R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA, INC. v. MYRON KAPLAN, as Personal Representative of the Estate of Sheila Kaplan

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA INC.,
Appellants,

v.

MYRON KAPLAN, as Personal Representative of the
ESTATE OF SHEILA KAPLAN,
Appellee.

No. 4D18-2880

[June 23, 2021]

Appeal and cross appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. 08-025823.

Scott A. Chesin and Michael Rayfield of Mayer Brown LLP, New York,
N.Y., and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP,
Washington, D.C., for appellant Philip Morris USA Inc.

William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
GA, for appellant R.J. Reynolds Tobacco Co.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, and Scott P. Schlesinger, Jonathan R. Gdanski and Brittany
Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, and Philip J.
Padovano and Celene H. Humphries of Brannock Humphries & Berman,
Tampa, for appellee.

ON MOTION FOR REHEARING EN BANC AND
REVISED WRITTEN OPINION

CONNER, J.

We deny the appellants’ motion for rehearing en banc, but grant
appellants’ motion for a revised written opinion, withdraw our opinion
dated December 9, 2020, and issue the following in its place:

Appellants R.J. Reynolds Tobacco Company and Philip Morris USA, Inc.
(collectively, “Tobacco”) appeal a judgment in favor of Myron Kaplan
(“Plaintiff”), as personal representative of the estate of Sheila Kaplan
(“Decedent”). Tobacco raises five issues on appeal. We affirm as to all five
issues without discussion, except for the issue concerning two egregiously
improper closing arguments by Plaintiff’s counsel. 1 We choose to discuss
that issue because the problem is recurring, and the trial court improperly
overruled objections to the arguments. We write to stress once again to
trial judges the importance of curbing improper closing arguments
designed to appeal to the emotions and passions of jurors. Inflammatory
improper arguments must be stopped to maintain public confidence in our
system of justice.

Background

Decedent began smoking cigarettes at age 14 or 15, including brands
manufactured by Tobacco. Plaintiff and Decedent married in 1964. When
Plaintiff first met Decedent, she was a “heavy smoker.” Decedent was
eventually diagnosed with a lung tumor in 1994, leading to surgery to
remove one of her lungs. After the surgery, Decedent quit smoking.
Although the doctors thought she was in remission, her cancer returned,
and she eventually died.

Plaintiff filed a six-count complaint against Tobacco making the usual
Engle 2 progeny case claims. As typical with Engle cases, the trial was
conducted in two phases. Much of the evidence in Phase I revolved around
the issue of whether Decedent died of a form of lung cancer established by
the Engle findings to be caused by smoking.

During the initial closing argument in Phase I, immediately after
making reference to the Engle findings, Plaintiff’s counsel made the
following argument, to which Tobacco objected:

[Plaintiff Counsel]: Now, the obligation would have been,
upon the discovery in the ’50s of this
terrible truth about their product, would
have been stop making it or fix it. And

1 We affirm as to Tobacco’s claim that punitive damages are barred by section
768.73(2)(a), Florida Statutes, based on R.J. Reynolds Tobacco Co. v. Konzelman,
248 So. 3d 134, 135 (Fla. 4th DCA 2018). We further affirm as to Tobacco’s claim
that the preclusive use of the Engle findings violated due process based on Philip
Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430-31 (Fla. 2013).

2 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

2
 they fooled the public health, right?
Even they—even—

They even had that third-party strategy
of corrupting scientists to do their
bidding and to fool public health officials
into saying, well, if you got to smoke,
smoke the filters. And that went on for
decades and decades. So that’s another
form of reassurance. The public health
authority were unwitting dupes. They
were helping.

So that’s the Engle finding. That’s the
Engle trial. And these are your findings,
right? These are—

There are blood, sweat and tears to get
these things.

[Tobacco Counsel]: Objection, Your Honor; improper
argument.

THE COURT: Overruled.

