “a little bit of background

on Mr. Torres” which amounted to telling the jury of Mr. Torres’ work as a truck

driver and the meager nature of his earnings. Id. at 1195-96.

The Fifth District noted that “[w]hen counsel for Torres revealed the meager

income of his client, a juror began to cry and told the trial judge that the stories she

heard were ‘sad.’” Id. at 1196-97. Furthermore, despite the fact that “Samuels

presented significant evidence regarding her injuries,” and evidence regarding a

$60,000-$80,000 future spinal surgery, the jury only awarded the future medical

expenses in “the sum of $1,000 per year of her projected thirty-four years of

remaining life, an award completely devoid of evidentiary support” which the trial

court believed “is explainable only as a result of the prejudicial statement made about

the irrelevant issue of Torres’ meager income.” Id. at 1197. This is not what occurred

in the case before us.

Finally, R.J. Reynolds contends that plaintiffs’ counsel improperly denigrated

the defense. After carefully reviewing the transcript, we reject this argument.

Plaintiff’s attorney in closing was in the middle of saying “so in fact they still, still,

to this day, trying to pretend like they . . . ” when his statement was interrupted by

an objection and he was ordered to move on, which he did. While some of Plaintiffs’

counsel’s comments approached the boundary of what constitutes proper argument,

13
they did not rise to the requisite level to warrant a new trial. The evidence at trial, as

well as the jury instructions, demonstrated that R.J. Reynolds affirmatively

attempted to conceal from the public information regarding the health dangers of

cigarettes. Furthermore, testimony demonstrated that at one point, when public

service announcements were shown along with cigarette ads, tobacco companies

attacked the public service announcements, calling them false and misleading.

Evidence at trial also showed that executives within the tobacco industry actively

disputed – if not misrepresented – the harmful effects of cigarettes despite available

scientific proof at the time.

“Attorneys should be afforded great latitude in presenting closing argument,

but they must ‘confine their argument to the facts and evidence presented to the jury

and all logical deductions from the facts and evidence.’” Murphy v. Int’l Robotic

Systems, Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Knoizen v. Bruegger, 713

So. 2d 1071, 1072 (Fla. 5th DCA 1998)). Plaintiffs’ counsel’s comments during his

closing argument in this case may be considered to be close to the limits of what is

acceptable. Indeed, they may well justify reversal in a different context. In the

context of the evidence of this particular trial, however, we find that the comments

did not rise to a level that requires reversal.

This conclusion is particularly compelling here because the trial spanned

nearly three weeks and closing argument ended on a Friday. The jury returned the

14
following Monday, engaged in two days of deliberation, and found in favor of R.J.

Reynolds on the question of punitive damages and concealment; awarded less than

the compensatory amount requested for the daughter; and attributed a higher

percentage of comparative negligence to Schleider than what Plaintiffs’ counsel

argued for in closing. These actions by the jury strongly indicate the jury was not

inflamed, prejudiced, or improperly mislead by closing arguments.

This brings us to R.J. Reynolds’ main argument on appeal. R.J. Reynolds’

main argument on appeal concerns the trial court’s denial of its motions for remittitur

and a new trial on damages. It contends the amounts awarded by the jury of $15

million to the wife and of $6 million to the daughter are excessive. The award of

money damages for pain and suffering reflects an attempt to establish an objective

economic equivalent for the subjective pain a person suffered. It has been described

as “an attempt to ‘measure that which is immeasurable.’” Ortega v. Belony, 185 So.

3d 538, 540 (Fla. 3d DCA 2015) (quoting Food Fair Stores, Inc. v. Morgan, 338 So.

2d 89, 92 (Fla. 2d DCA 1976)).

Because of the inherent difficulty in measuring non-economic damages such

as pain and suffering, the Florida Supreme Court has determined that “[t]he jury,

guided by its judgment and everyday life experiences, is in the best position to make

a fair assessment of these damages.” Odom v. R.J. Reynolds Tobacco Co., No.

15
SC17-563, 2018 WL 4496563, at *6 (Fla. Sept. 20, 2018) (quoting Angrand v. Key,

657 So.2d 1146, 1149 (Fla. 1995)). As the Supreme Court has further explained:

Jurors know the nature of pain, embarrassment and inconvenience, and
they also know the nature of money. Their problem of equating the two
to afford reasonable and just compensation calls for a high order of
human judgment, and the law has provided no better yardstick for their
guidance than their enlightened conscience. Their problem is not one
of mathematical calculation but involves an exercise of their sound
judgment of what is fair and right.

Id. (quoting Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla.

1955)).

For this reason, a jury’s award of damages should not be disturbed unless “it

is so inordinately large as obviously to exceed the maximum limit of a reasonable

range within which the jury may properly operate.” R.J. Reynolds Tobacco Co. v.

Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012) (quoting Bould v. Touchette,

349 So. 2d 1181, 1184–85 (Fla. 1977)). Moreover, having heard the same evidence

as the jury, “[t]he trial court is in the best position to determine whether the

compensatory damages award is excessive.” Lorillard Tobacco Co. v. Alexander,

123 So. 3d 67, 79 (Fla. 3d DCA 2013). For this reason, “[w]e review the trial court’s

denial of . . . post-trial motions for remittitur and new trial under the abuse of

discretion standard.” Maggolc, Inc. v. Roberson, 116 So. 3d 556, 558 (Fla. 3d DCA

2013).

16
The remittitur statute reads in pertinent part as follows:

(1) In any action to which this part applies wherein the trier of fact
determines that liability exists on the part of the defendant and a verdict
is rendered which awards money damages to the plaintiff, it shall be the
responsibility of the court, upon proper motion, to review the amount
of such award to determine if such amount is excessive or inadequate
in light of the facts and circumstances which were presented to the trier
of fact.

....

(3) It is the intention of the Legislature that awards of damages be
subject to close scrutiny by the courts and that all such awards be
adequate and not excessive.

....

(5) In determining whether an award is excessive or inadequate in
light of the facts and circumstances presented to the trier of fact and in
determining the amount, if any, that such award exceeds a reasonable
range of damages or is inadequate, the court shall consider the
following criteria:

(a) Whether the amount awarded is indicative of
prejudice, passion, or corruption on the part of the trier of
fact;

(b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits
of the case relating to the amounts of damages
recoverable;

(c) Whether the trier of fact took improper elements of
damages into account or arrived at the amount of damages
by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable
relation to the amount of damages proved and the injury
suffered; and

17
 (e) Whether the amount awarded is supported by the
evidence and is such that it could be adduced in a logical
manner by reasonable persons.

(6) It is the intent of the Legislature to vest the trial courts of this state
with the discretionary authority to review the amounts of damages
awarded by a trier of fact in light of a standard of excessiveness or
inadequacy. The Legislature recognizes that the reasonable actions of a
jury are a fundamental precept of American jurisprudence and that such
actions should be disturbed or modified with caution and discretion.
However, it is further recognized that a review by the courts in
accordance with the standards set forth in this section provides an
additional element of soundness and logic to our judicial system and is
in the best interests of the citizens of this state.

§ 768.74, Fla. Stat. (2014) (emphasis added).

None of the factors set forth in the remittitur statute to justify a reduction are

present here. The jury did not find in favor of the Plaintiffs on all counts. The jury

apportioned a greater percentage of fault to the decedent than requested by Plaintiffs.

The jury awarded the daughter less than she sought. Lastly, the jury elected not to

award punitive damages. Indeed, the jury awarded the wife $15 million when she

only requested $11 million, but both counsel for Plaintiff and counsel for R.J.

Reynolds told the jury there was no limit on what the plaintiff could request and

counsel for R.J. Reynolds suggested no actual number to the jury. On balance, we

find nothing to suggest impropriety, partiality, or a runaway jury.

“Under Florida law an award of non-economic damages must bear a

reasonable relation to the philosophy and general trend of prior decisions in such

18
cases.” Philip Morris USA Inc. v. Cohen, 102 So. 3d 11, 18 (Fla. 4th DCA 2012),

quashed on other grounds in R.J. Reynolds Tobacco Co. v. Cohen, No. SC13-35,

2016 WL 375143 *1 (Fla. Jan. 26, 2016) (quoting Bravo v. United States, 532 F.3d

1154, 1162 (11th Cir. 2008)). Here, the awards do precisely that.

The award of $15 million is indeed higher than awards in the $10 to $12.5

million range previously upheld by this and other courts. See, e.g., Philip Morris

USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA 2015) (upholding $12.5

million verdict)5; Alexander, 123 So. 3d at 76-79 (upholding trial court’s reduction

of $20 million verdict to $10 million); Philip Morris USA, Inc. v. Kayton, 104 So.

