# Third District Court of Appeal State of Florida Opinion filed December 26, 2018. Not final until disposition of timely filed motion for rehearin g.

________________ No. 3D15-1634 Lower Tribunal No. 13-6984

________________ 

### R.J. Reynolds Tobacco Company, Appellant/Cross-Appellee,

vs. 

### Diane Schleider, etc., Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel, Judge. King & Spalding LLP, and William L. Durham II, Chad A. Peterso n, Val Leppert (Atlanta, Georgia), and Scott M. Edson and Ashley C. Pa rrish (Washington, DC); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Doug las J. Chumbley, Jeffrey A. Cohen, and Olga M. Vieira , for appellant/cross-appellee. Alex Alvarez; Gary M. Paige (Davie, Florida); The Mills Firm, P.A., and John S. Mills and Courtney Brewer (Tallahassee), for appellee/cross- appellant.

Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ. LOGUE, J.2 R.J. Reynolds Tobacco Company appeals the final judgment entere d in favor of Diane Schleider, the wife and personal representative of the Estate of Andrew Schleider, and Suzanne LeMehaute, their daughter. We affirm and write only to address R.J. Reynolds’ challenge to the closing arguments and t he size of the damage awards. Background Andrew Schleider, a cigarette smoker, died from lung cancer and chronic obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in her capacity as personal representative of his estate alleging she and their daughter were statutory survivors within the meaning of Florida’s Wrongf ul Death Act. The complaint alleged the father was a member of the class created in Engle v. Liggett Group., Inc., 945 So. 2d 1246 (Fla. 2006). Under Engle, if the plaintiff qualifies as a member of the class, certain facts are found against the defe ndant tobacco company as a matter of res judicata without the need of further proof. 1

1 The findings include: (i) “that smoking cigarettes causes” certain named diseases inc luding COPD [chronic obstructive pulmonary disease] and lung cancer; (ii) “ that nicotine in cigarettes is addictive;” (iii) “that the [Engle] defendants pl aced cigarettes on the market that were defective and unreasonably dangerous;” (iv ) “that the [Engle] defendants concealed or omitted material information no t otherwise known or available knowing that the material was false or misle ading or failed to disclose a material fact concerning the health effects or ad dictive nature of smoking cigarettes or both;” (v) “that the [Engle] defendants a greed to conceal or omit information regarding the health effects of cigarettes or their addictive3 One of the prerequisites for Engle class membership is that the decedent’s disease manifested on or before November 21, 1996. Id. at 1275. The issue of when the father’s disease manifested was one of the main issues at t rial and the jury’s finding in favor of the wife and daughter is challenged on appe al, but we affirm that point without discussion. The trial spanned nearly three weeks. In addition to the eviden ce presented at trial, the jury was instructed on specific findings it must app ly if, as occurred, Schleider was found to be a member of the Engle class. The inst ructions read to the jury were: 1. Smoking cigarettes causes lung cancer. 2. Cigarettes that contain nicotine are addictive. 3. Defendant, R.J. Reynolds Tobacco Company, placed cigarettes on the market that were defective and unreasonably dangerous. 4. Defendant, R.J. Reynolds Tobacco Company, concealed or omit ted material information not otherwise known or available knowing t hat the material was false and misleading or failed to disclose a mater ial fact

nature with the intention that smokers and the public would rel y on this information to their detriment;” (vi) “that all of the [Engle] defendants sold or supplied cigarettes that were defective;” (vii) “that all of th e [Engle] defendants sold or supplied cigarettes that, at the time of sal e or supply, did not conform to representations of fact made by said defendants; ” and (viii) “that all of the [Engle] defendants were negligent.” Id. at 127 6–77. Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla . 2013) (footnote omitted).4 concerning the health effects or addictive nature of smoking ci garettes or both. 5. Defendant, R.J. Reynolds Tobacco Company, entered into an agreement with other companies and industry organizations to co nceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment. Those companies i nclude Philip Morris, USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Brown & Williamson Tobacco Corporation, individually and as a successor by merger to the American Tobacco Company, and Ligget t Group, Inc. The industry organizations are the Council for Tob acco Research USA, Inc., and the Tobacco Institute, Inc. Defendant R.J. Reynolds Tobacco Company was negligent. These findings may not be denied or questioned and they may carry – t hey must carry the same weight they would have if you had determine d them yourselves.

. . . . The findings may not be considered in any way when determining whether punitive damages may be warranted. You must make your determination regarding whether punitive may be warranted based only upon the factual evidence presented to you in the trial. (Emphasis added). These instructions specified that R.J. Reynol ds intentionally concealed facts regarding the dangers and addictive qualities o f cigarettes. Evidence was presented throughout the trial indicating the toba cco industry spent approximately $250 billion dollars between 1940 and 2005 to promote and advertise cigarettes. The jury also heard evidence regarding th e tobacco industry’s lobbying efforts and attempts to conceal the hazards of smoking . In addition, the5 jury heard from R.J. Reynolds’ own corporate representative tha t 400,000 to 480,000 people were dying each year from smoking cigarettes. 2 During the closing arguments addressing entitlement to punitive damages, the Plaintiffs’ attorney made various arguments dramatizing the num ber of deaths caused by cigarettes and the size of the sums spent to promote smoking and conceal its dangers. In particular, he noted that 450,000 deaths equate to three plane crashes every day for a year. He also asked the jury to compare the at tempts of Mr. Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion spent by the tobacco industry “with all their power, all their money” to encourage people like the plaintiff to continue smoking. Regarding the damages awards, the jury heard testimony from the wife regarding her husband’s illness, the difficulties they endured, and the impact his suffering and death had upon their lives and future plans. The jury heard from the wife how she and her husband had been married for thirty years and how his death came shortly after commencing their retirement in the Florida K eys. The jury heard the daughter was twenty-two years old when her f ather died. The father had been a stay-at-home parent who raised her. She f ollowed her parents to the Keys, first to live with them, and then to live near the m. She saw her father

2 The deposition testimony of James Figlar, PhD, where he appear ed as corporate representative for R.J. Reynolds in another case, was read to t he jury in this case. The jury also viewed Dr. Figlar’s videotaped deposition taken i n this case.6 continually and provided care for him up to his death. At her w edding, she refused to have anyone walk her down the aisle in her father’s absence. In closing argument, Plaintiffs’ counsel requested an award of non-economic damages for loss of companionship and protection and mental pai n and suffering in the amounts of $11 million to the wife and $7 million to the da ughter. Plaintiffs’ counsel informed the jury that they “could go lower . . . or hi gher, it’s completely within [the jury’s] province to do.” On rebuttal, Plaintiff’s counsel again requested those amounts and argued that the figures represented, “fair co mpensation:” “if we could ask for more compensatory damages, I assure you that we w ould have.” R.J. Reynolds’s counsel immediately objected on the basis, stated in front of the jury, that “there is no limit on what they can ask for.” The jury ultimately awarded $15 million in non-economic damages to the wife and $6 million to the daughter, but refused to award the reques ted punitive damages. Regarding comparative negligence, Plaintiffs’ counsel requested the jury find R.J. Reynolds 87.5% at fault and the decedent 12.5% at fault. The ju ry instead found R.J. Reynolds 70% at fault and the decedent 30% at fault. Following the application of comparative fault, the final judgment awarded $10.5 million to the wife and $4.2 million to the daughter

. Among other motions, R.J. Reynolds moved for a new trial on dam ages and for remittitur. The motions were denied and this appeal followe d.7 Analysis R.J. Reynolds first argues that Plaintiffs’ counsel made improp er arguments during closing which warranted a new trial. We review the trial court’s denial of the motion for a new trial under an abuse of discretion standard. S ee Engle, 945 So. 2d at 1271 (“A trial court’s order granting or denying a motion fo r a new trial based on either objected-to or unobjected-to improper argument is review ed for abuse of discretion.”). “If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was so highly prejudicial and inflammator y that it denied the opposing party its right to a fair trial.” Id. (quotation omitt ed). While we do not condone the closing argument comments to which R.J. Reynolds objected, we conclude that the complained-of comments fall short of denying R.J. Reynolds its right to a fair trial. In reviewing t he comments, it is important to remember their context. This case was a nearly thr ee-week-long bifurcated Engle progeny case involving claims for intentional and non-intentional torts and prayers for non-economi c compensatory damages flowing from Plaintiffs’ loss of companionship and protection and pain and suffering, as well as for punitive damages. Arguments inappropriate in a simple negligence case may be appr opriate concerning record evidence of a parties’ intentional misconduct in the context of a8 claim for punitive damages. To give an obvious example, it is g enerally reversible error in a simple tort case seeking compensatory damages to ask a jury to “send a message” and punish or penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394 So. 2d 228, 229 (Fla. 5th DCA 1981). Here, however, the jury wa s instructed to consider whether R.J. Reynolds committed intentional misconduct , meaning “Reynolds had actual knowledge of the wrong of the conduct and the high probability that injury would result and, despite that knowledg e intentionally pursued that course of conduct,” in which event the jury was di rected to consider the propriety of punitive damages “as a punishment to Reynolds and as a deterrent to others.” R.J. Reynolds complains about the way Plaintiffs’ counsel in c losing noted that the 450,000 deaths from smoking annually equated to three airline crashes per day every day for a year. Although provocative and even somewh at inflammatory, the comparison itself was mild considered the magnitude of the number of deaths due to smoking (400,000 to 480,000 deaths annually) which was t estified to by R.J. Reynolds’ own corporate representative. The Surgeon General of the United States and the Connecticut Public Health Policy Institute have made th is same, or similar comparison. 3

3 See C. Everett Koop, Don’t Forget the Smokers, Washington Post , March 8, 1998, https://www.washingtonpost.com/archive/opinions/1998/03/08/dont -forget-thesmokers/3560fbed-880a-45ff-8669-110fd8b63509/?utm_term=.9c67a0f e6169;9 Among other things, this comparison was probative of whether R. J. Reynolds had actual knowledge of its wrongdoing “and the high probabilit y that injury would result.” In the context of this trial, it appears that Plaintif fs’ counsel was simply illustrating or contextualizing the number of smoking-related d eaths in an attempt to establish entitlement to punitive damages. Importantly, the jur y was repeatedly informed and instructed that they were to assess damages only f or the harm caused to the individual plaintiffs in this case. The jury ultimately did not award any punitive damages. Nevertheless, R.J. Reynolds contends this argument requires re versal under cases such as Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994). Blalock involved a lawsuit filed by the parents of a ch ild who had his thumb amputated while on the Pirates of the Caribbean ride at Walt Di sney World. The jury entered a verdict in favor of the plaintiff and Walt Disney Wor ld appealed. On appeal, the Fifth District noted that counsel for the plaintiff in closing “express[ed] his personal opinion that it was ‘outrageous’ for [Walt Disney World] to assert its defense of contributory negligence-despite evidence that the mi nor plaintiff and his