[Plaintiff Counsel]: It’s like the movie “Schindler’s List,”
right? There’s a scene in “Schindler’s
List” where he holds up the list — it’s the
most powerful scene in the movie, as far
as I’m concerned — he holds up the list
and he shows the list of the names, the
800 names they’re going to pull out of the
concentration camp and save their lives
—

[Tobacco Counsel]: Objection, Your Honor; improper
argument.

THE COURT: Overruled.

[Plaintiff Counsel]: — and he says — he says —

He goes, the list is an absolute good. He
says, the list is life. He says, all around

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 it is the void. All around it is the
darkness.

This list of rulings [the Engle findings] for
you is an absolute good. It’s an absolute
good.

Tobacco again objected and asked for a sidebar. At sidebar, the following
exchange occurred:

[Tobacco Counsel]: He just analogized [Tobacco] to the
Germans . . . to the Germans in the
Holocaust. The victims of cigarette
smoking and the victims of the
Holocaust.

That is incredible. That is such a
violation of proper argument.
Characterizing [Tobacco] as Nazis, as
being like those that killed — engaged in
a genocide?

THE COURT: Well, I understand your objection, but I
didn’t get that out of it. He was talking
about a movie and a list, and he
mentioned the — . . . .

Plaintiff’s counsel interjected that in Engle, the Third District reversed in
part because Engle’s counsel made a direct comparison of the tobacco
companies to the Nazis; however, our supreme court reinstated the verdict
after deciding the comparison was over the line, but not grounds for
reversing a long trial. The trial court responded:

THE COURT: Right.

[Plaintiff Counsel]: Here, I’m not talking about —

I didn’t compare them to Nazis. I’m not
talking about —

THE COURT: You didn’t go anywhere near that.

[Tobacco Counsel]: Holocaust is right in the middle of it.
Sorry to interrupt.

4
 THE COURT: No; I mean, he didn’t go — he didn’t go
there . . . .

The trial court overruled the objection to the Schindler’s List argument and
asked if Tobacco was moving for mistrial. Tobacco moved for mistrial at
sidebar and the trial court reserved ruling. After the Plaintiff’s initial
closing argument, Tobacco again moved for a mistrial based on the
Schindler’s List argument, as well as multiple sustained objections during
the initial closing. The trial court again reserved ruling.

Later, Plaintiff’s counsel ended his rebuttal closing argument in Phase
I as follows:

[Plaintiff Counsel]: Let me finish with this. There is a
passage from a book I want to read
briefly. It is a book by George Orwell
called 1984.

It was made into a movie, okay.
Jonathan Hurt, who is long gone and
Richard Burton, who is long gone,
academy award-winning actor, played
the roles in the movie.

And the actor, Hurt, was the victim; and
Big Brother was Richard Burton. And he
—

[Tobacco Counsel]: Objection, Your Honor, improper
argument.

THE COURT: Overruled.

[Plaintiff Counsel]: — he’s standing over Winston, who he’s
about to torture, so he can make his
mind right, so he can have nothing but
the love of Big Brother.

He’s standing over him, and this is what
he says. And above all, Winston — no,
sorry — and above all, we do not allow
the dead to rise up against us. You must

5
 stop imagining that posterity will
vindicate you, Winston.

Posterity will never hear of you. You will
be lifted clean out from the stream of
history. We shall turn you into a gas and
pour you into the stratosphere. Nothing
will remain of you, not a name in a
register.

[Tobacco Counsel]: Objection, Your Honor, this is improper
argument.

THE COURT: Overruled.

[Plaintiff Counsel]: Not a memory in a living brain — not a
name in a register, not a memory in a
living brain. You will have been
annihilated in the past, as well as in the
future. You will never have existed.

When you go back there and you make
this right and you do justice, you will
prove that that passage will not come
true for my client, [Decedent].

After Phase I of the trial, the jury returned a verdict for compensatory
damages for past pain and suffering in the amount of $1.58 million,
$520,000 for future damages, and $7,211 for funeral expenses. The jury
also found by clear and convincing evidence that punitive damages were
warranted against both tobacco companies, and, at the end of Phase II,
the jury awarded Plaintiff punitive damages totaling $2,971,000.

