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Philip Morris USA Inc. v. Brown

Florida Court of Appeals, First District

April 18, 2018

Philip Morris USA Inc., Appellant/Cross-Appellee,
Mary Brown, as personal representative of the Estate of Rayfield Brown, Appellee/Cross-Appellant.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Harvey L. Jay, III, Judge.

          Amir C. Tayrani of Gibson, Dunn & Crutcher LLP, Washington, DC; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC; Hassia Diolombi and Kenneth J. Reilly of Shook, Hardy & Bacon LLP, Miami; and W. Edwards Muñiz of Shook, Hardy & Bacon LLP, Tampa, for Appellant/Cross-Appellee.

          John S. Mills and Courtney Brewer of The Mills Firm, PA, Tallahassee; and John S. Kalil of Law Offices of John S. Kalil, P.A., Jacksonville, for Appellee/Cross-Appellant.

          PER CURIAM.


          B.L. Thomas, CJ, and Bilbrey, J, concur

          Winsor, J., dissenting.

         The main question in this case is what happens when a deadlocked jury is instructed to reach whatever partial verdict it can-and to do so without any further deliberations. On the unusual facts of this case, I would hold that such an instruction leaves the jury incapable of producing a valid verdict. From the time jury deliberations begin until the time the jury reaches its final decision, jurors must be free to weigh and consider arguments and evidence, to consider other jurors' points of view, to attempt to persuade fellow jurors, to argue and debate-in other words, the jury must be free to deliberate until the very end. Because this jury did not have that opportunity, we should reverse and remand for a new trial.

         Mary Brown filed a wrongful-death action against Phillip Morris USA, Inc., alleging that her husband died from smoking-related illnesses. She alleged strict liability, negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment. The litigation lasted years: One trial was continued during jury selection, and another ended in a mistrial after this court granted a writ of prohibition, see Philip Morris USA Inc. v. Brown, 96 So.3d 468 (Fla. 1st DCA 2012). A third trial ended with a deadlocked jury.

         In the next trial-the trial at issue here-the jury's verdict form asked (among other things) whether Philip Morris's actions legally caused the husband's death, the amount of any compensatory damages, the relative percentages of fault, and whether punitive damages were warranted. After deliberating for approximately four or five hours, the jury sent out a note saying it was "stuck on the percentage" and asking "[w]hat are our options?"

         After conferring with counsel, the court told the jury to follow instructions already given. The jury continued deliberating for some two additional hours before sending out another note. This one explained that jurors "have not been able to agree on question #4 [regarding comparative fault] and therefore we cannot go any further." After more discussion with counsel, the court delivered a standard Allen[1] charge, asking the jury to continue its deliberations. But after roughly an hour more, the jury sent out another note: "Now hung on question #2 [regarding fraudulent concealment]. Some have change[d] their mind. It started out on question #4. Some say yes, and some no. Now need white out for question #2. Yesterday it was yes now today it hung [sic]."

         Lawyers for both sides offered their views on how the court should proceed. Both sides agreed the court could not give a second Allen charge.[2] Philip Morris argued the court should grant a mistrial since the jury could not reach consensus after its Allen charge. Mrs. Brown, though, argued that the court should accept a partial verdict on the issues the jury did decide. Ultimately, the court brought the jury back and told them to return to the jury room, to white out verdict-form responses on which the jury was no longer unanimous, and to fill in answers where there was unanimity. The court specifically told the jurors to not deliberate any further in doing so.

         After about six minutes in the jury room, the jury returned with a partial verdict, answering two of the verdict form's six questions. The jury agreed that the husband was a member of the Engle class, see Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006), and that Philip Morris's conspiracy to conceal was a legal cause of the husband's death. Because the jury found liability on one intentional-tort theory, its inability to provide verdicts on other theories or on comparative-fault percentages was not critical, see § 768.81(4), Fla. Stat. (2013); see also Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294, 304 (Fla. 2017) ("[T]he comparative fault statute does not apply to Engle progeny cases in which the ...

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