3d 1145, 1147 (Fla. 4th DCA 2012) (upholding $8 million compensatory damages

award but reversing $16 million punitive award for determination of statute of repose

issue), quashed on other grounds in Kayton v. Philip Morris USA, Inc., Nos. SC13-

171, SC13-243 (Fla. Feb. 1, 2016) (summarily quashing decision and reinstating jury

verdict); Cohen, 102 So. 3d at 19 (upholding $10 million compensatory damages,

but reversing $10 million punitive damages for determination of statute of repose

issue); Townsend, 90 So. 3d at 307 (upholding a $10.8 million compensatory

damages award and $80 million in punitive damages).6

5
The Cuculino jury apportioned 60% of the fault to Mr. Cuculino, reducing the
actual award to $5 million. Cuculino, 165 So. 3d at 39.
6
The Townsend jury found R.J. Reynolds to be 51% responsible for the death of
Mr. Townsend, reducing the jury award in accordance with the allocation of

19
 However, these awards from other cases do not establish a cap on non-

economic damages for surviving spouses in the amount of $10 million for all time

and for all circumstances. As the Supreme Court recently noted, “neither the

Legislature nor this Court has limited or established a bright-line cap on the amount

a survivor may be awarded in noneconomic damages under the wrongful death

statute.” Odom, 2018 WL 4496563, at *9.

Moreover, the award here is only a fraction higher—not multiple times

higher—than those previously upheld. Cf. Rety v. Green, 546 So. 2d 410, 420 (Fla.

3d DCA 1989) (reversing denial of remittitur of award “nearly twenty times higher

than any libel verdict which has ever been upheld on appeal in Florida or

elsewhere”). This award therefore cannot be said to be “so inordinately large as

obviously to exceed the maximum limit of a reasonable range within which the jury

may properly operate.” Bould, 349 So. 2d at 1184–85.

Considering the unique facts of this case and weighing the evidence, the jury

made its determination that a $15 million award to the wife was warranted. The jury

heard significant evidence in support of the wife’s loss of consortium and pain and

suffering claims. The jury heard evidence that Schleider was fifty-six and his wife

percentage of fault. The trial court entered a judgment against R.J. Reynolds in the
amount of over $46 million, consisting of approximately $5.5 million in
compensatory damages and $40.8 million in punitive damages.

20
was fifty-five at the time of his death; they had been married for thirty years, and

had four children. Schleider had become disabled and, as a result, was a stay-at-

home parent and the primary caregiver for their family. The wife had just retired and

the couple moved to the Florida Keys when Schleider was first diagnosed. He passed

away within roughly two years. During that time, the wife watched as Schleider

withered away and suffered.

By the end, he had lost all of his hair, he could not use the commode by himself

(which was kept next to his bed because he could not walk to the bathroom), and

was being daily administered morphine for his pain. After testifying about the

suffering she witnessed, she said, “I do not want to ever see anybody else suffer like

that.” Even twenty years later, the wife has never remarried. The Plaintiffs also

published certain life expectancy tables to the jury to establish the duration of loss.

The trial court, having heard the same testimony the jury relied upon, upheld the

jury’s award. Given the evidence presented, fifteen million dollars for the loss of a

spouse as the wife embarked on her retirement and the couple moved to the Florida

Keys may be more than what we would have awarded as jurors, but it is not so

inordinately large as to justify reversal of the jury award and the trial court in this

case.

Similarly, the jury determined that a $6 million award to the daughter – $1

million less than what Plaintiff requested – was appropriate. R.J. Reynolds primarily

21
relies on a number of cases involving damages awards to adult children to establish

that the award in this case is an outlier, and therefore, excessive. However, a

comparison of this award to cases involving adult children is inappropriate because

the daughter was not an adult child under the statute. Florida’s Wrongful Death Act

expressly permits recovery of damages by either a decedent’s surviving spouse,

surviving minor child, or both. § 768.21(1)-(3), Fla. Stat. (permitting recovery for

loss of parental companionship and pain and suffering for a surviving adult child

only where there is no surviving spouse). In doing so, the statute defines a minor as

a child “under 25 years of age, notwithstanding the age of majority.” § 768.18(2),

Fla. Stat. Here, the Schleider’s daughter was twenty-two years old, and thus a

statutory minor, when her father died.

The jury heard the daughter’s testimony regarding her father’s presence in her

life and the closeness of their relationship. She testified that he was the primary

caregiver, “Mr. Mom,” and the primary source of support and guidance in her life.

She moved from New York to the Florida Keys to be closer to her parents and, once

her father got sick, she helped take care of him. The jury also heard that no one

walked her down the aisle at her wedding. The jury heard that she is unable to speak

about his death even 20 years later because “the way he died” causes her to cry. She

explained that she began experiencing and still has panic attacks to this day as a

result of his death.

22
 We simply cannot draw a bright line establishing a particular age involving a

surviving minor under Florida’s Wrongful Death Act that would warrant a lesser or

greater award. Children will have different relationships with parents. Some parents

will be close, as was the case here; some not. An inquiry into this matter is factually

intensive and turns largely on the nature and credibility of the evidence presented,

not merely the age of the surviving child.

There are few published opinions for comparison. However, the award in this

case falls squarely within the realm of those awards. At the outset, we acknowledge

the cases where appellate courts have reversed jury awards of $6 million to adult

children as excessive. See Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 470-

71 (Fla. 4th DCA 2016) (concluding that $5 million award to each of three surviving

adult children of the deceased smoker was excessive and there was no evidence “of

the type of close or supportive relationship that would justify such an award”)7; R.J.

Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 337 (Fla. 1st DCA 2012) (reversing

an $8 million award to an adult surviving child of a cigarette smoker who was fifty-

four years old when her father passed away on the basis that it was excessive as

compared to other similar Engle awards).

7
The initial brief in Putney indicated that the adult children were each in their thirties
and living independently. Initial Brief for Appellant Philip Morris USA Inc. and
R.J. Reynolds Tobacco Company at 20, Philip Morris USA Inc. v. Putney, 199 So.
3d 465 (Fla. 4th DCA 2016) (Nos. 4D10-3606 & 4D10-5244 Consol.).

23
 But we do not read these cases as establishing a cap for minor children for all

time and all circumstances. Indeed, a court has upheld awards of $7.5 and $4 million

to surviving minor children under similar circumstances. R.J. Reynolds Tobacco Co.

v. Grossman, 211 So. 3d 221, 229 (Fla. 4th DCA 2017), review denied, No. SC17-

706, 2017 WL 3751318, review granted on other grounds, No. 17-688, 2018 WL

3097036, remanded on other grounds to 4D13-3949, 2018 WL 3375363 (Fla. 4th

DCA July 11, 2018). A court has also upheld an award of $4.4 million to a surviving

minor whose mother was killed instantly in a car accident. See Citrus County v.

McQuillin, 840 So. 2d 343, 347-48 (Fla. 5th DCA 2003). Moreover, as noted above,

the Supreme Court recently held that “neither the Legislature nor this Court has

limited or established a bright-line cap on the amount a survivor may be awarded in

noneconomic damages under the wrongful death statute.” Odom, 2018 WL

4496563, at *9.

Given the extremely fact-specific nature of the individual relationships that

are a basis for a compensation award to a minor statutory survivor, it is only natural

that jury verdicts will vary. The problems of determining the nature of these

relationships and a commensurate award goes to the heart of why we use juries to

set the amount. While we entertain notions that an award may “raise judicial

eyebrows” or “shock the judicial conscience,” we have yet to establish an objective

measure to evaluate when a jury’s award for pain and suffering is too large or too

24
small. In deciding whether to grant remittitur, the trial court has wide discretion

precisely because it has a better vantage to determine whether an award is excessive.

In contrast, as appellate courts, having only the cold transcripts before us, we lack

the vantage of the trial courts in these matters.

The dissent somewhat summarily concludes that there is nothing “unique”

about the daughter’s suffering. We are reminded of Tolstoy’s observation that “all

happy families are alike; each unhappy family is unhappy in its own way.”

Reflecting this wisdom, our system of laws leave the nature and extent of the

daughter’s suffering to the province of the jury, and then to the trial judge who

actually saw and heard the testimony. Particularly, as appellate judges with only the

cold record before us, we “must resist the urge to ‘declare a verdict excessive merely

because it is above the amount which the court itself considers the jury should have

allowed.’” Odom, 2018 WL 4496563 at 9 (quoting Bould, 349 So. 2d at 1184).

Here, we find no abuse of discretion by the trial court in denying remittitur

or a new trial on the awards to the wife and daughter.

Affirmed.

EMAS, J., concurs.

25
 R.J. Reynolds Tobacco Company v. Diane Schleider, etc.,
Case No. 3D15-1634

ROTHENBERG, C.J. (dissenting).

The majority opinion makes a valiant attempt to minimize the impact of the

improper arguments made by plaintiffs’ counsel and to distinguish the cases that

have been reversed for similar improper arguments. However, as will be carefully

addressed in this dissent, the cumulative effect of the improper arguments in this

case, which is not unique in terms of the evidence against R.J. Reynolds, but is

unique in the scarcity of evidence in the record to support the exorbitant loss of

consortium awards to Mr. Schleider’s wife and non-dependent child, requires a new

trial.