After the verdict was entered, Tobacco moved for a new trial, raising
multiple grounds. One such ground was multiple improper closing
arguments, including the Schindler’s List and the 1984 arguments. After
denying the motion for new trial, the trial court entered a final judgment
in conformity with the jury’s verdicts. Tobacco gave joint notice of appeal.

Appellate Analysis

Although Tobacco’s motion for new trial argued several instances of
improper closing argument, Tobacco’s appeal focuses on the Schindler’s
List and 1984 analogies and gives little attention to the other asserted

6
improper arguments. The initial brief devoted a total of three pages of
analysis regarding the issue of improper closing arguments, discussing the
issue with conclusory statements. Hence, we similarly confine our
analysis to the Schindler’s List and 1984 arguments.

A. Plaintiff’s closing argument “crossed the line.”

“A trial court’s denial of a motion for mistrial and a motion for new trial
based on improper closing arguments are reviewed for abuse of discretion.”
R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA
2016) (quoting Whitney v. Milien, 125 So. 3d 817, 818 (Fla. 4th DCA 2013)).

Regarding closing arguments, our supreme court and we have stressed:

The purpose of closing argument is to help the jury
understand the issues in a case by “applying the evidence to
the law applicable to the case.” Hill v. State, 515 So. 2d 176,
178 (Fla. 1987). 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.” Knoizen
v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998); see
also Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993).
Moreover, closing argument must not be used to “inflame the
minds and 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.” Bertolotti v. State,
476 So. 2d 130, 134 (Fla. 1985).

Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000)
(alteration in original); see also R.J. Reynolds Tobacco Co. v. Grossman,
211 So. 3d 221, 226 (Fla. 4th DCA 2017); Philip Morris USA, Inc. v. Tullo,
121 So. 3d 595, 600 (Fla. 4th DCA 2013). We have repeatedly “caution[ed]
counsel to be vigilant in crafting closing arguments that fall within the
confines of permissibility.” Tullo, 121 So. 3d at 602; see also Sanchez v.
Martin, 248 So. 3d 1174, 1178 (Fla. 4th DCA 2018); Cohen v. Philip Morris
USA, Inc., 203 So. 3d 942, 947 (Fla. 4th DCA 2016); Calloway, 201 So. 3d
at 765.

“A party may not give a closing argument . . . that is ‘designed to inflame
the emotions of the jury rather than prompt a logical analysis of the
evidence in light of the applicable law.’” Calloway, 201 So. 3d at 760-61
(quoting Intramed, Inc. v. Guider, 93 So. 3d 503, 507 (Fla. 4th DCA 2012));
see also Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1020–21 (Fla. 4th

7
DCA 1996) (explaining that it is impermissible to “appeal to the passions
and prejudices” of the jury in closing arguments). Closing arguments
designed to appeal solely to passion and sympathy are improper. See
Homeowners Choice Prop. & Cas. Ins. v. Kuwas, 251 So. 3d 181, 186 (Fla.
4th DCA 2018).

Regarding improper closing arguments properly preserved for appellate
review, “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.’” Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960 (Fla.
4th DCA 2013) (quoting Engle, 945 So. 2d at 1271).

Turning to the Schindler’s List argument, Tobacco argued below that
the Plaintiff was essentially likening tobacco companies to Nazis. The trial
court agreed that such a comparison “would be extremely prejudicial and
outside the scope of evidence,” but did not think the reference to the movie
created an inference that Tobacco was like the Nazis. With all due respect
to the trial court, the import of comparing the Engle findings to the
“absolute good” of Schindler’s List, listing 800 names which were going to
be “pull[ed] out of the concentration camp and save their lives” is a clear
analogy comparing Tobacco to the Nazis. Even a person serving on a jury
who had not seen Schindler’s List would make that connection, even
though Plaintiff’s counsel did not specifically mention Germany, World
War II, or the Nazis. More importantly, while the trial court may not have
thought that the reference to the movie likened Tobacco to the Nazis,
“[w]hat the jury hears or may understand or infer is the critical point.”
Harris v. State, 381 So. 2d 260, 261 (Fla. 5th DCA 1980).