Joseph Cooney, et al., Examining Tobacco Use, Consequences and Policies in Connecticut: Smoke and Mirrors?, The Connecticut Public Health Policy Institute, April 28, 2010, at 6.10 father had been told to keep their arms inside the boat at all times and an admission that the boy’s hand had been in the water.” Id. at 1157-58. Moreover, in Blalock, the plaintiffs’ “[c]ounsel also expresse d his personal opinion on the credibility of several [Walt Disney World] witne sses, contrary to Rule 4-3.4(e) of the Florida Bar Rules Governing Professional Conduc t.” Id. at 1158. Beyond that, “other [Walt Disney World] witnesses were sarcasti cally referred to as ‘a good soldier’ or ‘this joker’ to derogate them, and [Walt Di sney World] was compared to ‘some nickel and dime carnival’ throwing ‘pixie dus t’ to delude the jurors.” Id. The court concluded that the closing argument in B lalock was “pervaded with inflammatory comments and the personal opinion of counsel. ” Id. at 1157. The comments in Blalock were unconnected to the evidence. They were not made to place the gravity of certain evidence in context, but rather, a mounted to an expression of personal opinion in violation of the rules govern ing professional responsibility. The comments also violated well-settled black letter law by inviting the jury to consider matters outside of the evidence based on t he denigration of witnesses. 4

4 We also note that in Blalock, the plaintiff’s expert began tel ling the jury of Walt Disney World’s post-accident remedial measures, apparently unaw are of the court’s in limine order precluding same. Blalock, 640 So. 2d at 1158. T he court also considered the impact of the attorney’s conduct during closing in light of the $275,000 future medical expenses award for which “[t]here was n o evidentiary basis . . . and had not even been sought in the closing argument.” Id . at 1159.11 Other cases cited by the R.J. Reynolds are equally distinguish able. For example, in DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 19 97), the criminal defendant was accused of pointing a laser-sighted firearm at tw o individuals. The Fourth District concluded there were several instances of prose cutorial misconduct warranting reversal. The misconduct included: (1) “the prosecut ing attorney . . . suggesting or inferring on cross-examination . . . that Appella nt was a person with a temper which perhaps was so bad that it led him to hitting his own sister in the head with a baseball bat,” even though any such evidence was inadmis sible; (2) the prosecutor made a golden rule argument during closing, by askin g the jurors to consider how terrifying it would have been for any given juror to have had the gun at issue pointed at his or her chest by the defendant; and (3) the prosecutor impermissibly made a comparison in closing between the defendan t’s case and the O.J. Simpson case. Id. at 601. The O.J. Simpson “reference, cou pled with the reference to [the defendant] as a stalker, possessive ex-boyfri end who disapproved of his ex-girlfriend’s friends, simply crossed the line of prop er vigorous and diligent advocacy and violated the rule against inflammatory argument.” Id. Notably, the court specifically stated that “the prosecutor’s reference to the O.J. Simpson [case], standing alone, may not have been sufficie nt to reach the very heart of [the defendant’s] criminal trial and may not have rise n to the level of fundamental error; however its contribution to the cumulative e ffect of the totality12 of the misconduct reached far beyond that which the right to a fair criminal trial allows.” Id. Defreitas is therefore distinguishable because it involves a cumulative impact and level of attorney misconduct which is not present in the case before us. R.J. Reynolds also contends reversal is warranted because the P laintiffs’ counsel compared the efforts of the plaintiff to quit smoking w ith “all their power, all their money” (referring to R.J. Reynolds and other tobacco companies) spent to encourage individuals like Mr. Schleider to keep smoking. After the parties went to sidebar and the Plaintiffs’ counsel explained the comment, the court allowed him to rephrase before the jury. The Plaintiffs’ counsel then proceede d to remind the jury of the testimony regarding the amount of $250 billion dollars s pent between 1940 and 2005 on cigarette advertising and promotion. Counsel furthe r clarified the “power” comment by reminding the jury of the evidence presented regarding the lobbying efforts of the tobacco companies to influence Congress . R.J. Reynolds did not object to the explanation made by the Plaintiffs’ counsel. When these comments are placed in the unique context of the evi dence presented at this trial, the comments related to “wealth” and “ power” do not merit reversal. In this regard, Samuels v. Torres, 29 So. 3d 1193 (Fl a. 5th DCA 2010), relied upon by R.J. Reynolds, is not comparable. Samuels was in jured in an automobile accident caused by Torres and filed suit against him . The first trial resulted in a mistrial due to improper comments of Torres’ defe nse counsel13 suggesting that Torres could not afford to pay a substantial aw ard. During opening statements in the second trial, the defense attorney gave “a li ttle bit of background on Mr. Torres” which amounted to telling the jury of Mr. Torres ’ work as a truck driver and the meager nature of his earnings. Id. at 1195-96. The Fifth District noted that “[w]hen counsel for Torres reveal ed the meager income of his client, a juror began to cry and told the trial j udge that the stories she heard were ‘sad.’” Id. at 1196-97. Furthermore, despite the fac t that “Samuels presented significant evidence regarding her injuries,” and evi dence regarding a $60,000-$80,000 future spinal surgery, the jury only awarded th e future medical expenses in “the sum of $1,000 per year of her projected thirty -four years of remaining life, an award completely devoid of evidentiary suppo rt” which the trial court believed “is explainable only as a result of the prejudic ial statement made about the irrelevant issue of Torres’ meager income.” Id. at 1197. Th is is not what occurred in the case before us. Finally, R.J. Reynolds contends that plaintiffs’ counsel improp erly denigrated the defense. After carefully reviewing the transcript, we rejec t this argument. Plaintiff’s attorney in closing was in the middle of saying “so in fact they still, still, to this day, trying to pretend like they . . . ” when his stat ement was interrupted by an objection and he was ordered to move on, which he did. Whil e some of Plaintiffs’ counsel’s comments approached the boundary of what constitutes proper argument,14 they did not rise to the requisite level to warrant a new trial . The evidence at trial, as well as the jury instructions, demonstrated that R.J. Reynolds affirmatively attempted to conceal from the public information regarding the health dangers of cigarettes. Furthermore, testimony demonstrated that at one poi nt, when public service announcements were shown along with cigarette ads, toba cco companies attacked the public service announcements, calling them false a nd misleading. Evidence at trial also showed that executives within the tobacc o industry actively disputed – if not misrepresented – the harmful effects of cigar ettes despite available scientific proof at the time. “Attorneys should be afforded great latitude in presenting clos ing argument, but they must ‘confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.’” Murph y v. Int’l Robotic Systems, Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Knoiz en v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998)). Plaintiffs’ counsel’s c omments during his closing argument in this case may be considered to be close to the limits of what is acceptable. Indeed, they may well justify reversal in a differe nt context. In the context of the evidence of this particular trial, however, we f ind that the comments did not rise to a level that requires reversal. This conclusion is particularly compelling here because the tri al spanned nearly three weeks and closing argument ended on a Friday. The jury returned the15 following Monday, engaged in two days of deliberation, and foun d in favor of R.J. Reynolds on the question of punitive damages and concealment; a warded less than the compensatory amount requested for the daughter; and attribu ted a higher percentage of comparative negligence to Schleider than what Pla intiffs’ counsel argued for in closing. These actions by the jury strongly indic ate the jury was not inflamed, prejudiced, or improperly mislead by closing argument s. This brings us to R.J. Reynolds’ main argument on appeal. R.J. Reynolds’ main argument on appeal concerns the trial court’s denial of it s motions for remittitur and a new trial on damages. It contends the amounts awarded by the jury of $15 million to the wife and of $6 million to the daughter are exces sive. The award of money damages for pain and suffering reflects an attempt to est ablish an objective economic equivalent for the subj ective pain a person suffered. It has been described as “an attempt to ‘measure that which is immeasurable.’” Ortega v. Belony, 185 So. 3d 538, 540 (Fla. 3d DCA 2015) (quoting Food Fair Stores, Inc. v. Morgan, 338 So. 2d 89, 92 (Fla. 2d DCA 1976)). Because of the inherent difficulty in measuring non-economic da mages such as pain and suffering, the Florida Supreme Court has determined that “[t]he jury, guided by its judgment and everyday life experiences, is in the best position to make a fair assessment of these damages.” Odom v. R.J. Reynolds Toba cco Co., No.16 SC17-563, 2018 WL 4496563, at *6 (Fla. Sept. 20, 2018) (quoting Angrand v. Key, 657 So.2d 1146, 1149 (Fla. 1995)). As the Supreme Court has fur ther explained: Jurors know the nature of pain, embarrassment and inconvenience , and they also know the nature of money. Their problem of equating t he two to afford reasonable and just compensation calls for a high ord er of human judgment, and the law has provided no better yardstick fo r their guidance than their enlightened conscience. Their problem is no t one of mathematical calculation but involves an exercise of their s ound judgment of what is fair and right.
Id. (quoting Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 668 (Fla. 1955)). For this reason, a jury’s award of damages should not be distur bed unless “it is so inordinately large as obviously to exceed the maximum lim it of a reasonable range within which the jury may properly operate.” R.J. Reynold s Tobacco Co. v. Townsend, 90 So. 3d 307, 311 (Fla. 1st DCA 2012) (quoting Bould v. Touchette, 349 So. 2d 1181, 1184–85 (Fla. 1977)). Moreover, having heard t he same evidence as the jury, “[t]he trial court is in the best position to dete rmine whether the compensatory damages award is excessive.” Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, 79 (Fla. 3d DCA 2013). For this reason, “[w]e re view the trial court’s denial of . . . post-trial motions for remittitur and new trial under the abuse of discretion standard.” Maggolc, Inc. v. Roberson, 116 So. 3d 556 , 558 (Fla. 3d DCA 2013).17 The remittitur statute reads in pertinent part as follows: (1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant a nd a verdict is rendered which awards money damages to the plaintiff, it sha ll be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inade quate in light of the facts and circumstances which were presented to the trier of fact.

. . . . (3) It is the intention of the Legislature that awards of damag es be subject to close scrutiny by the courts and that all such award s be adequate and not excessive.