A new trial is required because the Plaintiffs’ counsel made numerous

improper and inflammatory closing arguments. These improper arguments, which

were repeatedly objected to by R.J. Reynolds, but which were inexplicably overruled

or ignored by the trial court, contributed to the very high jury awards and denied R.J.

Reynolds of its right to a fair trial. As this dissent will document, the Plaintiffs’

closing arguments were highly improper, the trial court erred by overruling R.J.

Reynolds’ objections and by denying R.J. Reynolds’ repeated requests to explain its

objections to the trial court at side bar, and the Plaintiffs have failed to demonstrate

26
that these errors are harmless. In fact, the extremely high jury awards demonstrate

the opposite. For these reasons, I respectfully dissent. R.J. Reynolds is entitled to a

new and fair trial.

The Plaintiffs’ improper arguments fall within the following three categories

which will be addressed in turn: (1) inflammatory arguments designed to invoke the

jury’s emotions (sympathy and anger); (2) attacks upon R.J. Reynolds and its

counsel for their defense of the case; and (3) comparing R.J. Reynolds’ “wealth” and

“power” to that of Mr. Schleider, who was alternatively referred to as “just a child”

when he began to smoke and “a gentleman who was addicted to nicotine” as an adult.

I. Plaintiffs’ Counsel’s Improper Arguments

A. The Plaintiffs’ inflammatory arguments

One of the Plaintiffs’ themes in its closing arguments was that the jury should

punish R.J. Reynolds for the millions of people (8.5 million, according to the

Plaintiffs’ counsel) who are currently living with smoking-related illnesses and for

the 450,000 Americans who die each year from smoking-related illnesses.

[Plaintiffs’ Counsel]: . . . [T]hese corporations, they can’t do this and
get away with it. They can’t do this for 50 years, 450,000 Americans
die every year, okay? And that’s a lot of people.
. . . .
[Plaintiffs’ Counsel]: So when we talk about 450,000 who die every
year, it doesn’t seem - - you know, it’s a number that maybe you grow
numb to, but if you wrap your mind around that number and you think
about it, what that means is if there is a plane crash tomorrow and - -

R.J. Reynolds immediately objected and requested to make a motion but the

27
trial court overruled the objection and did not hear R.J. Reynolds’ motion.

Emboldened by the trial court’s ruling, the Plaintiffs’ counsel charged forward,

building on his plane crash theme and inflaming the jury with not only the number

of smoking-related deaths, but by invoking images of plane crashes and the

mourning public.

[Plaintiffs’ Counsel]: So if a plane crashed, it would be big news,
right? People would be watching it on CNN and we would watch it
and we would feel bad for those families and we would mourn with
the families and everybody would feel bad, and it would be
horrible. 450,000 is the equivalent –

[Defense Counsel]: Your Honor, I’m sorry to interrupt. Can I just get
a continuing objection?

[The Court]: Yes.

[Defense Counsel]: I need to make a motion, I have a number of
objections to this.

[The Court]: That’s fine. Thank you.

[Plaintiffs’ Counsel]: The number would be the equivalent in terms of
number, just so you could wrap your mind around the harm being
done, of three plane crashes every day for a year. That would be
about 450,000 Americans. And that’s why I say when you consider
what they’ve done, the harm of what they done. . . . And that’s the
evidence in this case about how many people have died, and he was just
one of them.

(Emphasis added).

These arguments made by the Plaintiffs’ trial counsel were not only improper

because they were inflammatory, but were also improper because they inferred that

28
the jury could and should punish R.J. Reynolds for the harm suffered by all smokers

caused by the entire tobacco industry. However, both compensatory and punitive

damages in these individual smoker cases must be confined to the damages suffered

solely by the plaintiff in each case being tried—not all plaintiffs, all potential

plaintiffs, and certainly not all Americans with smoking-related illnesses.

Otherwise, juries might, and it appears did in this case, award damages based on the

hundreds of thousands of Americans who may have died and who may die in the

future from a smoking-related illness and the millions of Americans living with

smoking-related illnesses, all of whom were non-parties in the instant litigation.

The Plaintiffs’ counsel contends that there was nothing improper about his

arguments highlighting the number of smoking-related deaths (allegedly 450,000

each year) and the number of persons living with smoking-related illnesses

(allegedly 8.5 million). He also contends there was nothing improper with asking

the jury to picture watching CNN reporting on a plane crash and asking the jury to

envision how bad “we would feel for those families and we would mourn with the

families and everyone would feel bad, and it would be horrible,” and then telling the

jury to envision that horrible loss extending to 450,000 Americans and to multiply

that horror to the horror of three plane crashes every day for a year. The Plaintiffs’

counsel contends that his “vivid or descriptive analogy” was utilized to help the jury

“grasp the sheer magnitude of the harm caused by RJR’s misconduct.” But that is

29
exactly why these arguments were improper.

The majority also concludes that because the Plaintiffs were seeking punitive

damages in this case, these highly inflammatory arguments were permissible.

However, as will be discussed below, that conclusion is in direct conflict with

established Florida Supreme Court precedent and constitutional due process. The

record also reflects that the Plaintiffs’ counsel used the number of smoking-related

illnesses and deaths in its plea for the jury to punish RJ Reynolds for an improper

purpose. The number of smoking-related deaths or smoking-related illnesses was

improperly used by the Plaintiffs to inflame the jury and to seek an award that

punished R.J. Reynolds for the alleged injury and death to non-parties in this case.

The case law is clear on the impropriety of such arguments, as the jury should only

have been permitted to consider the damages suffered by the plaintiffs in this case—

Mr. Schleider’s wife and Mr. Schleider’s non-dependent daughter, and to punish

R.J. Reynolds for its actions as it relates to the plaintiffs in this case. The Plaintiffs’

counsel’s impassioned arguments, however, improperly urged the jury to consider

the death or injury to millions of non-parties when determining the amount of

damages to award in this case, which did not include these non-parties. This violated

R.J. Reynolds’ constitutional right to due process.

In Philip Morris USA v. Williams, 549 U.S. 346, 349 (2007), when answering

“whether the Constitution’s Due Process Clause permits a jury to base that award in

30
part upon its desire to punish the defendant for harming persons who are not before

the court (e.g., victims whom the parties do not represent),” the United States

Supreme Court held that “such an award would amount to a taking of ‘property’

from the defendant without due process.” (emphasis in original). Specifically, the

United States Supreme Court in Williams made clear that although punitive

damages may be imposed to punish unlawful conduct and to deter its repetition,

id. at 349, “the Constitution’s Due Process Clause forbids a State to use a

punitive damages award to punish a defendant for injury that it inflicts upon

nonparties or those whom they directly represent, i.e., injury that it inflicts

upon those who are, essentially, strangers to the litigation.” Id. at 353 (emphasis

added); see also State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 420 (2003)

(noting that “[T]he Campbells demonstrated, through the testimony of State Farm

employees who had worked outside of Utah, and through expert testimony, that this

pattern of claims adjustment under the PP & R program was not a local anomaly,

but was a consistent, nationwide feature of State Farm’s business operations,

orchestrated from the highest levels of corporate management,” and condemning the

Campbells’ use of their case as a platform to expose and punish for alleged

deficiencies of State Farm’s operations throughout the country, rather than for its

conduct against the Campbells); Branham v. Ford Motor Co., 701 S.E.2d 5, 23-24

(S.C. 2010) (finding the most egregious error was “counsel’s request that the jury

31
punish Ford for harming others beyond [the plaintiff] . . . [b]y focusing on conduct,

as opposed to harm to Branham, the charge invited the jury to punish Ford for all

Bronco rollover deaths and injuries”); Durham v. Vinson, 602 S.E.2d 760, 767 (S.C.

2004) (reversing an award of punitive damages because the trial court allowed the

jury to punish the defendant for bad acts unrelated to the defendant’s actions toward

the plaintiff).

The arguments made by Plaintiffs’ counsel encouraging the jury to punish R.J.

Reynolds for the millions of people who are allegedly living with smoking-related

illnesses and for allegedly killing 450,000 Americans each year rather than

punishing R.J. Reynolds for its injury to Mr. Schleider and his surviving wife and

daughter was, therefore, improper, and the highly inflammatory mental images

Plaintiffs’ counsel beseeched the jury to envision—three airplanes filled with

passengers crashing each day for a year and the pain and suffering of the families

and the public at large resulting from viewing the carnage on television—therefore

violated both R.J. Reynolds’ constitutional right to due process and its right to a fair

trial. As the United States Supreme Court in Campbell recognized, to punish a

defendant (in a non-class action lawsuit) for the alleged injury to nonparties “creates

the possibility of multiple punitive damages awards for the same conduct; for in the

usual case nonparties are not bound by the judgment some other plaintiff obtains.”

Campbell, 538 U.S. at 423.