Plaintiff’s counsel argued that he did not directly compare Tobacco to
the Nazis. Although he did not use the term “Nazis,” saving people from
concentration camps certainly implies saving them from the Nazis. What
is particularly noteworthy is that before both the trial court and this Court,
Plaintiff has proffered no logical explanation of how a list of names relates
to a list of findings in a court proceeding. Our conclusion that Plaintiff’s
counsel was attempting to get by with an oblique, but obvious, comparison
of Tobacco to the Nazis is amplified by the fact that the proffered
explanation to the trial court suggested that the supreme court opinion in
Engle focused on a reference to Nazis in closing arguments in that case,
when in fact there is little discussion in Engle about improper arguments
referencing Nazis; instead, the supreme court’s primary emphasis was on
the improper arguments regarding race. We conclude from the proffered
explanation that Plaintiff’s counsel took a calculated risk that he could
make such a circuitous comparison to Tobacco acting like Nazis and get
away with it.

8
 Regarding the 1984 rebuttal argument, what is most striking is its
focus on describing the context of the scene to give added emphasis to the
words quoted to the victim. More specifically, counsel described that
Winston was about to be tortured and his mind reprogrammed. Not only
was the argument an appeal to sympathy by focusing on the torture
Winston was about to endure, it was a direct appeal to the jurors’
emotions, given the graphic context of the situation in which the words
were spoken. It is also extremely significant that the description of the
scene was a second attempt to obliquely compare Tobacco to a torturous
authoritarian regime. Even more, Plaintiff was unable to logically explain
during oral argument how the following final exhortation to the jury was
not a direct appeal to render a verdict based on emotion:

When you go back there and you make this right and you do
justice, you will prove that that passage will not come true for
my client, [Decedent].

We agree with Tobacco’s argument that the Schindler’s List and 1984
arguments were solely designed to inflame the passions of the jury and
were improper. Counsel’s argument that because no court has directly
said that the Schindler’s List analogy is improper is unavailing. To so hold
would invite this and other courts to play “whack-a-mole” 3 by batting down
every new and creative Nazi (or Big Brother) reference that can be devised.

It is disturbing that on at least four prior occasions, this court has
addressed improper inflammatory closing arguments appealing to passion
by trial counsel Scott P. Schlesinger or his firm Schlesinger Law Offices,
P.A. See Oshinsky-Blacker v. Philip Morris USA, Inc., L.T. Case No.
CACE08-025841 (Fla. 17th Cir. Ct. Mar. 6, 2017), aff’d, 249 So. 3d 643
(Fla. 4th DCA 2018) (per curiam, affirming new trial); Cohen, 203 So. 3d
at 948 (affirming the trial court’s granting a new trial because “counsel
made arguments which crossed the line into ‘take responsibility’ and
‘apologize’ territory,” characterizing counsel’s arguments as “improper”
and “egregious and unacceptable”); Calloway, 201 So. 3d at 761 (“These
comments were designed for no other purpose than to inappropriately
evoke sympathy from the jury.”); Tullo, 121 So. 3d at 601 (determining that
the argument implying tobacco companies were as culpable as drug

3“Whack-a-mole” is an arcade game “in which players use a mallet to hit toy
moles, which appear at random, back into their holes.” See Whack-a-mole,
LEXICO, https: /lexico.com/en/definition/whack-a-mole (last visited May 2,
2021).