. . . . (5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reaso nable range of damages or is inadequate, the court shall consider the following criteria: (a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact; (b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable; (c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture; (d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and18 (e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons. (6) It is the intent of the Legislature to vest the trial court s of this state with the discretionary authority to review the amounts of damag es awarded by a trier of fact in light of a standard of excessiven ess or inadequacy. The Legislature recognizes that the reasonable acti ons of a jury are a fundamental precept of American jurisprudence and th at such actions should be disturbed or modified with caution and discre tion. However, it is further recognized that a review by the courts i n accordance with the standards set forth in this section provide s an additional element of soundness and logic to our judicial syste m and is in the best interests of the citizens of this state. § 768.74, Fla. Stat. (2014) (emphasis added). None of the factors set forth in the remittitur statute to just ify a reduction are present here. The jury did not find in favor of the Plaintiffs on all counts. The jury apportioned a greater percentage of fault to the decedent than requested by Plaintiffs. The jury awarded the daughter less than she sought. Lastly, the jury elected not to award punitive damages. Indeed, the jury awarded the wife $15 m illion when she only requested $11 million, but both counsel for Plaintiff and counsel for R.J. Reynolds told the jury there was no limit on what the plaintiff could request and counsel for R.J. Reynolds suggested no actual number to the jur y. On balance, we find nothing to suggest impropriety, partiality, or a runaway j ury. “Under Florida law an award of non-economic damages must bear a reasonable relation to the philosophy and general trend of prio r decisions in such19 cases.” Philip Morris USA Inc. v. Cohen, 102 So. 3d 11, 18 (Fla . 4th DCA 2012), quashed on other grounds in R.J. Reynolds Tobacco Co. v. Cohen, No. SC13-35, 2016 WL 375143 *1 (Fla. Jan. 26, 2016) (quoting Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008)). Here , the awards do precisely th at. The award of $15 million is indeed higher than awards in the $1 0 to $12.5 million range previously upheld by this and other courts. See, e.g., Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA 2015) (up holding $12.5 million verdict) 5 ; Alexander, 123 So. 3d at 76-79 (upholding trial court’s reduc tion of $20 million verdict to $10 million); Philip Morris USA, Inc. v. Kayton, 104 So. 3d 1145, 1147 (Fla. 4th DCA 2012) (upholding $8 million compens atory damages award but reversing $16 million punitive award for determinatio n of statute of repose issue), quashed on other grounds in Kayton v. Philip Morris USA , Inc., Nos. SC13- 171, SC13-243 (Fla. Feb. 1, 2016) (summarily quashing decision and reinstating jury verdict); Cohen, 102 So. 3d at 19 (upholding $10 million compen satory damages, but reversing $10 million punitive damages for determination of statute of repose issue); Townsend, 90 So. 3d at 307 (upholding a $10.8 million c ompensatory damages award and $80 million in punitive damages). 6

5 The Cuculino jury apportioned 60% of the fault to Mr. Cuculino , reducing the actual award to $5 million . Cuculino, 165 So. 3d at 39.

6 The Townsend jury found R.J. Reynolds to be 51% responsible fo r the death of Mr. Townsend, reducing the jury award in accordance with the al location of20 However, these awards from other cases do not establish a cap o n noneconomic damages for surviving spouses in the amount of $10 mil lion for all time and for all circumstances. As the Supreme Court recently noted, “neither the Legislature nor this Court has limited or established a bright- line cap on the amount a survivor may be awarded in noneconomic damages under the wron gful death statute.” Odom, 2018 WL 4496563, at *9. Moreover, the award here is only a fraction higher—not multiple times higher—than those previously upheld. Cf. Rety v. Green, 546 So . 2d 410, 420 (Fla. 3d DCA 1989) (reversing denial of remittitur of award “nearly t wenty times higher than any libel verdict which has ever been upheld on appeal in Florida or elsewhere”). This award therefore cannot be said to be “so inor dinately large as obviously to exceed the maximum limit of a reasonable range wit hin which the jury may properly operate.” Bould, 349 So. 2d at 1184–85. Considering the unique facts of this case and weighing the evid ence, the jury made its determination that a $15 million award to the wife was warranted. The jury heard significant evidence in support of the wife’s loss of con sortium and pain and suffering claims. The jury heard evidence that Schleider was fi fty-six and his wife

percentage of fault. The trial court entered a judgment agains t R.J. Reynolds in the amount of over $46 million, consisting of approximately $5.5 mi llion in compensatory damages and $40.8 million in punitive damages.21 was fifty-five at the time of his death; they had been married for thirty years, and had four children. Schleider had become disabled and, as a resu lt, was a stay-athome parent and the primary caregiver for their family. The wif e had just retired and the couple moved to the Florida Keys when Schleider was first d iagnosed. He passed away within roughly two years. During that time, the wife watch ed as Schleider withered away and suffered. By the end, he had lost all of his hair, he could not use the c ommode by himself (which was kept next to his bed because he could not walk to th e bathroom), and was being daily administered morphine for his pain. After testi fying about the suffering she witnessed, she said, “I do not want to ever see a nybody else suffer like that.” Even twenty years later, the wife has never remarried. T he Plaintiffs also published certain life expectancy tables to the jury to establi sh the duration of loss. The trial court, having heard the same testimony the jury relie d upon, upheld the jury’s award. Given the evidence presented, fifteen million dol lars for the loss of a spouse as the wife embarked on her retirement and the couple mo ved to the Florida Keys may be more than what we would have awarded as jurors, but it is not so inordinately large as to justify reversal of the jury award and the trial court in this

case. Similarly, the jury determined that a $6 million award to the d aughter – $1 million less than what Plaintiff requested – was appropriate. R .J. Reynolds primarily22 relies on a number of cases involv ing damages awards to adult c hildren to establish that the award in this case is an outlier, and therefore, exces sive. However, a comparison of this award to cases involving adult children is i nappropriate because the daughter was not an adult child under the statute. Florida’ s Wrongful Death Act expressly permits recovery of damages by either a decedent’s su rviving spouse, surviving minor child, or both. § 768.21(1)-(3), Fla. Stat. (pe rmitting recovery for loss of parental companionship and pain and suffering for a sur viving adult child only where there is no surviving spouse). In doing so, the stat ute defines a minor as a child “under 25 years of age, notwithstanding the age of majo rity.” § 768.18(2), Fla. Stat. Here, the Schleider’s daughter was twenty-two years old, and thus a statutory minor, when her father died. The jury heard the daughter’s testimony regarding her father’s presence in her life and the closeness of their relationship. She testified tha t he was the primary caregiver, “Mr. Mom,” and the primary source of support and gui dance in her life. She moved from New York to the Florida Keys to be closer to her parents and, once her father got sick, she helped take care of him. The jury also heard that no one walked her down the aisle at her wedding. The jury heard that s he is unable to speak about his death even 20 years later because “the way he died” c auses her to cry. She explained that she began experiencing and still has panic attac ks to this day as a result of his death.23 We simply cannot draw a bright line establishing a particular a ge involving a surviving minor under Florida’s Wrongful Death Act that would w arrant a lesser or greater award. Children will have different relationships with parents. Some parents will be close, as was the case here; some not. An inquiry into this matter is factually intensive and turns largely on the nature and credibility of th e evidence presented, not merely the age of the surviving child. There are few published opinions for comparison. However, the a ward in this case falls squarely within the realm of those awards. At the ou tset, we acknowledge the cases where appellate courts have reversed jury awards of $ 6 million to adult children as excessive. See Philip Morris USA Inc. v. Putney, 1 99 So. 3d 465, 470- 71 (Fla. 4th DCA 2016) (concluding that $5 million award to eac h of three surviving adult children of the deceased smoker was excessive and there w as no evidence “of the type of close or supportive relationship that would justify such an award”) 7 ; R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 337 (Fla. 1st DCA 2012) (reversing an $8 million award to an adult surviving child of a cigarette smoker who was fiftyfour years old when her father passed away on the basis that it was excessive as compared to other similar Engle awards).

7 The initial brief in Putney indicated that the adult children were each in their thirties and living independently. Initial Brief for Appellant Philip M orris USA Inc. and R.J. Reynolds Tobacco Company at 20, Philip Morris USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016) (Nos. 4D10-3606 & 4D10-5244 Consol.)

.24 But we do not read these cases as establishing a cap for minor children for all time and all circumstances. Indeed, a court has upheld awards o f $7.5 and $4 million to surviving minor children under similar circumstances. R.J. R eynolds Tobacco Co. v. Grossman, 211 So. 3d 221, 229 (Fla. 4th DCA 2017), review de nied, No. SC17- 706, 2017 WL 3751318, review granted on other grounds, No. 17-6 88, 2018 WL 3097036, remanded on other grounds to 4D13-3949, 2018 WL 337536 3 (Fla. 4th DCA July 11, 2018). A court has also upheld an award of $4.4 mi llion to a surviving minor whose mother was killed instantly in a car accident. See Citrus County v. McQuillin, 840 So. 2d 343, 347-48 (Fla. 5th DCA 2003). Moreove r, as noted above, the Supreme Court recently held that “neither the Legislature n or this Court has limited or established a bright-line cap on the amount a surviv or may be awarded in noneconomic damages under the wrongful death statute.” Odom, 20 18 WL 4496563, at *9. Given the extremely fact-specific nature of the individual rela tionships that are a basis for a compensation award to a minor statutory survi vor, it is only natural that jury verdicts will vary. The problems of determining the n ature of these relationships and a commensurate award goes to the heart of why we use juries to set the amount. While we entertain notions that an award may “r aise judicial eyebrows” or “shock the judicial conscience,” we have yet to es tablish an objective measure to evaluate when a jury’s award for pain and suffering is too large or too25 small. In deciding whether to grant remittitur, the trial court has wide discretion precisely because it has a better vantage to determine whether an award is excessive. In contrast, as appellate courts, having only the cold transcri pts before us, we lack the vantage of the trial courts in these matters. The dissent somewhat summarily concludes that there is nothing “unique” about the daughter’s suffering. We are reminded of Tolstoy’s ob servation that “all happy families are alike; each unhappy family is unhappy in its own way.” Reflecting this wisdom, our system of laws leave the nature and extent of the daughter’s suffering to the province of the jury, and then to t he trial judge who actually saw and heard the testimony. Particularly, as appellat e judges with only the cold record before us, we “must resist the urge to ‘declare a v erdict excessive merely because it is above the amount which the court itself considers the jury should have allowed.’” Odom, 2018 WL 4496563 at 9 (quoting Bould, 349 So. 2 d at 1184). Here, we find no abuse of discretion by the trial court in den ying remittitur or a new trial on the awards to the wife and daughter. Affirmed. EMAS, J., concurs.26 R.J. Reynolds Tobacco Company v. Diane Schleider, etc., Case No. 3D15-1634
ROTHENBERG, C.J. (dissenting). The majority opinion makes a valiant attempt to minimize the i mpact of the improper arguments made by plaintiffs’ counsel and to distingui sh the cases that have been reversed for similar improper arguments. However, as will be carefully addressed in this dissent, the cumulative effect of the imprope r arguments in this case, which is not unique in terms of the evidence against R.J. Reynolds, but is unique in the scarcity of evidence in the record to support the exorbitant loss of consortium awards to Mr. Schleider’s wife and non-dependent chi ld, requires a new trial. A new trial is required because the Plaintiffs’ counsel made nu merous improper and inflammatory closing arguments. These improper ar guments, which were repeatedly objected to by R.J. Reynolds, but which were in explicably overruled or ignored by the trial court, contributed to the very high jur y awards and denied R.J. Reynolds of its right to a fair trial. As this dissent will do cument, the Plaintiffs’ closing arguments were highly improper, the trial court erred b y overruling R.J. Reynolds’ objections and by denying R.J. Reynolds’ repeated req uests to explain its objections to the trial court at side bar, and the Plaintiffs h ave failed to demonstrate27 that these errors are harmless. In fact, the extremely high ju ry awards demonstrate the opposite. For these reasons, I respectfully dissent. R.J. Reynolds is entitled to a new and fair trial. The Plaintiffs’ improper arguments fall within the following t hree categories which will be addressed in turn: (1) inflammatory arguments des igned to invoke the jury’s emotions (sympathy and anger); (2) attacks upon R.J. Rey nolds and its counsel for their defense of the case; and (3) comparing R.J. R eynolds’ “wealth” and “power” to that of Mr. Schleider, who was alternatively referre d to as “just a child” when he began to smoke and “a gentleman who was addicted to nic otine” as an adult. I. Plaintiffs’ Counsel’s Improper Arguments
A. The Plaintiffs’ inflammatory arguments One of the Plaintiffs’ themes in its closing arguments was tha t the jury should punish R.J. Reynolds for the millions of people (8.5 million, a ccording to the Plaintiffs’ counsel) who are currently living with smoking-rela ted illnesses and for the 450,000 Americans who die each year from smoking-related il lnesses. [Plaintiffs’ Counsel]: . . . [T]hese corporations, they can’t d o this and get away with it. They can’t do this for 50 years, 450,000 Ame ricans die every year, okay? And that’s a lot of people.

