final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Harvey L.
Jay, III, Judge.
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
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.
Thomas, CJ, and Bilbrey, J, concur
Winsor, J., dissenting.
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.
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
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
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 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]."
for both sides offered their views on how the court should
proceed. Both sides agreed the court could not give a second
Allen charge. 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.
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 ...