9
dealers was improper). Three of these cases resulted in a new trial, and
the fourth, Tullo, very well may have but for the defense’s failure “to raise
a contemporaneous objection to any of the challenged comments.” Id. As
our supreme court stated in Engle with respect to inflammatory closing
arguments in that case, we similarly “condemn these tactics of” Mr.
Schlesinger and conclude that his “conduct [was] unbecoming an attorney
practicing in our state courts.” Engle, 945 So. 2d at 1273.

B. The unacceptable references during closing argument, standing
alone, do not necessitate reversal in this case.

Although these two references during closing argument were
inappropriate and Tobacco’s objections clearly should have been
sustained, these isolated errors do not rise to the level of requiring reversal.
As noted above, with improper closing arguments properly preserved for
appellate review, “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.’” Marotta, 125 So. 3d at 960 (quoting Engle,
945 So. 2d at 1271). For a few reasons, we determine that the improper
arguments do not meet this standard.

Although the comments were discussed at length at sidebar and out of
the jury’s presence, the comments were brief and isolated in reference to
what was said to the jury. Cf. Whitney, 125 So. 3d at 819 (Fla. 4th DCA
2013) (determining that the trial court did not abuse its discretion in
denying the appellant’s motion for new trial, because it could not be said
that no reasonable man would take the view that the improper comments
did not “undermine the entire three-week trial” (quoting Canakaris v.
Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980))); Maksad v. Kaskel, 832 So.
2d 788, 793 (Fla. 4th DCA 2002) (“We have carefully read the entire closing
argument. While a few words and phrases in Dr. Colletta’s two hour
closing argument and one word of the hospital’s closing argument may be
objectionable, in the trial court’s view they did not justify a new trial. We
agree.”). Furthermore, the references to Schindler’s List and 1984 were
not repeated either directly or indirectly and, although deliberately
inflammatory, were presented in a somewhat incoherent fashion (as was,
frankly, much of Plaintiff’s closing argument).

Finally, the verdict returned by the jury in each phase was far less than
requested by Plaintiff’s counsel. Although not determinative of whether
prejudice occurred, it is a factor we can consider in making that
calculation. See R.J. Reynolds Tobacco Co. v. Schleider, 273 So. 3d 63, 70-
71 (Fla. 3d DCA 2018) (awarding compensatory damages in an amount
less than requested was among the factors that “strongly indicate[d] the

10
jury was not inflamed, prejudiced, or improperly mislead by closing
arguments.”).

We point out what the supreme court said in Murphy: “[T]his decision
does not impact the legal standards applicable to consideration of the
issue that has been properly preserved by objection and motion for
mistrial, which remains whether the comment was highly prejudicial and
inflammatory.” 766 So. 2d at 1012 n.2. The harm of inflammatory
comments is that they do not “prompt a ‘logical analysis of the evidence in
light of the applicable law.’” Marotta, 125 So. 3d at 960 (quoting Intramed,
93 So. 3d at 507). Our extensive review of the record in this case leads us
to the conclusion that the jury was not affected by the argument,
understood the instruction that what the attorneys argued was not
evidence, and rendered its decisions according to the evidence.

In its motion for rehearing, Tobacco argues that our original opinion
was erroneous because it failed to apply the proper standard for harmless
error, as set forth by our supreme court in Special v. West Boca Medical
Center, 160 So. 3d 1251 (Fla. 2014). Tobacco is correct that the proper
standard under Special is that “the appellate court must remain focused
on the error itself in order to evaluate whether the beneficiary of the error
has [shown] that there is no reasonable possibility that the error
contributed to the verdict.” Special, 160 So. 3d at 1256 (emphasis added).

However, Tobacco misunderstands our conclusion in this case. We
have not failed to apply the proper harmless error standard; we simply
have not found reversible error in the trial court’s order denying Tobacco’s
motion for new trial. Logically then, because we determine no error, there
is no need to conduct a harmless error analysis. See Bruno v. Moore, 838
So. 2d 485, 489 (Fla. 2002) (“If no error occurred, it follows that there was
no need for a harmless error analysis.”); Curtis v. State, 204 So. 3d 463,
466 n.2 (Fla. 4th DCA 2016) (“[T]here was no error in admitting the
testimony about the bartender’s identification of Curtis from a photo
lineup, and no need for a harmless error analysis.”).

