# Third District Court of Appeal

State of Florida

Opinion filed A pril 25, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1994

Lower Tribunal No. 10-45478

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### R.J. Reynolds Tobacco Company,

Appellant,

vs.



### Patsy Elaine Davis, as Personal Representative of the Estate of

Booker Terry Davis, deceased

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William

Thomas

, Judge.

Jones Day, Donald B. Ayer (Washington, DC), and Charles R.A. Morse

(New York, NY); Carlton Fields Jorden Burt, P.A., Benjamine Reid, and Jeffrey

A. Cohen

, for appellant.

Freidin Brown and Philip Freidin; The Mills Firm, P.A., John S. Mills and

Courtney Brewer (Tallahassee); The Alvarez Law Firm and Alex Alvarez; David J.

Sales (Jupiter)

, for appellee.

Before EMAS, FERNANDEZ, and LUCK, JJ.

FERNANDEZ, J.R.J. Reynolds Tobacco Company appeals the trial court’s decision to grant a

new trial in the underlying wrongful death tobacco case. We find the trial court

abused its discretion in ordering a new trial. We thus reverse the trial court’s order

and remand the case for entry of judgment for R.J. Reynolds in accordance with

the jury’s verdict. In addition, we vacate the trial court’s show-cause order.

The plaintiff, Patsy Elaine Davis, is the personal representative of the estate

of her deceased husband, Booker Terry Davis. Davis sued R.J. Reynolds for

Booker’s wrongful death. Davis contended that Booker was a member of the class

certified in Engle v. Liggett Group, Inc.

, 945 So. 2d 1246 (Fla. 2006), alleging that

Booker contracted lung cancer in 1994, as a result of his addiction to cigarettes

manufactured by R.J. Reynolds, and that he consequently died in 1997.

At trial, Davis had to prove that Booker was a member of the Engle class; he

was required to show that he was addicted to smoking and that this was a legal

cause of his injuries. In order to prove this, Davis provided her own testimony, as

well as the deposition testimony of an addiction expert. R.J. Reynolds countered

this testimony by calling its own addiction expert, Dr. Debra Barnett, to testify that

Booker was not addicted to cigarettes.

Davis claims that at trial, during an examination of Dr. Barnett, R.J.

Reynolds’s counsel referred to the outcome of another tobacco case, Fanali v. R.J.

Reynolds Tobacco Co.

, No. 50 2008 CA 000800 (Fla. 15th Cir. Ct. 2015), which

2prejudicially affected the jury's verdict. During cross-examination, Davis’s counsel

questioned Dr. Barnett’s credibility regarding her opinion that Booker was not

addicted to nicotine because, in Fanali

, Dr. Barnett testified that a smoker who

smoked five packs of cigarettes per day was not addicted. This exchange took

place:

Q: And in all those cases [in which you previously testified], those are

cases where you found that there was no addiction; correct?

A: Yes, that is true.

... Q: Okay. And all of them

— well, what’s the least amount of smoking

in any of those cases?

A: I’m not sure if I could accurately recall over all of these years,

but

— Q: Okay.

A:

— I

— I believe that in one of the cases perhaps half a pack per day.

... Q: Okay. What’s the most you have?

[Reynolds’ Counsel]: Objection, Your Honor, relevance.

The Court: Overruled.

A: The most amount? Five packs per day.

Q. Five packs a day, and you found that he wasn’t addicted?

A: That’s correct.

Q: Wow. Five packs a day is

– what is that, a hundred cigarettes a

day; am I right?

R.J. Reynolds then attempted on redirect to rehabilitate Dr. Barnett after Davis’s

counsel attacked her credibility. Thus, on its redirect examination of Dr. Barnett,

the following exchange took place:

Q: You

— you were asked questions about other cases including cases

in which you have analyzed smokers who smoked up to five packs a

day, do you remember that?

3A: That was the highest. I was asked what was the highest. That was

the highest.

Q: And, in fact, you told the jury that you actually, under a DSM

analysis using your forensic psychiatry, that you concluded that

smoker was not addicted; right?

A: That is correct.

Q: And you testified in the trial, a trial of that case, to that effect;

right?

A: That is correct.

Q: And the jury agreed with you in that?

[Plaintiff’s Counsel]: Judge.

The Court: Sustained.

[Plaintiff’s Counsel]: You know, I would like to make a motion.

Davis’s counsel objected, and the trial court sustained the objection. Thus, Dr.

Barnett never answered the question. Dr. Barnett was excused.

Davis then moved for a mistrial based on the question R.J. Reynolds asked

Dr. Barnett regarding his testimony in a previous, unrelated case, and based on the

acts of misconduct Davis alleges R.J. Reynolds’s counsel committed during trial.

The trial court reserved ruling on whether a new trial was warranted until after the

jury returned its verdict.