32
 These highly improper inflammatory arguments were clearly, timely, and

repeatedly objected to by R.J. Reynolds’ counsel. However, the trial court, which

appeared focused on getting the case to the jury, as opposed to monitoring the

arguments of counsel and protecting the fairness of the proceedings, either overruled

R.J. Reynolds’ objections or, in some instances, completely ignored them and simply

thanked R.J. Reynolds’ counsel for his objection. We, therefore, review these

improper arguments under a harmless error standard of review. See Cardona v.

State, 185 So. 3d 514, 520 (Fla. 2016) (providing that “[w]here the comments were

improper and the defense objected, but the trial court erroneously overruled defense

counsel’s objection, [the appellate court] appl[ies] the harmless error standard of

review”); accord Diaz v. State, 139 So. 3d 431, 434 (Fla. 3d DCA 2014).

Under the harmless error analysis, the beneficiary of the error, which in this

case are the Plaintiffs, must prove that there is no reasonable possibility that the error

contributed to the verdict, and if the beneficiary fails to satisfy that burden, then the

error is harmful and a new trial is required. See Special v. W. Boca Med. Ctr., 160

So. 3d 1251, 1256 (Fla. 2014). The Plaintiffs have clearly failed to establish that the

cumulative effect of this objected-to highly inflammatory argument and the other

improper objected-to closing arguments was harmless in this case.

The Florida Supreme Court and this Court have repeatedly cautioned lawyers

and judges alike that closing arguments “must not be used to ‘inflame the minds and

33
passions of the jurors so that their verdict reflects an emotional response . . . rather

than the logical analysis of the evidence in light of the applicable law.” Murphy v.

Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Bertolotti v.

State, 476 So. 2D 130, 134 (Fla. 1985)); see also Garron v. State, 528 So. 2d 353,

359 (Fla. 1988) (noting that comments in closing arguments that inject elements of

emotion and fear into the jury’s deliberations go “far outside the scope of proper

argument”); Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (warning

that inflammatory and prejudicial comment “will not be condoned”).

The courts in this state have reversed jury verdicts based on inflammatory

closing arguments after performing a harmless error analysis, and they have even

reversed jury verdicts after performing a fundamental error analysis, requiring a

much higher burden. For example, in Walt Disney World Co. v. Blalock, 640 So.

2d 1156, 1158 (Fla. 5th DCA 1994), the Fifth District Court of Appeal concluded

that the plaintiff’s counsel’s inflammatory comments and personal opinions during

closing arguments, even though not objected to, constituted fundamental error

and deprived Walt Disney World of its right to a fair trial. In that case, a ten year

old boy was injured when he was riding as a passenger in a boat at the park and the

boat bumped into the side of another passenger boat, and the boy’s hand was

allegedly caught between the two boats and resulted in the amputation of his thumb.

The improper argument made by counsel for the plaintiff is as follows:

34
 [Y]ou know, why don’t you consider the fact that maybe instead of
Luke, a ten year old, that we have a three or four year old sitting in this
seat and they had their little ears on, okay, that they bought at the Magic
Kingdom and the ears fell off into the water and so they go to pick them
up. . . . The boat, it takes their arm off or if they’re leaning over it
smashes them in the head? . . . I mean, you know, but for the grace of
God, you know, we’d have some other catastrophic circumstance . . . .

Blalock, 640 So. 2d at 1158.

In the instant case, R.J. Reynolds timely objected to the improper

inflammatory arguments. Thus, unlike the defendant in Blalock, which was required

to and did in fact demonstrate fundamental error, the burden is on the Plaintiffs in

this case to demonstrate that the error was harmless error. As will be discussed at

length under section II of this dissent, the Plaintiffs have failed to meet their burden

in this case due to the cumulative effect of multiple improper closing arguments and

the extremely high loss of consortium verdicts. The Plaintiffs’ counsel asked the

jury to award Mr. Schleider’s wife $11 million for her loss of consortium claim

against R.J. Reynolds, but the jury awarded her $15 million despite the very limited

evidence provided by the wife regarding her loss, and the jury awarded Mr.

Schleider’s non-dependent daughter an additional $6 million, an amount which our

sister courts have found to be excessive for a child who is not dependent on the

deceased parent for support or companionship.

The majority suggests that the reversal ordered in Blalock can be

distinguished from the improper arguments made by the Plaintiffs’ counsel in the

35
instant case. I respectfully disagree. In both cases, the closing arguments were

improper, inflammatory, and pervasive. My dissent relies on the reversal in Blalock

because a new trial was ordered despite the vastly different and the more difficult

burden that had to be met to obtain a reversal based on the improper closing

arguments. In Blalock, defense counsel failed to object to the improper arguments

made by the plaintiff’s counsel. Thus, instead of the plaintiff having the burden (as

it has in the instant case) to prove that the improper arguments did not contribute to

the verdict, the burden was on the defendant in Blalock, and the defendant was

required to demonstrate fundamental error. In other words, the burden shifted from

the plaintiff to the defendant in Blalock and the burden was a much higher burden.

In the instant case, R.J. Reynolds did object but the trial court overruled the

objections. Thus, the burden is on the Plaintiffs, not R.J. Reynolds, and the Plaintiffs

must prove that the error did not contribute to the verdict. Also, and importantly,

the verdicts in Blalock did not even approach the level of the awards in the instant

case. The jury in Blalock awarded a total of $881,895 in damages, and $279,200 of

that award was for future medical expenses. Here, the jury awarded Mr. Schleider’s

wife $15 million and his non-dependent daughter $6 million based solely on their

loss of consortium claims.

In State v. Jones, 558 S.E.2d 97, 99 (N.C. 2002), the Supreme Court of North

Carolina reversed a death sentence and remanded for a new sentencing hearing based

36
on the State’s improper closing arguments before a jury during the sentencing phase

of the trial. Over defense objection, the State improperly referred to the Oklahoma

City federal building bombing and the Columbine school shootings in what the court

concluded could not “be construed as anything but a thinly veiled attempt to appeal

to the jury’s emotions.” Id. at 107. The court found that the argument was improper

because: “(1) it referred to events and circumstances outside the record; (2) by

implication, it urged jurors to compare defendant’s acts with the infamous acts of

others; and (3) it attempted to lead jurors away from the evidence by appealing

instead to their sense of passion and prejudice.” Id. at 107.

Similarly, in the instant case, the Plaintiffs’ counsel’s closing argument

improperly referred to events and circumstances outside the record that were totally

irrelevant to the amount of damages suffered by the Plaintiffs in this case: the alleged

450,000 smoking-related deaths, the alleged 8.5 million smoking-related illnesses,

and the families’ grief and mourning in those cases as a result of those deaths and

illnesses. Rather than focusing on the evidence, these improper closing arguments

appealed to the jury’s sense of passion and prejudice, and instead of urging the jurors

to compare R.J. Reynolds’ acts with the acts of others as in Jones, the Plaintiffs’

counsel attempted to impute the damages allegedly suffered by millions of people to

the damages awardable in this individual case.

In evaluating whether the plaintiff’s improper closing argument required a

37
new trial, the Jones court concluded that “[t]he impact of the statements in

question, which conjure up images of disaster and tragedy of epic proportion,

is too grave to be easily removed from the jury’s consciousness, even if the trial

court had attempted to do so with instructions,” id. at 107 (emphasis added), and

therefore, reversed for a new sentencing proceeding.

In Samuels v. Torres, 29 So. 3d 1193, 1197 (Fla. 5th DCA 2010), the Fifth

District also reversed for a new trial based on the plaintiff’s counsel’s improper

arguments and based on a much higher burden of proof than the one in the instant

case. Because defense counsel failed to object to the improper arguments, the burden

shifted, as it did in Blalock, to the defendant to establish fundamental error. The

Fifth District concluded that fundamental error was established and ordered a new

trial stating that “counsel for Torres [had] employed a defense stratagem in his

opening statement to curry sympathy from the jury and it is obvious from this record

that he succeeded,” and “[a]s a result, Samuels was deprived of a fair trial.”

Similarly, in DeFreitas v. State, 701 So. 2d 593, 601 (Fla. 4th DCA 1997), the Fourth

District found that the prosecutor violated the rule against inflammatory argument

by comparing the misconduct of the defendant to the O.J. Simpson case, and held

that this improper argument, along with other improper arguments, constituted

fundamental error requiring a new trial.

In each of these cases, Blalock, Samuels, and DeFreitas, the appellate courts

38
concluded that the cumulative effect of the improper arguments required a new trial,

and in each of these cases the burden was a much higher burden than in the instant

case because in those cases, no objection was made, and thus the defendant was

required to establish, and did establish, that the error rose to the level of fundamental

error. In the instant case, the Plaintiffs, not the defendant, have the burden and their

burden is to establish that the cumulative effect of the improper arguments was

harmless. The Plaintiffs have not met that burden here based on the extremely high

loss of consortium damages the jury awarded to Mr. Schleider’s wife and non-

dependent daughter, which reflects that Plaintiffs’ counsel’s stratagem—to curry

sympathy from the jury—succeeded. Torres, 29 So. 3d at 1197.

