HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant,
R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case Nos.
08-80000 (19) and 08-CV-026337 (19).
Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort
Lauderdale, and Bard D. Rockenbach and Adam Richardson of
Burlington & Rockenbach, P.A., West Palm Beach, for
T. Burnette of Jones Day, Atlanta, GA, and Karen H. Curtis of
Clarke Silverglate, P.A., Miami, for appellees.
ON MOTION FOR REHEARING AND REHEARING EN
the motion for rehearing and rehearing en banc, but withdraw
our prior opinion and substitute the following in its place.
right to ask potential jurors questions during voir dire
about bias remains one of the most important, and often
overlooked, protections against jury discrimination."
Tania Tetlow, Granting Prosecutors Constitutional Rights to
Combat Discrimination, 14 U. Pa. J. Const. L. 1117, 1143
(2012). That protection is challenged in this appeal from an
order granting a new trial.
plaintiff argues the trial court erred in granting a new
trial based on the court's failure to allow the
defendants to question several members of the jury venire
before excusing them for bias. She also asks us to limit any
new trial to the issue of entitlement to punitive damages in
the event that we affirm the order granting a new trial. We
disagree on both points and affirm.
start of jury selection, the court gave the venire an
abbreviated statement of the case informing them that the
plaintiff claimed the decedent's death was caused by
smoking cigarettes, and that the tobacco defendants denied
the claim. During voir dire, plaintiff's counsel asked:
And so we all come in with certain feelings about cigarettes,
certain feelings about smokers; and what I would like to know
is, without hearing anything more than that, is there anybody
here -- and I want to go in groups again -- but by a show of
hands, anybody who thinks that a person who smokes cigarettes
for a long period of time, say 40 or 50 years, gets a disease
and ultimately dies from that disease, is there anybody that
thinks that their family should not be allowed to bring a
lawsuit against the tobacco companies?
jurors raised their hands. Plaintiff's counsel then asked
each juror individually if their belief was strongly held,
and if they had a reasonable doubt whether they could set
that feeling aside. Before the trial court recessed for
lunch, defense counsel asked the court to "admonish the
panel if they have a strongly held view about some of these
issues, to raise their hand so that we can address it in
private, as opposed to sharing it with the whole
group[.]" The court took the matter under advisement,
but later overruled the objection.
jury selection resumed, and before defense counsel had an
opportunity to question the jurors, the following transpired.
The Court: Counsel, I don't know where
we go from here, to be candid with you. The state of the law
in Florida as I understand it, and you can correct me, I
don't see how you rehabilitate certain jurors.
And I know we're trying to get a panel. We have a big
panel here. I think, and I know the question was objected to.
But I think it's a fairly innocuous question when the
juror is asked if they believe a smoker or a family of a
deceased smoker has a right to sue, and it's followed up
by is that a strongly held belief, and is that something you
can set aside.
I don't see how you can rehabilitate those jurors. The
flip side of the coin would be if the defense comes up and
their question, you know, is that same type of question; how
many of you believe that if a tobacco company is involved
selling cigarettes and somebody has a tobacco-related
disease, you know, alleged from smoking, that it's just a
question of how much you would ask for damages.
I think the other side of the coin is fair game as well, and
they would be excused automatically. I just don't know
how you can rehabilitate jurors who answer that question. And
I know the defense hasn't even asked one question of the
jury. But I don't know how you -- assuming that you ask
them if there's a reasonable doubt in the mind of the
Court, they're going to be excused. I don't see how
you can rehabilitate those jurors. It would be my thought
just to excuse them.
Defense Counsel: Well, Your Honor, first
off, I think you're right about your understanding of
rehabilitation and the availability of it under Florida law.
Our position is pretty simple. We just want a shot to examine
the whole panel. It's not that we think Mr. Hammer may
have succeeded in making a cause record for this morning
could be rehabilitated. But it's just the interplay of
all the different individuals is something that helps our
examination as a whole.
I think you're right, Your Honor, and there were
certainly some people this morning who articulated views that
cannot be rehabilitated. Our preference is to leave the whole
panel intact so that we get a chance at least to talk to the
whole venire, with the acknowledgment that obviously some
people have expressed views already for which a record has
been made. They probably do have a bias that would result in
Plaintiff's Counsel: If it please the
Court, Your Honor, I understand defense counsel's
request, and I don't disagree with his requesting the
right to discuss this with the panel as a whole. I understand
that. I'm only concerned with the Court's interest in
getting the jury.
As far as time is concerned, and the likelihood of having
enough jurors in this panel, if we can't get a jury out
of this panel, is there any way where we can get another
handful of jurors to back this group up?
Because by my counts, we're treading on somewhere under
50 remaining jurors right now, based on those that
volunteered in a way that is likely to be subject to cause.
And then with 18 challenges, assuming that some more folks
will reveal themselves, I'm wondering if, Your Honor,
should we be planning on getting more jurors? I don't
know what Your Honor's pleasure is in that regard.
. . . .
The Court: So anyway: So it's not -- I
haven't tried one of these in a while, but I guess
it's not unexpected that you're going to have issues
with the selection process. So, you know, we'll do as
much as we can. I'm not trying to make you speed up, Mr.
Hammer, on your questioning, but my thought also is that I
can't get this courtroom every day. And, you know, if we
come back, and having jurors questioned in my courtroom, I
mean, we're maxed out at about 46 to 50 jurors, depending
how many we put in there.
Plaintiff's Counsel: Judge, what I was
thinking, because of that -- and I agree with the Court.
Under Florida law, there's quite a few jurors that
indicated they couldn't be fair. Couldn't set that
I think out of abundance of caution, you ought to excuse them
for cause. Because it will move things along a lot faster.
Because they won't be answering questions, won't be
wasting time talking to them. Because we know they're
going to be excused anyway.
So I would request this Court to strike those individuals for
cause that we feel have risen to that level, and I counted
roughly about 30 people. And I would be happy to go through
those real quick, and I think it's fair to strike those.
Then that way I think I can move a lot quicker through the
remaining panel. Because otherwise I'm going to be
spending time talking to all them.
The Court: Why?
Plaintiff's Counsel: Because inevitably
they're going to answer a question. And I can't just
ignore them. And they're going to add to the
conversation. And, you know, defense has already raised the
point that we don't want to poison the panel as a whole.
I don't want to risk that, because we are close to
getting rid of an awful lot of people.
So rather than take the entire panel --
The Court: How much more questioning do you
have? I know you only asked one -- very few -- the
questioning so far has been very, very limited.
Plaintiff's Counsel: Judge, I've
gone a little over an hour. I understand that. And I asked a
series of questions. I anticipate having a couple more hours
to go. But, you know, I think if we eliminate some of the
people, it's going to streamline my voir dire quite a
Defense Counsel: Your Honor, just one
observation. I don't think there's any way we finish