. . . . [Plaintiffs’ Counsel]: So when we talk about 450,000 who die e very year, it doesn’t seem - - you know, it’s a number that maybe yo u grow numb to, but if you wrap your mind around that number and you t hink about it, what that means is if there is a plane crash tomorrow and - - R.J. Reynolds immediately objected and requested to make a mot ion but the28 trial court overruled the objection and did not hear R.J. Reyno lds’ motion. Emboldened by the trial court’s ruling, the Plaintiffs’ counsel charged forward, building on his plane crash theme and inflaming the jury with n ot only the number of smoking-related deaths, but by invoking images of plane cras hes and the mourning public. [Plaintiffs’ Counsel]: So if a plane crashed, it would be big news, right? People would be watching it on CNN and we would watch i t and we would feel bad for those families and we would mourn wit h the families and everybody would feel bad, and it would be horrible. 450,000 is the equivalent – [Defense Counsel]: Your Honor, I’m sorry to interrupt. Can I just get a continuing objection? [The Court]: Yes. [Defense Counsel]: I need to make a motion, I have a number of objections to this. [The Court]: That’s fine. Thank you. [Plaintiffs’ Counsel]: The number would be the equivalent in t erms of number, just so you could wrap your mind around the harm being done, of three plane crashes every day for a year . That would be about 450,000 Americans. And that’s why I say when you consider what they’ve done, the harm of what they done . . . . And that’s the evidence in this case about how many people have died, and he w as just one of them. (Emphasis added). These arguments made by the Plaintiffs’ trial counsel were not only improper because they were inflammatory, but were also improper because they inferred that29 the jury could and should punish R.J. Reynolds for the harm suf fered by all smokers caused by the entire tobacco industry . However, both compensatory and punitive damages in these individual smoker cases must be confined to th e damages suffered solely by the plaintiff in each case being tried—not all plaint iffs, all potential plaintiffs, and certainly not all Americans with smoking-relate d illnesses. Otherwise, juries might, and it appears did in this case, award damages based on the hundreds of thousands of Americans who may have died and who ma y die in the future from a smoking-related illness and the millions of Ameri cans living with smoking-related illnesses, all of whom were non-parties in the instant litigation. The Plaintiffs’ counsel contends that there was nothing improp er about his arguments highlighting the number of smoking-related deaths (al legedly 450,000 each year) and the number of persons living with smoking-relate d illnesses (allegedly 8.5 million). He also contends there was nothing im proper with asking the jury to picture watching CNN reporting on a plane crash and asking the jury to envision how bad “we would feel for those families and we would mourn with the families and everyone would feel bad, and it would be horrible, ” and then telling the jury to envision that horrible loss extending to 450,000 Americ ans and to multiply that horror to the horror of three plane crashes every day for a year. The Plaintiffs’ counsel contends that his “vivid or descriptive analogy” was ut ilized to help the jury “grasp the sheer magnitude of the harm caused by RJR’s miscondu ct.” But that is30 exactly why these arguments were improper. The majority also concludes that because the Plaintiffs were s eeking punitive damages in this case, these highly inflammatory arguments were permissible. However, as will be discussed below, that conclusion is in dire ct conflict with established Florida Supreme Court precedent and constitutional due process. The record also reflects that the Plaintiffs’ counsel used the numb er of smoking-related illnesses and deaths in its plea for the jury to punish RJ Reyn olds for an improper purpose. The number of smoking-related deaths or smoking-relat ed illnesses was improperly used by the Plaintiffs to inflame the jury and to se ek an award that punished R.J. Reynolds for the alleged injury and death to non-parties in this case

. The case law is clear on the impropriety of such arguments, as the jury should only have been permitted to consider the damages suffered by the pla intiffs in this case— Mr. Schleider’s wife and Mr. Schleider’s non-dependent daughte r, and to punish R.J. Reynolds for its actions as it relates to the plaintiffs i n this case. The Plaintiffs’ counsel’s impassioned arguments, however, improperly urged the jury to consider the death or injury to millions of non-parties when determining the amount of damages to award in this case, which did not include these non- parties. This violated R.J. Reynolds’ constitutional right to due process. In Philip Morris USA v. Williams, 549 U.S. 346, 349 (2007), wh en answering “whether the Constitution’s Due Process Clause permits a jury t o base that award in31 part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent),” t he United States Supreme Court held that “such an award would amount to a taking of ‘property’ from the defendant without due process.” (emphasis in original) . Specifically, the United States Supreme Court in Williams made clear that although punitive damages may be imposed to punish unlawful conduct and to deter its repetition , id. at 349, “ the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation .” Id. at 353 (emphasis added); see also State Farm Mut. Auto. Ins. v. Campbell, 538 U. S. 408, 420 (2003) (noting that “[T]he Campbells demonstrated, through the testimo ny of State Farm employees who had worked outside of Utah, and through expert te stimony, that this pattern of claims adjustment under the PP & R program was not a local anomaly, but was a consistent, nationwide feature of State Farm’s busine ss operations, orchestrated from the highest levels of corporate management,” and condemning the Campbells’ use of their case as a platform to expose and punish for alleged deficiencies of State Farm’s operations throughout the country, rather than for its conduct against the Campbells); Branham v. Ford Motor Co., 701 S.E.2d 5, 23-24 (S.C. 2010) (finding the most egregious error was “counsel’s re quest that the jury32 punish Ford for harming others beyond [the plaintiff] . . . [b ]y focusing on conduct, as opposed to harm to Branham, the charge invited the jury to p unish Ford for all Bronco rollover deaths and injuries”); Durham v. Vinson, 602 S. E.2d 760, 767 (S.C. 2004) (reversing an award of punitive damages because the trial court allowed the jury to punish the defendant for bad acts unrelated to the defe ndant’s actions toward the plaintiff). The arguments made by Plaintiffs’ counsel encouraging the jury to punish R.J. Reynolds for the millions of people who are allegedly living wi th smoking-related illnesses and for allegedly killing 450,000 Americans each year rather than punishing R.J. Reynolds for its injury to Mr. Schleider and his surviving wife and daughter was, therefore, improper, and the highly inflammatory mental images Plaintiffs’ counsel beseeched the jury to envision—three airpla nes filled with passengers crashing each day for a year and the pain and suffer ing of the families and the public at large resulting from viewing the carnage on t elevision—therefore violated both R.J. Reynolds’ constitutional right to due proces s and its right to a fair trial. As the United States Supreme Court in Campbell recogniz ed, to punish a defendant (in a non-class action lawsuit) for the alleged injur y to nonparties “creates the possibility of multiple punitive damages awards for the sam e conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains.” Campbell, 538 U.S. at 423.33 These highly improper inflammatory arguments were clearly, tim ely, and repeatedly objected to by R.J. Reynolds’ counsel. However, the trial court, which appeared focused on getting the case to the jury, as opposed to monitoring the arguments of counsel and protecting the fairness of the proceed ings, either overruled R.J. Reynolds’ objections or, in some instances, completely ign ored them and simply
thanked R.J. Reynolds’ counsel for his objection. We, therefore, revi ew these improper arguments under a harmless error standard of review. See Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016) (providing that “[w]here the comments were improper and the defense objected, but the trial court erroneou sly overruled defense counsel’s objection, [the appellate court] appl[ies] the harmle ss error standard of review”); accord Diaz v. State, 139 So. 3d 431, 434 (Fla. 3d DC A 2014). Under the harmless error analysis, the beneficiary of the erro r, which in this case are the Plaintiffs, must prove that there is no reasonable possibility that the error contributed to the verdict, and if the beneficiary fails to sat isfy that burden, then the error is harmful and a new trial is required . See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). The Plaintiffs have clearly fai led to establish that the cumulative effect of this objected-to highly inflammatory argum ent and the other improper objected-to closing arguments was harmless in this cas e. The Florida Supreme Court and this Court have repeatedly cauti oned lawyers and judges alike that closing arguments “must not be used to ‘i nflame the minds and34 passions of the jurors so that their verdict reflects an emotio nal response . . . rather than the logical analysis of the evidence in light of the appli cable law.” Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (qu oting Bertolotti v. State, 476 So. 2D 130, 134 (Fla. 1985)); see also Garron v. Sta te, 528 So. 2d 353, 359 (Fla. 1988) (noting that comments in closing arguments that inject elements of emotion and fear into the jury’s deliberations go “far outside the scope of proper argument”); Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (warning that inflammatory and prejudicial comment “will not be condoned ”). The courts in this state have reversed jury verdicts based on inflammatory closing arguments after performing a harmless error analysis, a nd they have even reversed jury verdicts after performing a fundamental error ana lysis, requiring a much higher burden. For example, in Walt Disney World Co. v. B lalock, 640 So. 2d 1156, 1158 (Fla. 5th DCA 1994), the Fifth District Court of Appeal concluded that the plaintiff’s counsel’s inflammatory comments and person al opinions during closing arguments, even though not objected to, constituted fundamental error and deprived Walt Disney World of its right to a fair trial. I n that case, a ten year old boy was injured when he was riding as a passenger in a boat at the park and the boat bumped into the side of another passenger boat, and the bo y’s hand was allegedly caught between the two boats and resulted in the ampu tation of his thumb. The improper argument made by counsel for the plaintiff is as f ollows:35 [Y]ou know, why don’t you consider the fact that maybe instead of Luke, a ten year old, that we have a three or four year old sit ting in this seat and they had their little ears on, okay, that they bought at the Magic Kingdom and the ears fell off into the water and so they go to pick them up. . . . The boat, it takes their arm off or if they’re leanin g over it smashes them in the head? . . . I mean, you know, but for the grace of God, you know, we’d have some ot her catastrophic circumstance .