Asking the jurors in the instant case to conjure up the image of three plane

crashes a day for a year, the yearly deaths of 450,000 Americans, an additional 8.5

million Americans who are suffering with smoking-related illnesses, and the

mourning of millions of American families, far surpasses the “tragedy of epic

proportion” improperly argued in Jones. And because the trial court overruled R.J.

Reynolds’ objections, the trial court telegraphed to the jurors that it was entirely

proper for them to consider these images and the total number of affected people

when determining the damages they could and should award in this case. I would,

therefore, reverse on this ground alone.

B. Attacks upon R.J. Reynolds and its counsel for their defense of the case

39
 “The law is clear that it is improper for an attorney to disparage an opposing

party’s defense of a case or to suggest that a party should be punished for contesting

a claim.” Fasani v. Kowalski, 43 So. 3d 805, 809 (Fla. 3d DCA 2010). In fact,

“[t]he most grievous arguments” a plaintiff’s lawyer can make are those suggesting

that the defendant “acted improperly by defending [against the plaintiff’s] claims.”

Carnival Corp. v. Pajares, 972 So. 2d 973, 977 (Fla. 3d DCA 2007).

In the instant case, the Plaintiffs’ counsel attacked R.J. Reynolds for pursuing

a comparative fault defense by claiming that R.J. Reynolds’ defense was an improper

attack on “the victim” in an effort to blame “the victim” for the damages he suffered,

even though Mr. Schleider’s wife admitted on the stand that her husband bore some

responsibility for his injuries because he did not try hard enough to quit smoking.

The Plaintiffs’ counsel also disparaged R.J. Reynolds’ counsel and suggested that

they were participants in the tobacco industry’s conspiracy.

[Plaintiffs’ Counsel]: You know, it’s funny that they get up here and
they….

....

[Plaintiffs’ Counsel]: She just got up here and she showed you all the
scientists who did all this research, the 6,000 studies, and it’s amazing
that they are still proud of it, that they are still bragging about all the
research that all this money paid for when the judge is going to instruct
you that the Engle trial, the CTR, funded that research and they were
found liable for the fraud. So they still haven’t - -

[Defense Counsel]: Objection, misstating the instruction, your Honor.

40
 [Plaintiffs’ Counsel]: Well, [the trial court] will read the instruction to
you.

[The Court]: Okay, I already read that in jury instructions. Continue to
finish up your closing.

[Plaintiffs’ Counsel]: You heard from Dr. Proctor about that research,
what the dirty money was used for, how people didn’t know what it was
being used for, the CTR, the TIRC, they were all in it together, they
were all part of the fraud. So the fact that they’re still, still, to this day,
trying to pretend like they - -

[Defense Counsel]: Objection, to characterizing our defense of the case,
Your Honor.

[Plaintiffs’ Counsel]: Okay, I’ll move on.

[Defense Counsel]: Motion - -

[The Court]: Move on, Mr. Paige [Plaintiffs’ counsel].

This Court has repeatedly reversed judgments and remanded for new trials

based on arguments that denigrated the defense of a case or suggested that the

defendant had done something wrong by not admitting responsibility, presenting a

defense, or arguing comparative fault by the plaintiff. For example, in Pajares, this

Court reversed and remanded for a new trial based on plaintiff’s counsel’s improper

closing arguments, which included attacks upon Carnival for presenting evidence

that Pajares smoked, and asking the jury to consider Pajares’s smoking when

determining his comparative negligence, and suggesting that Carnival should be

punished for defending the claims against it and for failing to accept its responsibility

and the harm it had caused Pajares. Pajares, 972 So. 2d at 977-78.

41
 This Court has also held that plaintiff’s counsel’s improper, inflammatory

remarks and personal attacks upon defense counsel required a new trial in Sanchez

v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007); State Farm Mut. Auto Ins. Co.

v. Revuelta, 901 So. 2d 377, 379-80 (Fla. 3d DCA 2005) (reversing a judgment in

favor of Revuelta where Revuelta’s counsel insinuated that State Farm had acted in

bad faith by defending the action, rather than simply paying the benefits); Carnival

Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989) (reversing

the judgment entered in favor of the plaintiffs and remanding for a new trial due to

comments made by the plaintiffs’ counsel disparaging the manner in which Carnival

defended the action).

This Court has not been alone in its conclusion that such objected-to

arguments are not harmless and require a new trial. See R.J. Reynolds Tobacco Co.

v. Odom, 210 So. 3d 696, 701-02 (Fla. 4th DCA 2016) (“In the tobacco context, we

have held that if preserved, comments disparaging a tobacco company for failing to

take responsibility warrant a new trial.”); Cohen v. Philip Morris U.S.A., Inc., 203

So. 3d 942, 948 (Fla. 4th DCA 2016) (finding that the trial court did not abuse its

discretion by granting a new trial based on objected-to closing comments by

plaintiff’s counsel concerning the tobacco company’s failure to take responsibility);

R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA 2016)

(finding that tobacco defendants’ preserved objections to plaintiff’s counsel’s

42
improper comment as to tobacco companies’ “alleged failure to accept

responsibility” mandated reversal); Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960-

61 (Fla. 4th DCA 2013) (reversing and remanding for a new trial where insured’s

counsel improperly urged the jury to punish Allstate for defending against its

insured’s claim); Intramed, Inc. v. Guider, 93 So. 3d 503, 506-07 (Fla. 4th DCA

2012) (reversing for a new trial based on plaintiff’s counsel’s arguments suggesting

that Intramed should be punished for failing to take responsibility, for failing to

apologize, and for defending the case).

In Calloway, the Fourth District Court of Appeal, sitting en banc, concluded

that the tobacco company defendants were entitled to a new trial based on plaintiff’s

counsel’s improper inflammatory closing arguments. Calloway, 201 So. 3d at 758-

59. The inflammatory arguments made by plaintiff’s counsel in that case centered

around the tobacco companies’ failure to take responsibility for their actions,

plaintiff’s counsel’s suggestion that the tobacco companies should be punished for

contesting damages at trial, and arguing that the tobacco companies’ defense of their

actions in court was improper. Id. at 759-61. The Fourth District noted that it had

previously found such arguments to be improper in Marotta, Guider, and Philip

Morris USA, Inc. v. Tullo, 121 So. 3d 595, 598 (Fla. 4th DCA 2013). In Marotta

and Guider, the Fourth District reversed and remanded for a new trial because the

objections to these arguments were preserved; however, it affirmed the judgment in

43
Tullo because the tobacco companies failed to object and the comments did not

constitute fundamental error under the four-part test established by the Florida

Supreme Court in Murphy. Calloway, 201 So. 3d at 760. The Fourth District also

found in Calloway, that, even though the trial court had sustained many of the

tobacco companies’ objections to these arguments and in some instances gave a

curative instruction, the trial court failed to adequately perform its duty to control

the behavior of plaintiff’s counsel and that the cumulative effect of the repeated

improprieties and sustained objections unduly prejudiced the jurors. Id. at 763-65.

In the instant case, the Plaintiffs’ counsel’s improper arguments were

exacerbated by the trial court’s failure to sustain R.J. Reynolds’ objections, thus

encouraging, rather than admonishing, the Plaintiffs’ counsel to continue to make

such arguments and telegraphing to the jury that these improper arguments should

be considered in reaching its verdict. If sustaining the objections and giving curative

instructions was insufficient to erase the taint of similar improper arguments in

Calloway, then clearly overruling and ignoring R.J. Reynolds’ objections in the

instant case require a new trial.

We should also reject, as the Fourth District Court of Appeal has rejected, the

assertion that such arguments are permissible because in addition to determining the

proper amount of compensation, the jury was asked to determine whether punitive

damages was warranted. See Cohen, 203 So. 3d at 942 (rejecting the argument that

44
even if such arguments could be considered relevant to the issue of punitive

damages, the arguments may have tainted the jury’s compensatory liability

determination). And, as will be discussed later in this dissent, the Plaintiffs have

failed to prove that there is no reasonable possibility that the trial court’s incorrect

overruling of R.J. Reynolds’ objections to the improper arguments by the Plaintiffs’

counsel (suggesting that R.J. Reynolds should be punished for defending the case,

failing to take responsibility, and for blaming Mr. Schleider for continuing to smoke

after he became aware of the danger to his health) did not contribute to the verdict.

Based on Pajares, Sanchez, Fasani, Revuelta, Rosania, Cohen, Odom,

Calloway, Marotta, and Guider, the Plaintiffs’ counsel’s arguments disparaging R.J.

Reynolds’ defense of the Plaintiffs’ claims and suggesting that R.J. Reynolds was

acting in bad faith for pursuing a comparative negligence defense based on Mr.

Schleider’s continued smoking after learning about its harmful effects was improper.