After the five-day trial, the jury returned a verdict that Booker’s lung cancer

and death was caused by his addiction to the nicotine in cigarettes. In answer to the

first question on the verdict form, "Was Booker Davis addicted to cigarettes

containing nicotine, and if so, was such addiction a legal cause of his lung cancer

and death?", the jury answered, “Yes.” However, the jury also found that smoking

R.J. Reynolds’s cigarettes was not the legal cause of Booker’s lung cancer and

4death. They answered, "No," to the second question on the verdict form, "Was

smoking cigarettes manufactured by R.J. Reynolds a legal cause of Mr. Davis's

lung cancer and death?" The trial court granted Davis’s motion for a mistrial due to

R.J. Reynolds’s “premeditated, willful, and egregious” conduct “designed to

influence the jury’s perception on a core issue presented in the case.” The trial

court also entered an order to show cause and ordered R.J. Reynolds to

demonstrate why it should not impose sanctions on it. The trial court’s “Order

Granting Motion for Mistrial and Order to Show Cause” was issued after the jury

was discharged. R.J. Reynolds now appeals, as the trial court’s order was

effectively an order granting a new trial and is thus appealable. State v. Smith

, 206

So. 3d 92, 93 (Fla. 3d DCA 2016).

When a trial court grants a motion for a new trial, the court must specify its

reasons. Wackenhut Corp. v. Canty

, 359 So. 2d 430, 435 (Fla. 1978); Rule

1.530(f), Fla. R. Civ. P. In the case before us, the trial court did just that; he

complied with rule 1.530(f) when he listed in the order under review the question

asked to Dr. Barnett about the Fanali case as the reason for which he was granting

the motion for a new trial. He specifically stated in the order that the “highly

prejudicial and inflammatory” information introduced by R.J. Reynolds’s counsel,

“which revealed to the jury the existence of a prior favorable defense verdict,

regarding the issue of nicotine addiction, which was reached in a different tobacco

5case” was so prejudicial that “it had a sweeping impact on the jury and affected the

trial’s outcome.” In addition, the court cited to established Florida case law for the

proposition that it is improper for “counsel in a civil case to call to the jury’s

attention the results of a former trial involving the same type of case.” 1 The trial

court went on to state, “[T]his Court finds that counsel’s intentional references and

deliberate comments revealing the impressions of another jury on cigarette

consumption and nicotine addiction was highly prejudicial to the Plaintiff.” 2 The

trial court’s reason for granting a new trial with regard to this specific ground was

1 See, e.g.

, Allison Transmission, Inc. v. J.R. Sailing, Inc.

, 926 So. 2d 404, 407

(Fla. 2d DCA 2006); Carroll v. Dodsworth

, 565 So. 2d 346 (Fla. 1st DCA 1990);

Wright & Ford Millworks, Inc. v. Long

, 412 So. 2d 892 (Fla. 5th DCA 1982).

2 The trial judge also stated in his order: “In addition, although these remarks alone

are sufficient to warrant a new trial, the Court will not ignore other behaviors, on

the part of the defense, whose cumulative effect denied Plaintiff the right to a fair

trial. This includes statements made by the defense during opening and closing

arguments.” He then did not go on to identify the specific instances of such

misconduct by proper reference to the record. As RJ Reynolds correctly contends,

the “Tipsy Coachman” doctrine cannot be used to affirm the trial court’s order

granting the new trial, as it is not applicable in an appeal from an order granting a

new trial. Jones v. Atkinson

, 974 So. 2d 573, 577 (Fla. 1st DCA 2008). Our

independent review of the record does not support a finding of egregious

misconduct on the part of RJ Reynolds’s counsel that warrants overturning the

jury’s verdict and conducting a new trial on the alternate basis articulated by the

trial judge; i.e., cumulative effect of the conduct of RJ Reynolds’s counsel. And it

would appear that the trial court did not see such instances of misconduct by RJ

Reynolds’s counsel during the trial as egregious either, otherwise he surely would

have intervened. See Rodriguez v. State

, 210 So. 3d 750, 757 (Fla. 5th DCA

2017); Borden v. Young

, 479 So. 2d 850, 852 (Fla. 3d DCA 1985).

6very clearly explained in the order. Thus, compliance with rule 1.530(f) was

satisfied and is not an issue here.

However, we find that the trial court abused its discretion in ordering a new

trial based on R.J. Reynolds’s counsel’s reference to the Fanali verdict. It is clear

from the jury’s verdict that they disregarded the expert witness testimony on

addiction, so there is no reasonable probability that the objectionable question was

so prejudicial or that it had any effect on the jury’s verdict. The verdict form first

asked, “Was Booker Davis addicted to cigarettes containing nicotine, and if so,

was such addiction a legal cause of his lung cancer and death?” The jury replied,

“Yes.” The second question on the verdict form asked, “Was smoking cigarettes

manufactured by Reynolds a legal cause of Mr. Davis’s lung cancer and death?”

The jury rendered a verdict for R.J. Reynolds when they replied, “No,” to this

question. As such, it is clear Dr. Barnett’s testimony and R.J. Reynolds’s counsel’s

question to her did not have any effect on the jury’s verdict, as her testimony and

R.J. Reynolds’s question to her was not related in any way to the issue of the brand

of cigarettes that caused Booker’s lung cancer and death. The trial court thus

abused its discretion in granting a new trial because the record does not support the

trial court’s reason for granting a new trial. See Philip Morris USA, Inc., v.

Danielson

, 224 So. 3d 291 (Fla. 1st DCA 2017).

7Accordingly, we reverse the trial court’s order granting a new trial and

remand the case to the trial court with instructions to enter judgment for R.J.

Reynolds in accordance with the jury’s verdict. Because Davis does not have to

prepare for a new trial, we vacate the show-cause order.

Reversed and remanded with instructions.

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