. . . Blalock, 640 So. 2d at 1158. In the instant case, R.J. Reynolds timely objected to the impr oper inflammatory arguments. Thus, unlike the defendant in Blalock, which was required to and did in fact demonstrate fundamental error, the burden is on the Plaintiffs in this case to demonstrate that the error was harmless error. As will be discussed at length under section II of this dissent, the Plaintiffs have fa iled to meet their burden in this case due to the cumulative effect of multiple improper closing arguments and the extremely high loss of consortium verdicts. The Plaintiffs ’ counsel asked the jury to award Mr. Schleider’s wife $11 million for her loss of consortium claim against R.J. Reynolds, but the jury awarded her $15 million des pite the very limited evidence provided by the wife regarding her loss, and the jury awarded Mr. Schleider’s non-dependent daughter an additional $6 million, an amount which our sister courts have found to be excessive for a child who is not dependent on the deceased parent for support or companionship. The majority suggests that the reversal ordered in Blalock can be distinguished from the improper arguments made by the Plaintiff s’ counsel in the36 instant case. I respectfully disagree. In both cases, the clo sing arguments were improper, inflammatory, and pervasive. My dissent relies on th e reversal in Blalock because a new trial was ordered despite the vastly different an d the more difficult burden that had to be met to obtain a reversal based on the imp roper closing arguments. In Blalock, defense counsel failed to object to the improper arguments made by the plaintiff’s counsel. Thus, instead of the plaintif f having the burden (as it has in the instant case) to prove that the improper argument s did not contribute to the verdict, the burden was on the defendant in Blalock, and th e defendant was required to demonstrate fundamental error. In other words, the burden shifted from the plaintiff to the defendant in Blalock and the burden was a much higher burden. In the instant case, R.J. Reynolds did object but the trial court overruled the objections. Thus, the burden is on the Plaintiffs, not R.J. Re ynolds, and the Plaintiffs must prove that the error did not contribute to the verdict . Also, and importantly, the verdicts in Blalock did not even approach the level of the awards in the instant case. The jury in Blalock awarded a total of $881,895 in damag es, and $279,200 of that award was for future medica l expenses. Here, the jury awa rded Mr. Schleider’s wife $15 million and his non-dependent daughter $6 million base d solely on their loss of consortium claims. In State v. Jones, 558 S.E.2d 97, 99 (N.C. 2002), the Supreme Court of North Carolina reversed a death sentence and remanded for a new sente ncing hearing based37 on the State’s improper closing arguments before a jury during the sentencing phase of the trial. Over defense objection, the State improperly ref erred to the Oklahoma City federal building bombing and the Columbine school shooting s in what the court concluded could not “be construed as anything but a thinly veil ed attempt to appeal to the jury’s emotions.” Id. at 107. The court found that the argument was improper because: “(1) it referred to events and circumstances outside t he record; (2) by implication, it urged jurors to compare defendant’s acts with t he infamous acts of others; and (3) it attempted to lead jurors away from the evide nce by appealing instead to their sense of passion and prejudice.” Id. at 107. Similarly, in the instant case, the Plaintiffs’ counsel’s clos ing argument improperly referred to events and circumstances outside the rec ord that were totally irrelevant to the amount of damages suffered by the Plaintiffs in this case: the alleged 450,000 smoking-related deaths, the alleged 8.5 million smoking -related illnesses, and the families’ grief and mourning in those cases as a result of those deaths and illnesses. Rather than focusing on the evidence, these imprope r closing arguments appealed to the jury’s sense of passion and prejudice, and inst ead of urging the jurors to compare R.J. Reynolds’ acts with the acts of others as in Jo nes, the Plaintiffs’ counsel attempted to impute the damages allegedly suffered by m illions of people to the damages awardable in this individual case. In evaluating whether the plaintiff’s improper closing argument required a38 new trial, the Jones court concluded that “[t]he impact of the statements in question, which conjure up images of disaster and tragedy of ep ic proportion, is too grave to be easily removed from the jury’s consciousness , even if the trial court had attempted to do so with instructions ,” id. at 107 (emphasis added), and therefore, reversed for a new sentencing proceeding. In Samuels v. Torres, 29 So. 3d 1193, 1197 (Fla. 5th DCA 2010), the Fifth District also reversed for a new trial based on the plaintiff’s counsel’s improper arguments and based on a much higher burden of proof than the o ne in the instant case. Because defense counsel failed to object to the improper arguments, the burden shifted, as it did in Blalock, to the defendant to establish fu ndamental error. The Fifth District concluded that fundamental error was established and ordered a new trial stating that “counsel for Torres [had] employed a defense stratagem in his opening statement to curry sympathy from the jury and it is obv ious from this record that he succeeded,” and “[a]s a result, Samuels was deprived of a fair trial.” Similarly, in DeFreitas v. State, 701 So. 2d 593, 601 (Fla. 4th DCA 1997), the Fourth District found that the prosecutor violated the rule against in flammatory argument by comparing the misconduct of the defendant to the O.J. Simpso n case, and held that this improper argument, along with other improper argument s, constituted
fundamental error requiring a new trial. In each of these cases, Blalock, Samuels, and DeFreitas, the ap pellate courts39 concluded that the cumulative effect of the improper arguments required a new trial, and in each of these cases the burden was a much higher burden than in the instant case because in those cases, no objection was made, and thus th e defendant was required to establish, and did establish, that the error rose t o the level of fundamental error. In the instant case, the Plaintiffs, not the defendant, have the burden and their burden is to establish that the cumulative effect of the improp er arguments was harmless. The Plaintiffs have not met that burden here based o n the extremely high loss of consortium damages the jury awarded to Mr. Schleider’s wife and nondependent daughter, which reflects that Plaintiffs’ counsel’s s tratagem—to curry sympathy from the jury—succeed ed. Torres, 29 So. 3d at 1197. Asking the jurors in the instant case to conjure up the image o f three plane crashes a day for a year, the yearly deaths of 450,000 American s, an additional 8.5 million Americans who are suffering with smoking-related illnes ses, and the mourning of millions of American families, far surpasses the “t ragedy of epic proportion” improperly argued in Jones. And because the trial court overruled R.J. Reynolds’ objections, the trial court telegraphed to the jurors that it was entirely proper for them to consider these images and the total number o f affected people when determining the damages they could and should award in thi s case. I would, therefore, reverse o n this ground alone. B. Attacks upon R.J. Reynolds and its counsel for their defens e of the case40 “The law is clear that it is improper for an attorney to dispa rage an opposing party’s defense of a case or to suggest that a party should be punished for contesting a claim.” Fasani v. Kowalski, 43 So. 3d 805, 809 (Fla. 3d DCA 2010). In fact, “[t]he most grievous arguments” a plaintiff’s lawyer can make a re those suggesting that the defendant “acted improperly by defending [against the plaintiff’s] claims.” Carnival Corp. v. Pajares, 972 So. 2d 973, 977 (Fla. 3d DCA 200 7). In the instant case, the Plaintiffs’ counsel attacked R.J. Rey nolds for pursuing a comparative fault defense by claiming that R.J. Reynolds’ def ense was an improper attack on “the victim” in an effort to blame “the victim” for t he damages he suffered, even though Mr. Schleider’s wife admitted on the stand that her husband bore some responsibility for his injuries because he did not try hard eno ugh to quit smoking. The Plaintiffs’ counsel also disparaged R.J. Reynolds’ counsel and suggested that they were participants in the tobacco industry’s conspiracy. [Plaintiffs’ Counsel]: You know, it’s funny that they get up he re and they....