The trial court erred by overruling R.J. Reynolds’ objections to these improper

arguments and, as will be discussed later in this dissent, these arguments, coupled

with the improper inflammatory arguments and other improper arguments, deprived

R.J. Reynolds of its right to a fair trial, requiring a reversal for a new trial.

C. Comparing R.J. Reynolds’ “wealth” and “power” to that of Mr. Schleider

The courts in this state have long recognized that “jurors have a tendency to

favor the poor as against the rich and, if provoked by such inflammatory evidence,

45
the jury is likely to apply the deep pocket theory of liability.” Sossa ex rel. Sossa v.

Newman, 647 So. 2d 1018, 1019-20 (Fla. 4th DCA 1994); see also Revuelta, 901

So. 2d at 380 (recognizing that jurors may be influenced by evidence of a party’s

wealth).

Plaintiffs’ counsel, however, highlighted R.J. Reynolds’ and the tobacco

industry’s wealth and power in his closing arguments and asked the jury to compare

that power and wealth to Mr. Schleider who was just a “a gentleman who was

addicted to nicotine who tried as hard as he could to stop.”

[Plaintiffs’ Counsel]: And I just want to be clear, we’re talking about a
gentleman who was addicted to nicotine who tried as hard as he could
to stop, and we ask you to compare that to the actions of these
corporations. You know, it’s not just R.J. Reynolds, it’s Brown &
Williamson, American Tobacco, all their power, all their money.
R.J. Reynolds’ counsel immediately objected and requested to approach the

bench to make a motion. At the sidebar conference, R.J. Reynolds’ counsel

articulated his objections and moved for a mistrial. R.J. Reynolds argued that

Plaintiffs’ counsel’s argument was in violation of R.J. Reynolds’ pre-trial motion

in limine, which was granted by the trial court, precluding the Plaintiffs’ counsel

from commenting on the wealth, resources, or financial being of the company, and

specifically noted that the argument was directed to and made in the context of

comparative fault. The trial court overruled the objection and told Plaintiffs’

counsel to rephrase the argument and to move on.

Plaintiffs’ counsel’s argument was clearly improper. The trial court erred by

46
denying R.J. Reynolds’ objection, and the cumulative effect of the Plaintiffs’

counsel’s improper arguments and the trial court’s overruling of each and every one

of R.J. Reynolds’ timely objections requires a new trial. The majority opinion has

not addressed this argument and has not considered its effect when combined with

the highly improper arguments already discussed in this dissent.

II. The Plaintiffs Did Not Establish That These Errors Were Harmless.
Thus, a New Trial is Required

The trial court erred when it overruled and, in some cases, ignored, R.J.

Reynolds’ objections thereby improperly permitting Plaintiffs’ counsel to: (1)

make inflammatory arguments meant to appeal to the sympathy of the jurors and to

evoke an emotional response from them; (2) encourage the jury to punish R.J.

Reynolds for damages suffered by non-parties to the litigation; (3) attack R.J.

Reynolds and its counsel for their defense of the case and arguments regarding Mr.

Schleider’s comparative fault; and (4) ask the jurors to compare R.J. Reynolds’ and

the tobacco industry’s wealth and power to that of Mr. Schleider. Because R.J.

Reynolds timely objected, and its objections were overruled, the harmless error

standard of review applies. Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016); Diaz

v. State, 139 So. 3d 431, 434 (Fla. 3d DCA 2014).

Because the Plaintiffs were the beneficiary of these errors, the Plaintiffs must

establish that there is no reasonable possibility that their counsel’s improper

arguments contributed to the jury’s $21 million non-economic loss of

47
consortium damages verdict. See Special, 160 So. 3d at 1256. The Plaintiffs

clearly have not met that burden, and thus, a new trial is mandated.

The strongest indicator that the jury was influenced by the Plaintiffs’

counsel’s improper arguments is the extremely high non-economic damages

awarded by the jury to Mr. Schleider’s wife ($15 million) and Mr. Schleider’s non-

dependent daughter ($6 million). The $15 million award to Mr. Schleider’s wife is

$4.2 million more than the highest non-economic damages award ever

affirmed in a Florida wrongful death case involving the death of a spouse, and

was $4 million more than what the Plaintiffs’ counsel asked the jury to award Mrs.

Schleider. Further, the $6 million award for Mr. Schleider’s non-dependent

daughter far exceeds compensatory awards to children who are not living with their

deceased parent and who are financially independent.

A. The $15 million loss of consortium award to Mr. Schleider’s wife

The Plaintiffs have not been able to identify a single affirmed non-economic

award to a surviving spouse close to the $15 million award to Mr. Schleider’s wife.

The record does not establish any unique facts or circumstances in this case which

could possibly justify such a high award to Mrs. Schleider. The record reflects that

Mr. and Mrs. Schleider married in 1966; on December 13, 1996, Mr. Schleider was

diagnosed with having a metastasized small-cell cancer in his liver which had

probably originated in his lung; and six months after being diagnosed, Mr. Schleider

48
died. The record also reflects that in 1978 or 1979, while working as a carpenter,

Mr. Schleider fell from a roof, suffered debilitating fractures in both heels, and

injured his back, which resulted in a declaration that he was permanently disabled.

Thereafter, Mrs. Schleider supported the family while Mr. Schleider stayed home

and cared for their children.

Although it is clear that Mr. Schleider did an excellent job performing the

many tasks as a stay-at-home parent and was a loving husband and father, there is

very little evidence as to the pain and suffering he experienced following his

diagnosis and his death six months later. Further, there was little evidence as to the

emotional or physical pain Mrs. Schleider experienced during that six-month period

associated with her husband’s illness. In fact, the record reflects that prior to the

diagnosis in 1996, Mr. Schleider demonstrated no symptoms other than periodic

fatigue and that the only pain he was experiencing was the daily chronic pain due

to his disabling prior injuries. Further, the record does not reflect how involved

Mrs. Schleider was in her husband’s care or what that care involved. Mrs. Schleider

testified that hospice came to the house each day to assist with her husband’s care,

and that she did not accompany her husband for his doctors’ appointments.

Additionally, the only post-death evidence regarding Mrs. Schleider’s life since her

husband’s death in 1997 is that she has never remarried, she still lives in the Florida

Keys, she misses her husband, and she has travelled extensively around the world

49
with her friends.

This absence of evidence is important because spousal awards that were

much smaller than the $15 million award to Mrs. Schleider, but which the appellate

courts considered had reached the upper limit of a permissible award, were affirmed

based upon record evidence that demonstrated extraordinary suffering by the

surviving spouse. For example, in Philip Morris USA Inc. v. Cohen, 102 So. 3d 11,

19 (Fla. 4th DCA 2012),8 the Fourth District Court of Appeal found that, although

the $10 million compensatory damage award to Cohen’s surviving spouse was at

the outer limit of reasonableness for such a case, the record established an

evidentiary basis to justify the award. Specifically, the jury heard testimony about

what the couple’s life was like after Nathan’s diagnosis. The jury also learned that

Nathan’s wife tore both of her rotator cuffs while caring for Nathan and, although

her injuries were very painful and required surgery, Nathan’s wife testified that the

emotional injury she suffered during that time was worse than the physical pain she

had endured. Cohen, 102 So. 3d at 19.

The Fourth District noted that the evidence in Cohen regarding Nathan’s

8
This case should not be confused with Cohen v. Philip Morris USA, Inc., 203 So.
3d 942 (Fla. 4th DCA 2016), which has been cited to earlier in this dissent and which
was reversed based on improper closing arguments made by counsel for the plaintiff.
In Cohen v. Philip Morris, the smoker was Helen Cohen. In Philip Morris v. Cohen,
the smoker was Nathan Cohen. The two cases are unrelated, involved different
plaintiffs, and the issues on appeal were completely different.

50
spouse’s pain and suffering was nearly identical to the evidence relied upon by the

First District in R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st

DCA 2012). Cohen, 102 So. 3d at 19. In Townsend, a divided panel affirmed a

$10.8 million compensatory damage award to the surviving spouse even though it

was the highest non-economic damage award affirmed for such damages in an

Engle-progeny case. The majority concluded that the record established an

evidentiary basis for the high award. Townsend, 90 So. 3d at 311-12. Mrs.

Townsend testified that she and her husband enjoyed a very close relationship

during their 39-year marriage and they were always together until her husband

became ill. Id. at 312. When he became ill, Mrs. Townsend was forced to remain

in Ocala to work to support the couple while Mr. Townsend received treatment and

underwent surgery related to his lung cancer in Chicago. Id. at 312. Mrs. Townsend

also described her husband’s suffering, how she cared for him as he lay dying during

the final six months of his life, and the acute impact this had and will continue to

have on her for the rest of her life. Id.

The panel in Townsend was, however, divided on the reasonableness of the

award. In his dissent, Judge Wetherell recognized that an award should only be

disturbed if it is “so inordinately large as obviously to exceed the maximum limit of

a reasonable range within which the jury may properly operate” but he concluded

that this standard was met in Townsend with its $10.8 million award to Mrs.

