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Irimi v. R.J. Reynolds Tobacco Co.

Florida Court of Appeals, Fourth District

January 10, 2018

HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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 appellant.

          Jason 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 BANC

          MAY, J.

         We deny the motion for rehearing and rehearing en banc, but withdraw our prior opinion and substitute the following in its place.

         "The 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.

         The 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.

         At the 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?

         Several 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.

         When 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 exclusion.
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 aside.
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 bit.
Defense Counsel: Your Honor, just one observation. I don't think there's any way we finish ...

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