. . . . [Plaintiffs’ Counsel]: She just got up here and she showed you all the scientists who did all this research, the 6,000 studies, and it ’s amazing that they are still proud of it, that they are still bragging a bout all the research that all this money paid for when the judge is going t o instruct you that the Engle trial, the CTR, funded that research and the y were found liable for the fraud. So they s till haven’t - - [Defense Counsel]: Objection, misstating the instruction, your Honor.41 [Plaintiffs’ Counsel]: Well, [the trial court] will read the in struction to you. [The Court]: Okay, I already read that in jury instructions. C ontinue to finish up your closing. [Plaintiffs’ Counsel]: You heard from Dr. Proctor about that re search, what the dirty money was used for, how people didn’t know what it was being used for, the CTR, the TIRC, they were all in it together , they were all part of the fraud. So the fact that they’re still, st ill, to this day, trying to pretend like they - - [Defense Counsel]: Objection, to characterizing our defense of the case, Your Honor. [Plaintiffs’ Counsel]: Okay, I’ll move on. [Defense Counsel]: Motion - - [The Court]: Move on, Mr. Paige [Plaintiffs’ counsel]. This Court has repeatedly reversed judgments and remanded for new trials based on arguments that denigrated the defense of a case or sug gested that the defendant had done something wrong by not admitting responsibil ity, presenting a defense, or arguing comparative fault by the plaintiff. For ex ample, in Pajares, this Court reversed and remanded for a new trial based on plaintiff’ s counsel’s improper closing arguments, which included attacks upon Carnival for pre senting evidence that Pajares smoked, and asking the jury to consider Pajares’s smoking when determining his comparative negligence, and suggesting that Car nival should be punished for defending the claims against it and for failing to accept its responsibility and the harm it had caused Paj ares. Pajares, 972 So. 2d at 977 -78.42 This Court has also held that plaintiff’s counsel’s improper, inflammatory remarks and personal attacks upon defense counsel required a ne w trial in Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007); State Farm Mu t. Auto Ins. Co. v. Revuelta, 901 So. 2d 377, 379-80 (Fla. 3d DCA 2005) (reversi ng a judgment in favor of Revuelta where Revuelta’s counsel insinuated that Stat e Farm had acted in bad faith by defending the action, rather than simply paying th e benefits); Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989) (reversing the judgment entered in favor of the plaintiffs and remanding f or a new trial due to comments made by the plaintiffs’ counsel disparaging the manner in which Carnival defended the action). This Court has not been alone in its conclusion that such obje cted-to arguments are not harmless and require a new trial. See R.J. R eynolds Tobacco Co. v. Odom, 210 So. 3d 696, 701-02 (Fla. 4th DCA 2016) (“In the to bacco context, we have held that if preserved, com ments disparaging a tobacco com pany for failing to take responsibility warrant a new trial.”); Cohen v. Philip Mor ris U.S.A., Inc., 203 So. 3d 942, 948 (Fla. 4th DCA 2016) (finding that the trial cou rt did not abuse its discretion by granting a new trial based on objected-to closing comments by plaintiff’s counsel concerning the tobacco company’s failure to take responsibility); R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla . 4th DCA 2016) (finding that tobacco defendants’ preserved objections to plain tiff’s counsel’s43 improper comment as to tobacco companies’ “alleged failure to a ccept responsibility” mandated reversal); Allstate Ins. Co. v. Marott a, 125 So. 3d 956, 960- 61 (Fla. 4th DCA 2013) (reversing and remanding for a new trial where insured’s counsel improperly urged the jury to punish Allstate for defend ing against its insured’s claim); Intramed, Inc. v. Guider, 93 So. 3d 503, 506- 07 (Fla. 4th DCA 2012) (reversing for a new trial based on plaintiff’s counsel’s arguments suggesting that Intramed should be punished for failing to take responsibi lity, for failing to apologize, and for defending the case). In Calloway, the Fourth District Court of Appeal, sitting en b anc, concluded that the tobacco company defendants were entitled to a new tria l based on plaintiff’s counsel’s improper inflammatory closing arguments. Calloway, 2 01 So. 3d at 758- 59. The inflammatory arguments made by plaintiff’s counsel in that case centered around the tobacco companies’ failure to take responsibility fo r their actions, plaintiff’s counsel’s suggestion that the tobacco companies sho uld be punished for contesting damages at trial, and arguing that the tobacco compa nies’ defense of their actions in court was improper. Id. at 759-61. The Fourth Dist rict noted that it had previously found such arguments to be improper in Marotta, Guid er, and Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595, 598 (Fla. 4th DCA 20 13). In Marotta and Guider, the Fourth District reversed and remanded for a new trial because the objections to these arguments were preserved; however, it affir med the judgment in44 Tullo because the tobacco companies failed to object and the co mments did not constitute fundamental error under the four-part test establish ed by the Florida Supreme Court in Murphy. Calloway, 201 So. 3d at 760. The Fo urth District also found in Calloway, that, even though the trial court had sustai ned many of the tobacco companies’ objections to these arguments and in some in stances gave a curative instruction, the trial court failed to adequately perf orm its duty to control the behavior of plaintiff’s counsel and that the cumulative eff ect of the repeated improprieties and sustained objections unduly prejudiced the ju rors. Id. at 763-65. In the instant case, the Plaintiffs’ counsel’s improper argume nts were exacerbated by the trial court’s failure to sustain R.J. Reynol ds’ objections, thus encouraging, rather than admonishing, the Plaintiffs’ counsel t o continue to make such arguments and telegraphing to the jury that these improper arguments should be considered in reaching its verdict. If sustaining the objec tions and giving curative instructions was insufficient to erase the taint of similar imp roper arguments in Calloway, then clearly overruling and ignoring R.J. Reynolds’ o bjections in the instant case require a new trial. We should also reject, as the Fourth District Court of Appeal has rejected, the assertion that such arguments are permissible because in additi on to determining the proper amount of compensation, the jury was asked to determine whether punitive damages was warranted. See Cohe n, 203 So. 3d at 942 (rejecting the argument that45 even if such arguments could be considered relevant to the issu e of punitive damages, the arguments may have tainted the jury’s compensatory liability determination). And, as will be discussed later in this dissen t, the Plaintiffs have failed to prove that there is no reasonable possibility that th e trial court’s incorrect overruling of R.J. Reynolds’ objections to the improper argumen ts by the Plaintiffs’ counsel (suggesting that R.J. Reynolds should be punished for d efending the case, failing to take responsibility, and for blaming Mr. Schleider f or continuing to smoke after he became aware of the danger to his health) did not cont ribute to the verdict. Based on Pajares, Sanchez, Fasani, Revuelta, Rosania, Cohen, O dom, Calloway, Marotta, and Guider, the Plaintiffs’ counsel’s argume nts disparaging R.J. Reynolds’ defense of the Plaintiffs’ claims and suggesting that R.J. Reynolds was acting in bad faith for pursuing a comparative negligence defen se based on Mr. Schleider’s continued smoking after learning about its harmful effects was improper. The trial court erred by overruling R.J. Reynolds’ objections t o these improper arguments and, as will be discussed later in this dissent, thes e arguments, coupled with the improper inflammatory arguments and other improper arg uments, deprived R.J. Reynolds of its right to a fair trial, requiring a reversa l for a new trial.
C. Comparing R.J. Reynolds’ “wealth” and “power” to that of Mr. Sc hleider The courts in this state have long recognized that “jurors hav e a tendency to favor the poor as against the rich and, if provoked by such inf lammatory evidence,46 the jury is likely to apply the deep pocket theory of liability .” Sossa ex rel. Sossa v. Newman, 647 So. 2d 1018, 1019-20 (Fla. 4th DCA 1994); see also Revuelta, 901 So. 2d at 380 (recognizing that jurors may be influenced by evi dence of a party’s wealth). Plaintiffs’ counsel, however, highlighted R.J. Reynolds’ and th e tobacco industry’s wealth and power in his closing arguments and asked the jury to compare that power and wealth to Mr. Schleider who was just a “a gentle man who was addicted to nicotine who tried as hard as he could to stop.” [Plaintiffs’ Counsel]: And I just want to be clear, we’re talk ing about a gentleman who was addicted to nicotine who tried as hard as he could to stop, and we ask you to compare that to the actions of these corporations. You know, it’s not just R.J. Reynolds, it’s Brow n & Williamson, American Tobacco, all their power, all their money

. R.J. Reynolds’ counsel immediately objected and requested to ap proach the bench to make a motion. At the sidebar conference, R.J. Reynol ds’ counsel articulated his objections and moved for a mistrial. R.J. Reyn olds argued that Plaintiffs’ counsel’s argument was in violation of R.J. Reynold s’ pre-trial motion in limine, which was granted by the trial court, precluding the Plaintiffs’ counsel from commenting on the wealth, resources, or financial being of the company, and specifically noted that the argument was directed to and made i n the context of comparative fault. The trial court overruled the objection and told Plaintiffs’ counsel to rephrase the argument and to move on. Plaintiffs’ counsel’s argument was clearly improper. The tria l court erred by47 denying R.J. Reynolds’ objection, and the cumulative effect of the Plaintiffs’ counsel’s improper arguments and the trial court’s overruling o f each and every one of R.J. Reynolds’ timely objections requires a new trial. The majority opinion has not addressed this argument and has not considered its effect w hen combined with the highly improper arguments already discussed in this dissent

. II. The Plaintiffs Did Not Establish That These Errors Were Har mless. Thus, a New Trial is Required The trial court erred when it overruled and, in some cases, ig nored, R.J. Reynolds’ objections thereby improperly permitting Plaintiffs’ counsel to: (1) make inflammatory arguments meant to appeal to the sympathy of the jurors and to evoke an emotional response from them; (2) encourage the jury t o punish R.J. Reynolds for damages suffered by non-parties to the litigation; (3) attack R.J. Reynolds and its counsel for their defense of the case and argu ments regarding Mr. Schleider’s comparative fault; and (4) ask the jurors to compar e R.J. Reynolds’ and the tobacco industry’s wealth and power to that of Mr. Schleide r. Because R.J. Reynolds timely objected, and its objections were overruled, th e harmless error standard of review applies. Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016); Diaz v. State, 139 So. 3d 431, 434 (Fla. 3d DCA 2014). Because the Plaintiffs were the beneficiary of these errors, t he Plaintiffs must establish that there is no reasonable possibility that their counsel’s improper arguments contributed to the jury’s $21 million non-economic lo ss of48 consortium damages verdict . See Special, 160 So. 3d at 1256. The Plaintiffs clearly have not met that burden, and thus, a new trial is mand ated. The strongest indicator that the jury was influenced by the Pl aintiffs’ counsel’s improper arguments is the extremely high non-economic damages awarded by the jury to Mr. Schleider’s wife ($15 million) and M r. Schleider’s nondependent daughter ($6 million). The $15 million award to Mr. Schleider’s wife is $4.2 million more than the highest non-economic damages award e ver affirmed in a Florida wrongful death case involving the death o f a spouse , and was $4 million more than what the Plaintiffs’ counsel asked the jury to award Mrs. Schleider. Further, the $6 million award for Mr. Schleider’s n on-dependent daughter far exceeds compensatory awards to children who are no t living with their deceased parent and who are financially independent.
A. The $15 million loss of consortium award to Mr. Schleider’s wif e The Plaintiffs have not been able to identify a single affirme d non-economic award to a surviving spouse close to the $15 million award to M r. Schleider’s wife. The record does not establish any unique facts or circumstances in this case which could possibly justify such a high award to Mrs. Schleider. Th e record reflects that Mr. and Mrs. Schleider married in 1966; on December 13, 1996, M r. Schleider was diagnosed with having a metastasized small-cell cancer in his l iver which had probably originated in his lung; and six months after being dia gnosed, Mr. Schleider49 died. The record also reflects that in 1978 or 1979, while wor king as a carpenter, Mr. Schleider fell from a roof, suffered debilitating fractures in both heels, and injured his back, which resulted in a declaration that he was p ermanently disabled. Thereafter, Mrs. Schleider supported the family while Mr. Schle ider stayed home and cared for their children. Although it is clear that Mr. Schleider did an excellent job p erforming the many tasks as a stay-at-home parent and was a loving husband an d father, there is very little evidence as to the pain and suffering he experience d following his diagnosis and his death six months later. Further, there was l ittle evidence as to the emotional or physical pain Mrs. Schleider experienced during th at six-month period associated with her husband’s illness. In fact, the record ref lects that prior to the diagnosis in 1996, Mr. Schleider demonstrated no symptoms other than periodic fatigue and that the only pain he was experiencing was the dail y chronic pain due to his disabling prior injuries. Further, the record does not reflect how involved Mrs. Schleider was in her husband’s care or what that care invo lved. Mrs. Schleider testified that hospice came to the house each day to assist wit h her husband’s care, and that she did not accompany her husband for his doctors’ app ointments. Additionally, the only post-death evidence regarding Mrs. Schle ider’s life since her husband’s death in 1997 is that she has never remarried, she st ill lives in the Florida Keys, she misses her husband, and she has travelled extensively around the world50 with her friends. This absence of evidence is important because spousal awards t hat were much smaller than the $15 million award to Mrs. Schleider, but which the appellate courts considered had reached the upper limit of a permissible award, were affirmed based upon record evidence that demonstrated extraordinary suff ering by the surviving spouse. For example, in Philip Morris USA Inc. v. Co hen, 102 So. 3d 11, 19 (Fla. 4th DCA 2012), 8 the Fourth District Court of Appeal found that, although the $10 million compensatory damage award to Cohen’s surviving spouse was at the outer limit of reasonableness for such a case, the record established an evidentiary basis to justify the award. Specifically, the jury heard testimony about what the couple’s life was like after Nathan’s diagnosis. The jury also learned that Nathan’s wife tore both of her rotator cuffs while caring for N athan and, although her injuries were very painful and required surgery, Nathan’s w ife testified that the emotional injury she suffered during that time was worse than t he physical pain she had endured. Cohen , 102 So. 3d at 19. The Fourth District noted that the evidence in Cohen regarding Nathan’s