51
Townsend. Id. at 316-17 (Wetherell, J., dissenting in part) (internal citations

omitted). Judge Wetherell noted that the cases cited to by the plaintiff “in an attempt

to justify the excessive compensatory damage award in this case involved awards to

parents for the death of a child, which is a far more traumatic loss than the loss of a

spouse to lung cancer after a lifetime of smoking.” Id. at 317 (footnote omitted).

Judge Wetherell also stated that in Citrus County v. McQuillin, 840 So. 2d 343, 347

(Fla. 5th DCA 2003), the “Fifth District made a point of noting that the $4.4 million

non-economic damage award in that case (for a 7-year-old child who lost his mother

in a ‘horrific’ car accident) was ‘on the outer limit in size.’” Townsend, 90 So. 3d

at 317. Judge Wetherell was also convinced that the jury’s verdict was the product

of passion and prejudice based on the improper and inflammatory arguments made

by counsel for the plaintiff, but which were not preserved by objection or raised on

appeal, and posited that non-economic compensatory damages to a surviving spouse

similar to this case should be no higher than $5 million. Id. at 319.

Based on the affirmances of $10 million and $10.8 million compensatory

spousal damage awards in Cohen and Townsend, respectively, this Court affirmed a

$10 million compensatory spousal award in Lorillard Tobacco Co. v. Alexander, 123

So. 3d 67 (Fla. 3d DCA 2013). Alexander is distinguishable because, unlike the

instant case, in Alexander there were no improper closing arguments and Mrs.

Alexander described her pain and suffering as she “nursed, cared for, and watched

52
the love of her life become incontinent and unable to move or breathe.” Alexander,

123 So. 3d at 78.

The extremely high non-economic damages awards in these three cases are

clearly not the norm as reflected by the following non-exclusive list of recent

verdicts involving spousal awards for compensatory damages.

• Philip Morris USA Inc. v. Gore, No. 4D15-3892, 2018 WL 859058
(Fla. 4th DCA Feb. 14, 2014)—$2 million.
• Philip Morris USA Inc. v. Boatright, 217 So. 3d 166 (Fla. 2d DCA
2017)—$2.5 million.
• Philip Morris USA Inc. v. Barbose, 228 So. 3d 702 (Fla. 2d DCA
2017)—$10 million to estate consisting of wife and two children.
• Philip Morris USA Inc. v. Marchese, 231 So. 3d 473 (Fla. 4th DCA
2017)—$1 million.
• Gentile, Estate of v. Philip Morris USA Inc., 2017 WL 7518447 (Fla.
15th Cir. Ct., Oct. 10, 2017)—$7 million to estate consisting of spouse
and adult children.
• Sommers v. Philip Morris USA Inc., 2017 WL 3783048 (Fla. 11th Cir.
Ct., June 17, 2017)—$1 million.
• Whitmire v. R.J. Reynolds Tobacco Co., 2017 WL 5006528 (Fla. 2d
Cir. Ct., March 28, 2017) $3 million to estate consisting of spouse
and one adult son.
• R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674 (Fla. 1st DCA
2017)—$16 million to estate consisting of spouse and son but
reversed due to improper closing arguments.
• Lawrence v. R.J. Reynolds Tobacco Co., 2017 WL 4416433 (Fla. 5th
Cir. Ct., May 9, 2017)—$250,000.
• Brown v. Phillip Morris, 2017 WL 2264504 (Fla. 6th Cir. Ct., March 1,
2017)—$1.8 million.
• Lima v. R.J. Reynolds Tobacco Co., 2017 WL 2306252 (Fla. 13th Cir.
Ct., April 20, 2017)—$3 million to estate consisting of spouse and
four adult children.
• Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115 (Fla. 4th DCA
2017)—$3 million but reversed due to improper introduction of
evidence by plaintiff.

53
• R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA
2017)—$3.5 million.
• R.J. Reynolds Tobacco Co. v. Wilcox, 197 So. 3d 52 (Fla. 3d DCA
2016)—$7 million.
• Ledo v. R.J. Reynolds Tobacco Co., 2016 WL 8467771 (Fla. 11th Cir.
Ct., Nov. 2, 2016)—$6 million to estate consisting of spouse and one
adult son.
• Johnston v. R.J. Reynolds Tobacco Co., 2016 WL 8116092 (Fla. 12th
Cir. Ct., Nov. 2, 2016)—$7.5 million.
• Price v. R.J. Reynolds Tobacco Co., 2016 WL 6157876 (Fla. 4th Cir.
Ct. Sept. 28, 2016)—$6.4 million.
• Konzelman v. R.J. Reynolds Tobacco Co., 2016 WL 7337376 (Fla.
11th Cir. Ct. Oct. 24, 2016)—$8.5 million.
• Cohen v. Phillip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA
2016)—$2,055,050 million—but reversed based on improper
closing arguments.
• R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408 (Fla. 3d DCA
2016)—$5 million.
• Varner v. R.J. Reynolds, 2016 WL 6839474 (Fla. 17th Cir. Ct. July 19,
2016)—$1.5 million.
• McCabe v. R.J. Reynolds Tobacco Co., 2016 WL 5375150 (Fla. 13th
Cir. Ct. May 19, 2016)—$5 million for spouse and four children.
• Nally v. R.J. Reynolds Tobacco Co., 2016 WL 6839473 (Fla. 10th Cir.
Ct. May 17, 2016)—$6 million.
• R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53 (Fla. 4th DCA
2016)—$5.8 million but reversed based on improper closing
argument.
• Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016)—$2
million.
• McCoy v. R.J. Reynolds Tobacco Co., 2015 WL 12844640 (Fla. 17th
Cir. Ct. July 13, 2015)—$1.5 million for spouse and eight children.
• R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA
2015)—$10 million.
• Hardin v. R.J. Reynolds Tobacco Co., 2015 WL 10015108 (Fla. 11th
Cir. Ct. June 18, 2015)—$776,000.
• R.J. Reynolds Tobacco Co. v. Ward, 141 So. 3d 236 (Fla. 1st DCA
2014)—$487,000.
• Clayton v. R.J. Reynolds Tobacco Co., 2014 WL 8764384 (Fla. 4th Cir.
Ct. March 17, 2014)—$550,000.

54
 • Bowden v. R.J. Reynolds Tobacco Co., 2014 WL 8764383 (Fla. 4th
Cir. Ct. March 26, 2014—$5 million.
• Johnson v. R.J. Reynolds Tobacco Co., 2014 WL 3810357 Fla. Cir. 1st
Ct. July 21, 2014)—$7.3 million for spouse and one child.
• R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016)—
$3 million.
• Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th DCA
2013)—$4.5 million.
• Loyd v. R.J. Reynolds Tobacco Co., 2013 WL 12110278 (Fla. 13th Cir.
Ct. Feb. 11, 2013)—$3.120 million for spouse and three children.
• Philip Morris USA, Inc. v. Allen, 116 So. 3d 467 (Fla. 1st DCA
2013)—$3 million.
• R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th
DCA 2013)—$4.83 million.
• Skolnick v. R.J. Reynolds Tobacco Co., 2013 WL 6001152 (Fla. 15th
Cir. Ct. June 19, 2013)—$2.5 million.
• Sikes v. R.J. Reynolds Tobacco Co., 2012 WL 10702742 (Fla. 4th Cir.
Ct. Sept. 20, 2012)—$2,165,722 million.
• R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA
2011)—$5 million.
• Mack v. R.J. Reynolds, 2011 WL 1562171 (Fla. 8th Cir. Ct. March 18,
2011)—$1 million.
• R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th DCA
2011)—$1.2 million. Wife passed away before case proceeded to
trial, $1,000,000 awarded to estate (two sons).

All of the cases cited above were tobacco cases, most included R.J. Reynolds

as a defendant, and similar evidence was presented. The only things “unique” about

the instant case are that, despite the jury’s finding that punitive damages were not

appropriate in this case, the jury awarded Mr. Schleider’s wife $15 million for her

loss of consortium claim, which was $4 million more than the $11 million Plaintiffs’

counsel asked the jury to award and is the highest award to a surviving spouse, and

the lack of evidence to support such a large loss of consortium spousal award. The

55
substantially higher jury award to Mr. Schleider’s wife, when compared with the

awards to surviving spouses for non-economic damages in similar tobacco wrongful

death cases demonstrate that the improper objected-to closing arguments made by

Plaintiffs’ counsel in the instant case is not harmless error—that there is no

reasonable possibility that the improper arguments contributed to the jury’s verdict.

B. The $6 million non-economic damages award to Mr. Schleider’s non-
dependent daughter

Under Florida’s wrongful death statute, “[m]inor children of the decedent, and

all children of the decedent if there is no surviving spouse, may . . . recover for lost

parental companionship, instruction, and guidance and for mental pain and suffering

from the date of injury.” § 768.21(3), Fla. Stat. (2014). Section 768.18(2) defines a

minor child as a child under twenty-five years of age. Thus, although Mr. Schleider

was survived by his wife, his daughter, who was twenty-two years old at the time of

her father’s death, qualifies as a minor for purposes of the wrongful death statute,

and therefore, may seek an award of non-economic (loss of consortium) damages.

