Third District Court of Appeal
State of Florida
Opinion filed November 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1584
Lower Tribunal No. 07-45267
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Philip Morris USA Inc.,
Appellant,
vs.
Odaima Garcia, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael
(Washington, DC); Shook, Hardy & Bacon LLP, and Scott A. Chesin (New
York, NY), Frank Cruz-Alvarez and Michael G. Polatsek, for appellant.
Parafinczuk Wolf, and Austin Carr (Pembroke Pines); Menendez Trial
Lawyers, and Jose M. Menendez; Burlington & Rockenbach, P.A., and Bard
D. Rockenbach and Jeffrey V. Mansell (West Palm Beach), for appellee.
Before EMAS, SCALES and HENDON, JJ.
EMAS, J.
Following a trial in this Engle 1-progeny tobacco case, the jury returned
a verdict in favor of Odaima Garcia (personal representative of the Estate of
Juan Rodriguez and plaintiff below) and against Philip Morris USA Inc.
(defendant below). Plaintiff had sued Philip Morris for negligence, strict
liability, conspiracy and fraud, together with a claim for punitive damages.
At the conclusion of trial, the jury found in favor of plaintiff on the strict
liability and negligence counts (the jury found in favor of Philip Morris on the
conspiracy and fraud claims) and awarded $10,000 in economic damages
and $5.5 million in compensatory damages.2 The jury apportioned 40% fault
to Mr. Rodriguez and 60% to Philip Morris. 3 The jury also found entitlement
to punitive damages against Philip Morris.
Following this phase one verdict, the jury then heard testimony on the
issue of the amount of punitive damages to be awarded, after which the trial
court delivered additional jury instructions. However, the jury could not reach
a unanimous verdict on the amount of punitive damages to be awarded
against Philip Morris, resulting in a mistrial on that issue.
1
Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
2
In closing argument, plaintiff’s counsel suggested the jury award $10 million
in compensatory damages.
3
In closing argument, plaintiff’s counsel suggested the jury apportion 25%
fault to Mr. Rodriguez and 75% fault to Philip Morris.
2
Thereafter, post-verdict motions were filed, including Philip Morris’
motion for new trial, based on allegedly improper and inflammatory
comments made by plaintiff’s counsel during closing arguments and by
plaintiff during her testimony which, Philip Morris contended, resulted in the
denial of a fair trial. The trial court denied the motion for a new trial on liability
and compensatory damages. 4
Following our review of the record in this three-week trial, we affirm the
denial of Philip Morris’ motion for new trial on liability and compensatory
damages, finding no abuse of discretion in the trial court’s denial of the
motion for new trial, which was based on its determination that the conduct
complained of, if improper, was not “so highly prejudicial and inflammatory
that it denied the opposing party its right to a fair trial.” Philip Morris USA,
Inc. v. Ledoux, 230 So. 3d 530, 538 (Fla. 3d DCA 2017) (citation omitted);
Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA 2015)
(considering certain aspects of the jury’s verdict in assessing whether the
trial court abused its discretion in denying a motion for new trial based on
4
In addition to seeking a new trial on liability and compensatory damages,
Philip Morris sought a retrial on both entitlement to, and amount of, punitive
damages, asserting the issues were inextricably intertwined and should be
determined by a single jury. The trial court granted this relief, which the
plaintiff cross-appealed in this case. However, the cross-appeal was later
voluntarily dismissed, mooting the question of whether the trial court properly
granted a new trial on both entitlement to, and amount of, punitive damages.
3
improper closing arguments which defendant contended were so highly
prejudicial as to deny defendant a fair trial; affirming the trial court’s denial of
the motion for new trial and observing, inter alia, that the jury did not find
completely in favor of plaintiff, but found in favor of defendant on the
intentional tort claims, and further found plaintiff was 60% at fault,
substantially reducing the $12.5 million verdict to an award of only $5
million); R.J. Reynolds Tobacco Co. v. Schleider, 273 So. 3d 63, 71 (Fla. 3d
DCA 2018) (affirming the trial court’s denial of the motion for new trial and
noting that the jury “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 Mr. 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.”)
Affirmed.
4