8 This case should not be confused with Cohen v. Philip Morris U SA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016), which has been cited to earlier in this dissent and which was reversed based on improper closing arguments made by counse l for the plaintiff. In Cohen v. Philip Morris, the smoker was Helen Cohen. In Phil ip Morris v. Cohen, the smoker was Nathan Cohen. The two cases are unrelated, invo lved different plaintiffs, and the issues on appeal were completely different.51 spouse’s pain and suffering was nearly identical to the evidenc e relied upon by the First District in R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012). Cohen, 102 So. 3d at 19. In Townsend, a divided pa nel affirmed a $10.8 million compensatory damage award to the surviving spouse even though it was the highest non-economic damage award affirmed for such dam ages in an Engle-progeny case. The majority concluded that the record est ablished an evidentiary basis for the high award. Townsend, 90 So. 3d at 3 11-12. Mrs. Townsend testified that she and her husband enjoyed a very clos e relationship during their 39-year marriage and they were always together unt il her husband became ill. Id. at 312. When he became ill, Mrs. Townsend was forced to remain in Ocala to work to support the couple while Mr. Townsend recei ved treatment and underwent surgery related to his lung cancer in Chicago. Id. a t 312. Mrs. Townsend also described her husband’s suffering, how she cared for him a s he lay dying during the final six months of his life, and the acute impact this had and will continue to have on her for the rest of her life. Id. The panel in Townsend was, however, divided on the reasonablen ess of the award. In his dissent, Judge Wetherell recognized that an awar d should only be disturbed if it is “so inordinately large as obviously to excee d the maximum limit of a reasonable range within which the jury may properly operate” but he concluded that this standard was met in Townsend with its $10.8 million a ward to Mrs.52 Townsend. Id. at 316-17 (Wetherell, J., dissenting in part) (i nternal citations omitted). Judge Wetherell noted that the cases cited to by the plaintiff “in an attempt to justify the excessive compensatory damage award in this case involved awards to parents for the death of a child, which is a far more traumatic loss than the loss of a spouse to lung cancer after a lifetime of smoking.” Id. at 317 (footnote omitted). Judge Wetherell also stated that in Citrus County v. McQuillin, 840 So. 2d 343, 347 (Fla. 5th DCA 2003), the “Fifth District made a point of noting that the $4.4 million non-economic damage award in that case (for a 7-year-old child who lost his mother in a ‘horrific’ car accident) was ‘on the outer limit in size.’ ” Townsend, 90 So. 3d at 317. Judge Wetherell was also convinced that the jury’s ver dict was the product of passion and prejudice based on the improper and inflammatory arguments made by counsel for the plaintiff, but which were not preserved by o bjection or raised on appeal, and posited that non-economic compensatory damages to a surviving spouse similar to this case should be no higher than $5 million. Id. at 319. Based on the affirmances of $10 million and $10.8 million comp ensatory spousal damage awards in Cohen and Townsend, respectively, this Court affirmed a $10 million compensatory spousal award in Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013). Alexander is distinguishable bec ause, unlike the instant case, in Alexander there were no improper closing argum ents and Mrs. Alexander described her pain and suffering as she “nursed, care d for, and watched53 the love of her life become incontinent and unable to move or b reathe.” Alexander, 123 So. 3d at 78. The extremely high non-economic damages awards in these three cases are clearly not the norm as reflected by the following non-exclusiv e list of recent verdicts involving spousal awards for compensatory damages.

• Philip Morris USA Inc. v. Gore, No. 4D15-3892, 2018 WL 859058 (Fla. 4th DCA Feb. 14, 2014)— $2 million

. • Philip Morris USA Inc. v. Boatright, 217 So. 3d 166 (Fla. 2d DC A 2017)— $2.5 million

. • Philip Morris USA Inc. v. Barbose, 228 So. 3d 702 (Fla. 2d DCA 2017)— $10 million to estate consisting of wife and two children

. • Philip Morris USA Inc. v. Marchese, 231 So. 3d 473 (Fla. 4th DC A 2017)— $1 million

. • Gentile, Estate of v. Philip Morris USA Inc., 2017 WL 7518447 ( Fla. 15th Cir. Ct., Oct. 10, 2017)— $7 million to estate consisting of spouse and adult children

. • Sommers v. Philip Morris USA Inc., 2017 WL 3783048 (Fla. 11th C ir. Ct., June 17, 2017)— $1 million

. • Whitmire v. R.J. Reynolds Tobacco Co., 2017 WL 5006528 (Fla. 2d Cir. Ct., March 28, 2017) $3 million to estate consisting of spouse and one adult son

. • R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674 (Fla. 1st DCA 2017)— $16 million to estate consisting of spouse and son but reversed due to improper closing arguments

. • Lawrence v. R.J. Reynolds Tobacco Co., 2017 WL 4416433 (Fla. 5t h Cir. Ct., May 9, 2017)— $250,000

. • Brown v. Phillip Morris, 2017 WL 2264504 (Fla. 6th Cir. Ct., Ma rch 1, 2017)— $1.8 million

. • Lima v. R.J. Reynolds Tobacco Co., 2017 WL 2306252 (Fla. 13th C ir. Ct., April 20, 2017)— $3 million to estate consisting of spouse and four adult children

. • Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115 (Fla. 4th DC A 2017)— $3 million but reversed due to improper introduction of evidence by plaintiff

.54 • R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017)— $3.5 million

. • R.J. Reynolds Tobacco Co. v. Wilcox, 197 So. 3d 52 (Fla. 3d DCA 2016)— $7 million

. • Ledo v. R.J. Reynolds Tobacco C o., 2016 WL 8467771 (Fla. 11th C ir. Ct., Nov. 2, 2016)— $6 million to estate consisting of spouse and one adult son

. • Johnston v. R.J. Reynolds Tobacco Co., 2016 WL 8116092 (Fla. 12 th Cir. Ct., N ov. 2, 2016)— $7.5 million

. • Price v. R.J. Reynolds Tobacco Co., 2016 WL 6157876 (Fla. 4th C ir. Ct. Sept. 28, 2016)— $6.4 million

. • Konzelman v. R.J. Reynolds Tobacco Co., 2016 WL 7337376 (Fla. 11th Cir. Ct. Oct. 24, 2016)— $8.5 million

. • Cohen v. Phillip Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016)— $2,055,050 million—but reversed based on improper closing arguments

. • R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408 (Fla. 3d DCA 2016)— $5 million

. • Varner v. R.J. Reynolds, 2016 WL 6839474 (Fla. 17th Cir. Ct. Ju ly 19, 2016)— $1.5 million

. • McCabe v. R.J. Reynolds Tobacco Co., 2016 WL 5375150 (Fla. 13th Cir. Ct. May 19, 2016)— $5 million for spouse and four children

. • Nally v. R.J. Reynolds Tobacco Co., 2016 WL 6839473 (Fla. 10th Cir. Ct. May 17, 2016)— $6 million

. • R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53 (Fla. 4th DC A 2016)— $5.8 million but reversed based on improper closing argument

. • Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016 )— $2 million.

• McCoy v. R.J. Reynolds Tobacco Co., 2015 WL 12844640 (Fla. 17th Cir. Ct. July 13, 2015)— $1.5 million for spouse and eight children

. • R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015)— $10 million

. • Hardin v. R.J. Reynolds Tobacco Co., 2015 WL 10015108 (Fla. 11t h Cir. Ct. June 18, 2015)— $776,000

. • R.J. Reynolds Tobacco Co. v. Ward, 141 So. 3d 236 (Fla. 1st DCA 2014)— $487,000

. • Clayton v. R.J. Reynolds Tobacco Co., 2014 WL 8764384 (Fla. 4th Cir. Ct. March 17, 2014)— $550,000

.55 • Bowden v. R.J. Reynolds Tobacco Co., 2014 WL 8764383 (Fla. 4th Cir. Ct. March 26, 2014— $5 million

. • Johnson v. R.J. Reynolds Tobacco Co., 2014 WL 3810357 Fla. Cir. 1st Ct. July 21, 2014)— $7.3 million for spouse and one child

. • R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 201 6)— $3 million

. • Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th DCA 2013)— $4.5 million

. • Loyd v. R.J. Reynolds Tobacco Co., 2013 WL 12110278 (Fla. 13th Cir. Ct. Feb. 11, 2013)— $3.120 million for spouse and three children

. • Philip Morris USA, Inc. v. Allen, 116 So. 3d 467 (Fla. 1st DCA 2013)— $3 million

. • R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013)— $4.83 million

. • Skolnick v. R.J. Reynolds Tobacco Co., 2013 WL 6001152 (Fla. 15 th Cir. Ct. June 19, 2013)— $2.5 million