C. Trial Courts must be more vigilant in monitoring over-the-line closing
arguments.

The primary purpose of this opinion is to repeat with emphasis to
trial judges what we said in 1994:

The fact that appellate courts proscribe misconduct by
trial counsel, unfortunately, does not seem to eliminate
it. It is therefore of vital importance that trial judges,

11
 when objections are raised to improper argument as they
were in this case, properly exercise their duties by
stepping in and curbing it.

Bellsouth Hum. Res. Admin., Inc. v. Colatarci, 641 So. 2d 427, 430 (Fla. 4th
DCA 1994) (emphasis added).

Improper closing argument continues to be a major problem that
undermines public confidence in our system of justice. For that reason,
we ardently reemphasize a point we made in Calloway: it is “the ultimate
responsibility [of trial judges] to ensure proper behavior of trial
counsel and fair trial proceedings in his or her courtroom” and it is
their duty to curb improper argument to “ensur[e] that the jury [is]
not being led astray.” Id. at 763 (emphasis added). This is especially
important “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. “A trial judge
should respond to such improper argument in a timely and consistent
manner, and issue proportional rebukes when repeated instances
occur.” Id. (emphasis added). When improper opening statements or
closing arguments are repeated, the rebukes should be in front of the jury.

If the improper behavior continues, we remind trial judges of the option
to use indirect civil contempt monetary sanctions for repeated violations
of court rulings. See, e.g., Moakley v. Smallwood, 826 So. 2d 221, 226
(Fla. 2002) (holding that a trial court possesses the inherent authority to
impose attorney’s fees against an attorney for bad faith conduct).

Affirmed.

FORST, J., concurs.
KLINGENSMITH, J., concurs with opinion.

KLINGENSMITH, J., concurring.

I reluctantly concur in the majority opinion but write to address a
shortcoming in our jurisprudence, as highlighted by this case. During oral
argument, appellee’s counsel implored this court not to punish their client
for trial counsel’s improper argument by reversing the jury’s verdict. In
follow up, we asked counsel how we should deal with issues of repeated
attorney misconduct other than by reversing cases where the boundaries
of permissible argument set forth by this and other courts have been

12
flouted. The response we received was essentially, “I don’t know.”
Succinctly put, neither do we.

We have previously said that appellate courts should not reverse cases
solely because of attorney misconduct where both sides engage in
unprofessional behavior. See Lemoine v. Cooney, 514 So. 2d 391, 393 (Fla.
4th DCA 1987) (“Where each party’s attorney engages in vituperation, it
would be unfair to the litigant who won in the trial court to lose on appeal
merely because his lawyer likewise participated in less than gentlemanly
conduct.”). It is the trial court’s responsibility to both monitor and deter
improper conduct, and the trial court must fulfill this responsibility when
the conduct occurs. See Bellsouth Human Res. Admin., Inc. v. Colatarci,
641 So. 2d 427, 430 (Fla. 4th DCA 1994) (“It is the trial court’s
responsibility, when objections are made to improper argument, to sustain
the objections and let counsel know that these tactics will not be
tolerated.”). Because we are constrained by stare decisis, we are often
limited to merely chastising offenders when the misconduct did not result
in an unfair trial. See Jeep Corp. v. Walker, 528 So. 2d 1203, 1204 (Fla.
4th DCA 1988) (“[I]t is not for us to substitute our judgment for that of the
trial judge . . . unless we are convinced that a fair trial did not result.”). If
trial judges fail to vigilantly enforce standards of professional conduct, and
if appellate courts are constrained in how we can thereafter respond, the
result is untenable. Trials will simply become nothing more than games
of chance where the goal is to get a favorable outcome at any cost, then
roll the dice betting the appeals court will affirm. This court has discussed
the problem since the late 1970s. See Lemoine, 514 So. 2d at 393; Nelson
v. Reliance Ins. Co., 368 So. 2d 361, 361 (Fla. 4th DCA 1978) (“We are
distressed at an increasing tendency, by the trial bar, to permit the noble
art of trial practice to degenerate into a free-for-all.”); Jeep Corp., 528 So.
2d at 1204. The fact that we are still discussing it as an ongoing issue,
after over forty years, is remarkable.