However, “[u]nder Florida law an award of non-economic damages must bear

a reasonable relation to the philosophy and general trend of prior decisions in such

cases.” Cohen, 102 So. 3d at 18 (quoting Bravo v. United States, 532 F.3d 1154,

1162 (11th Cir. 2008)). The jury awarded Mr. Schleider’s daughter, who was

twenty-two years old and not living with her parents or financially dependent on

them when Mr. Schleider died, $6 million. Although the issue addressed in this

56
dissent is the effect of the Plaintiffs’ counsel’s improper arguments on the jury, and

relies on the extremely high verdicts as evidence that the error was not harmless, we

note that our sister courts have found that awards which were in the range awarded

Mr. Schleider’s daughter, were excessive. For example, in R.J. Reynolds Tobacco

Co. v. Webb, 93 So. 3d 331, 338 (Fla. 1st DCA 2012), the First District Court of

Appeal reversed a $7.2 million non-economic damage award to an adult daughter as

excessive after failing to uncover a single case in which an adult child had received

a wrongful death award of that magnitude that had been affirmed on appeal and

finding that the record did not support such an award because Mr. Webb’s daughter

was not dependent on her father’s companionship, instruction, and guidance when

he died. Id. at 339.

The Fourth District Court of Appeal also reversed the $5 million non-

economic damages award to Mrs. Putney’s non-dependent children in Philip Morris

USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016). The Fourth District

concluded that although Mrs. Putney’s children were entitled to a consortium award,

$5 million was excessive when compared with similar cases and where none of the

children lived with or relied on Mrs. Putney for support. Putney, 199 So. 3d at 471;

see also MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129, 1136 (Fla. 3d DCA

2000) (reversing as excessive the jury’s $1 million non-economic damages awards

to each of the four children who were not residing with or financially dependent

57
upon their deceased father for support).

Although in these cases the issue was whether the loss of consortium awards

to the decedent’s children were excessive and thus requiring the issuance of a

remittitur, not whether the defendant was entitled to a new trial altogether due to the

plaintiff’s counsel’s improper arguments, they highlight and support the conclusion

that the Plaintiffs’ counsel’s improper arguments in this case were not harmless, as

the jury awarded Mr. Schleider’s non-dependent daughter $6 million, an amount

other courts have found to be excessive.

C. The trial court’s failure to sustain R.J. Reynolds’ objections is not harmless
error

As previously stated, the Plaintiffs have the burden to prove that their

counsel’s highly inflammatory and other improper arguments to the jury did not

contribute to the verdict. Special, 160 So. 3d at 1256; see also Calloway, 201 So. 3d

at 761. In other words, the Plaintiffs must demonstrate that “there is no reasonable

possibility that the error contributed to the verdict.” Id.

After a review of the evidence presented in this case, which included that Mr.

Schleider’s pain and suffering extended over no more than a six-month period, and

a review of the loss of consortium verdicts sustained in similar tobacco-related cases,

it is impossible to conclude that there is no reasonable possibility that the cumulative

effect of the Plaintiffs’ counsel’s highly inflammatory and highly improper

arguments did not contribute to the loss of consortium awards to Mr. Schleider’s

58
wife and non-dependent daughter. The appellate courts of this state have reversed

and remanded for a new trial even where the improper arguments were less offensive

than the arguments made in this case.

In R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674, 683 (Fla. 4th DCA

2017), the Fourth District Court of Appeal concluded that plaintiff’s counsel’s

improper arguments and comments “clearly intended to stir the passions of the jury,”

and based on the high verdict awards, it was clear that counsel’s “misconduct had

its intended effect.” See also Harbor Ins. Co. v. Miller, 487 So. 2d 46, 47 (Fla. 3d

DCA 1986) (finding that the excessiveness of the award was evidence that the

prejudicial conduct complained of by the appellant influenced the trial); Christopher

v. Fla., 449 F.3d 1360, 1374 n.11 (11th Cir. 2006) (concluding that “the jury’s award

of excessive damages [was] proof that Plaintiff’s counsel’s misconduct probably

influenced the jury”).

A new trial is required in the instant case because the Plaintiffs’ counsel’s

improper closing arguments went unchecked and were enforced and aggravated by

the trial court, which either overruled R.J. Reynolds’ objections, merely thanked R.J.

Reynolds after R.J. Reynolds objected, asked Plaintiffs’ counsel to rephrase or move

on, and denied R.J. Reynolds’ numerous requests for a side bar. As the Fourth

District stated in Calloway, “the trial court’s duty was clear—to respond to such

behavior by curbing multiple instances of improper argument and ensuring that the

59
jury was not being led astray by repeated objectionable comments.” Calloway, 201

So. 3d at 763. “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.” Id.

To reiterate, the cumulative effect of the following objected-to arguments

made by the Plaintiffs’ counsel requires a new trial because the Plaintiff has failed

to demonstrate that there is no reasonable possibility that they did not contribute to

the extremely high consortium verdicts in this case: (1) the highly inflammatory

arguments, wherein Plaintiffs’ counsel asked the jurors to picture watching an

airplane crash on CNN and focus on how bad they would feel for the families of the

dead, how they would “mourn” with the families, and how “horrible” it would be,

and then to multiply that horror by three plane crashes a day for a year, which would

result in the deaths of 450,000 Americans; (2) Plaintiffs’ counsel’s attacks upon R.J.

Reynolds and its counsel for defending the case and presenting evidence of Mr.

Schleider’s comparative fault; and (3) Plaintiffs’ counsel’s arguments comparing

R.J. Reynolds’ “power and wealth” to that of Mr. Schleider. To find that these

multiple improper arguments are harmless error, “encourages ‘Rambo’ litigators,

intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate

courts.” Calloway, 201 So. 3d at 764. Asking the jury to picture watching television

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reporting of a plane crash and to envision the mourning families and their “horrible

loss” and then to multiply that vivid image and loss by three plane crashes a day for

a year in order to grasp the sheer magnitude of the harm caused by R.J. Reynolds,

can never be harmless error. Moreover, the extremely high verdicts in this case

demonstrate that the trial court’s error by not sustaining R.J. Reynolds’ repeated

objections and allowing the jury to consider the Plaintiffs’ counsel’s improper

arguments had a highly prejudicial effect on the jury.

III. The Denial of R.J. Reynolds’ Motion For Remittitur

The remittitur analysis differs from the analysis performed when evaluating

whether to grant a new trial based on improper closing arguments. When a party

moves for a new trial based on improper arguments made by opposing counsel, the

opposing party has the burden of demonstrating that there is no reasonable

possibility that the improper arguments did not contribute to the verdict. This is a

very high burden, and a burden that was clearly not met in this case. On the other

hand, section 768.74, Florida Statutes (2014), requires a completely different

analysis. Section 768.74 sets forth a list of factors a trial court is required to consider

when determining whether an award is excessive or inadequate. A trial court’s

ruling on a motion for remittitur is reviewed for an abuse of discretion. Engle v.

Liggett Grp., Inc., 945 So. 2d 1246, 1263 (Fla. 2006).

The majority has provided the factors listed in section 768.74, so they will not

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be repeated here. Importantly, the effect of highly inflammatory and other improper

arguments upon the trier of fact is not among those factors because, when it cannot

be said that there is no reasonable possibility that the improper argument did not

contribute to the verdict, the law holds that the right to a fair trial was denied and a

new trial, not a reduction of the damages, is mandated.

Although a good case can be made here to support a finding that the trial court

abused its discretion by failing to apply a remittitur to the loss of consortium awards,

such an analysis is unnecessary based on my position that a new trial is mandated

because the Plaintiffs have failed to demonstrate that their counsel’s highly

inflammatory and improper arguments did not contribute to the verdict.

Conclusion

In many cases preceding this one, the appellate courts in this state have warned

against the use of inflammatory arguments designed to invoke the jury’s sympathy

and/or anger, attacks upon the defendant or defense counsel for defending the case,

and comparing the wealth and power of the defendant with that of the plaintiff. The

appellate courts have reversed verdicts where these warnings have gone unheeded

and where the plaintiff has not proven that there was no reasonable possibility that

counsel’s improper arguments did not contribute to the jury’s verdict. Here, the

Plaintiffs have not met that burden. R.J. Reynolds timely and repeatedly objected,

but the trial court either overruled the objections or simply told Plaintiffs’ counsel

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to move on, thereby permitting the jury to consider these highly prejudicial

arguments in reaching its verdicts, which are abnormally high under both a historical

and a record analysis.

If appellate court warnings are to have any meaningful effect and if fairness

and confidence in the judicial system are to be preserved, this case must be reversed

for a new trial free of such error.

Accordingly, I respectfully dissent.

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