Clearly, whatever we have previously written on this subject has failed
to take hold. For that reason, I believe the time has come to take a different
course in the future—one that includes our court taking a more active role
in how we deal with the misconduct of trial attorneys. This might include
reconsidering our prior holdings that advised against reversing cases
based on attorney misconduct, especially in cases such as this where the
improper conduct was unilateral. Cf. Lemoine, 514 So. 2d at 393. Today
we hold that the results obtained by appellee at trial did not indicate the
offensive comments had any effect on the jury. But if Special v. West Boca
Medical Center, 160 So. 3d 1251 (Fla. 2014), stands for anything, it is the
notion that the burden lies with the appellee, who potentially benefitted
from the grossly improper arguments, to prove that the comments had no

13
effect on the jury. Id. at 1256. That is a difficult standard to apply,
especially in cases where the benefit to the appellee cannot be precisely
measured by the amount of compensatory or punitive damages awarded.
In some cases, the benefit might simply be the jury’s decision to award
punitive damages in the first place—at any amount. But that is an issue
we leave for another day.

In my opinion, arguments like the veiled reference made here
comparing appellants to Nazis are so outrageous that, going forward, we
should hold that they constitute grounds for reversal in all but a very few
circumstances because “neither rebuke nor retraction may entirely destroy
their sinister influence.” Norman v. Gloria Farms, Inc., 668 So. 2d 1016,
1023 (Fla. 4th DCA 1996) (quoting Baggett v. Davis, 169 So. 372, 379
(1936)); see also Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1027
(Fla. 2000) (stating that a litigant must either object at trial or make a
motion for new trial to preserve an argument that opposing counsel’s
comments amount to fundamental error). I have no doubt this court would
so hold and properly reverse had counsel’s argument instead used an
analogy comparing the appellants and their actions to the Ku Klux Klan,
lynching, or anything else designed solely to evoke the strongest negative
visceral reaction from the jury.

It is unfortunate that innocent litigants may ultimately suffer a reversal
of their cases through no direct fault of their own, but this should not
serve as an impediment to our action. Litigants suffer when appellate
courts reverse cases for a variety of reasons, including improper argument.
They also suffer when appellate courts affirm outright dismissals of cases
caused by clear attorney malpractice. See Spaziano v. Price, 763 So. 2d
1047, 1048 (Fla. 4th DCA 1999) (discussing the Third District’s affirmance
of a case in which a law firm failed to file a cause of action before the
statute of limitations, thus causing the firm to be sued for legal
malpractice). Although a reversal deprives the litigant of the result
achieved at trial, the effect of that reversal is far less draconian than a
dismissal because it leads to a new trial—one where the desired results
can be achieved under much fairer circumstances. By declining to reverse
cases solely because of attorney misconduct, attorneys who flagrantly
ignore the rules are permitted to benefit from their malfeasance. When
there is no real sanction for such behavior and thus no effective
deterrence, something must change. But make no mistake; the primary
responsibility for curbing misconduct lies first and foremost with the trial
judge. If trial judges took greater care to ensure that such actions are not
tolerated, there would be no need for our court to be involved.

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 There is an old saying that “there is no education in the second kick of
a mule.” Our opinion in this case provides the fifth—and hopefully final—
kick needed to emphatically deliver the majority’s message to this trial
counsel specifically, and to trial judges more generally. We have made our
expectations clear, and our tolerance should not be expected in the future.

* * *

Not final until disposition of timely filed motion for rehearing.

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