. • Sikes v. R.J. Reynolds Tobacco Co., 2012 WL 10702742 (Fla. 4th Cir. Ct. Sept. 20, 2012)— $2,165,722 million

. • R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st D CA 2011)— $5 million

. • Mack v. R.J. Reynolds, 2011 WL 1562171 (Fla. 8th Cir. Ct. March 18, 2011)— $1 million

. • R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th DCA 2011)— $1.2 million

. Wife passed away before case proceeded to trial, $1,000,000 awarded to estate (two sons). All of the cases cited above were tobacco cases, most included R.J. Reynolds as a defendant, and similar evidence was presented. The only t hings “unique” about the instant case are that, despite the jury’s finding that puni tive damages were not appropriate in this case, the jury awarded Mr. Schleider’s wife $15 million for her loss of consortium claim, which was $4 million more than the $1 1 million Plaintiffs’ counsel asked the jury to award and is the highest award to a s urviving spouse, and the lack of evidence to support such a large loss of consortium spousal award. The56 substantially higher jury award to Mr. Schleider’s wife, when c ompared with the awards to surviving spouses for non-economic damages in similar tobacco wrongful death cases demonstrate that the improper objected-to closing a rguments made by Plaintiffs’ counsel in the instant case is not harmless error—t hat there is no reasonable possibility that the improper arguments contributed to the jury’s verdict.
B. The $6 million non-economic damages award to Mr. Schleider’s no ndependent daughter Under Florida’s wrongful death statute, “[m]inor children of t he decedent, and all children of the decedent if there is no surviving spouse, m ay . . . recover for lost parental companionship, instruction, and guidance and for menta l pain and suffering from the date of injury.” § 768.21(3), Fla. S tat. ( 2014). Sect ion 768.18(2) defines a minor child as a child under twenty-five years of age. Thus, a lthough Mr. Schleider was survived by his wife, his daughter, who was twenty-two year s old at the time of her father’s death, qualifies as a minor for purposes of the wr ongful death statute, and therefore, may seek an award of non-economic (loss of conso rtium) damages. However, “[u]nder Florida law an award of non-economic damages must bear a reasonable relation to the philosophy and general trend of pr ior decisions in such cases.” Cohen, 102 So. 3d at 18 (quoting Bravo v. United State s, 532 F.3d 1154, 1162 (11th Cir. 2008)). The jury awarded Mr. Schleider’s da ughter, who was twenty-two years old and not living with her parents or financi ally dependent on them when Mr. Schleider died, $6 million. Although the issue a ddressed in this57 dissent is the effect of the Plaintiffs’ counsel’s improper arg uments on the jury, and relies on the extremely high verdicts as evidence that the erro r was not harmless, we note that our sister courts have found that awards which were i n the range awarded Mr. Schleider’s daughter, were excessive. For example, in R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 338 (Fla. 1st DCA 2012), the First District Court of Appeal reversed a $7.2 million non-economic damage award to an adult daughter as excessive after failing to uncover a single case in which an ad ult child had received a wrongful death award of that magnitude that had been affirmed on appeal and finding that the record did not support such an award because M r. Webb’s daughter was not dependent on her father’s companionship, instruction, a nd guidance when he died. Id. at 339. The Fourth District Court of Appeal also reversed the $5 milli on noneconomic damages award to Mrs. Putney’s non-dependent children in Philip Morris USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016). The Fo urth District concluded that although Mrs. Putney’s children were entitled to a consortium award, $5 million was excessive when compared with similar cases and w here none of the children lived with or relied on Mrs. Putney for support. Putn ey, 199 So. 3d at 471; see also MBL Life Assur. Corp. v. Suarez, 768 So. 2d 1129, 1136 (Fla. 3d DCA 2000) (reversing as excessive the jury’s $1 million non-economi c damages awards to each of the four children who were not residing with or fina ncially dependent58 upon their deceased father for support). Although in these cases the issue was whether the loss of cons ortium awards to the decedent’s children were excessive and thus requiring th e issuance of a remittitur, not whether the defendant was entitled to a new tri al altogether due to the plaintiff’s counsel’s improper arguments, they highlight and su pport the conclusion that the Plaintiffs’ counsel’s improper arguments in this case were not harmless, as the jury awarded Mr. Schleider’s non-dependent daughter $6 mill ion, an amount other courts have found to be excessive.
C. The trial court’s failure to sustain R.J. Reynolds’ objections is not harmless error As previously stated, the Plaintiffs have the burden to prove that their counsel’s highly inflammatory and other improper arguments to t he jury did not contribute to the verdict. Special, 160 So. 3d at 1256; see al so Calloway, 201 So. 3d at 761. In other words, the Plaintiffs must demonstrate that “there is no reasonable possibility that the error contributed to the verdict.” Id. After a review of the evidence presented in this case, which i ncluded that Mr. Schleider’s pain and suffering extended over no more than a six -month period, and a review of the loss of consortium verdicts sustained in simila r tobacco-related cases, it is impossible to conclude that there is no reasonable possib ility that the cumulative effect of the Plaintiffs’ counsel’s highly inflammatory and hig hly improper arguments did not contribute to the loss of consortium awards t o Mr. Schleider’s59 wife and non-dependent daughter. The appellate courts of this state have reversed and remanded for a new trial even where the improper arguments were less offensive than the arguments made in this case. In R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674, 683 (Fla. 4th DCA 2017), the Fourth District Court of Appeal concluded that plain tiff’s counsel’s improper arguments and comments “clearly intended to stir the p assions of the jury,” and based on the high verdict awards, it was clear that counsel ’s “misconduct had its intended effect.” See also Harbor Ins. Co. v. Miller, 487 So. 2d 46, 47 (Fla. 3d DCA 1986) (finding that the excessiveness of the award was evid ence that the prejudicial conduct complained of by the appellant influenced t he trial); Christopher v. Fla., 449 F.3d 1360, 1374 n.11 (11th Cir. 2006) (concluding that “the jury’s award of excessive damages [was] proof that Plaintiff’s counsel’s mis conduct probably influenced the jury”). A new trial is required in the instant case because the Plaint iffs’ counsel’s improper closing arguments went unchecked and were enforced and aggravated by the trial court, which either overruled R.J. Reynolds’ objectio ns, merely thanked R.J. Reynolds after R.J. Reynolds objected, asked Plaintiffs’ counse l to rephrase or move on, and denied R.J. Reynolds’ numerous requests for a side bar. As the Fourth District stated in Calloway, “the trial court’s duty was clear— to respond to such behavior by curbing multiple instances of improper argument and ensuring that the60 jury was not being led astray by repeated objectionable comment s.” Calloway, 201 So. 3d at 763. “This is especially true in lengthy, high-stake s cases where a trial court’s failure to control the litigants not only deprives the parties of a fair trial, but can ultimately result in scarce judicial resources being consum ed when the case is remanded for re-trial based on those actions.” Id. To reiterate, the cumulative effect of the following objected- to arguments made by the Plaintiffs’ counsel requires a new trial because th e Plaintiff has failed to demonstrate that there is no reasonable possibility that the y did not contribute to the extremely high consortium verdicts in this case: (1) the hi ghly inflammatory arguments, wherein Plaintiffs’ counsel asked the jurors to pict ure watching an airplane crash on CNN and focus on how bad they would feel for the families of the dead, how they would “mourn” with the families, and how “horrib le” it would be, and then to multiply that horror by three plane crashes a day f or a year, which would result in the deaths of 450,000 Americans; (2) Plaintiffs’ coun sel’s attacks upon R.J. Reynolds and its counsel for defending the case and presenting evidence of Mr. Schleider’s comparative fault; and (3) Plaintiffs’ counsel’s ar guments comparing R.J. Reynolds’ “power and wealth” to that of Mr. Schleider. T o find that these multiple improper arguments are harmless error, “encourages ‘Ra mbo’ litigators, intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate courts.” Calloway, 201 So. 3d at 764. Asking the jury to pict ure watching television61 reporting of a plane crash and to envision the mourning familie s and their “horrible loss” and then to multiply that vivid image and loss by three p lane crashes a day for a year in order to grasp the sheer magnitude of the harm caused by R.J. Reynolds, can never be harmless error. Moreover, the extremely high verd icts in this case demonstrate that the trial court’s error by not sustaining R.J. Reynolds’ repeated objections and allowing the jury to consider the Plaintiffs’ co unsel’s improper arguments had a highly prejudicial effect on the jury.
III. The Denial of R.J. Reynolds’ Motion For Remittitur The remittitur analysis differs from the analysis performed wh en evaluating whether to grant a new trial based on improper closing argument s. When a party moves for a new trial based on improper arguments made by oppos ing counsel, the opposing party has the burden of demonstrating that there is no reasonable possibility that the improper arguments did not contribute to t he verdict. This is a very high burden, and a burden that was clearly not met in this case. On the other hand, section 768.74, Florida Statutes (2014), requires a compl etely different analysis. Section 768.74 sets forth a list of factors a trial court is required to consider when determining whether an award is excessive or inadequate. A trial court’s ruling on a motion for remittitur is reviewed for an abuse of d iscretion. Engle v. Liggett Grp., Inc., 945 So . 2d 1246, 1263 (Fla. 2006). The majority has provided the factors listed in section 768.74 , so they will not62 be repeated here. Importantly, the effect of highly inflammato ry and other improper arguments upon the trier of fact is not among those factors bec ause, when it cannot be said that there is no reasonable possibility that the improp er argument did not contribute to the verdict, the law holds that the right to a fa ir trial was denied and a new trial, not a reduction of the damages, is mandated. Although a good case can be made here to support a finding tha t the trial court abused its discretion by failing to apply a remittitur to the l oss of consortium awards, such an analysis is unnecessary based on my position that a new trial is mandated because the Plaintiffs have failed to demonstrate that their co unsel’s highly inflammatory and improper arguments did not contribute to the v erdict. 

### Conclusion In many cases preceding this one, the appellate courts in this state have warned against the use of inflammatory arguments designed to invoke th e jury’s sympathy and/or anger, attacks upon the defendant or defense counsel for defending the case, and comparing the wealth and power of the defendant with that o f the plaintiff. The appellate courts have reversed verdicts where these warnings ha ve gone unheeded and where the plaintiff has not proven that there was no reason able possibility that counsel’s improper arguments did not contribute to the jury’s v erdict. Here, the Plaintiffs have not met that burden. R.J. Reynolds timely and repeatedly objected, but the trial court either overruled the objections or simply t old Plaintiffs’ counsel63 to move on, thereby permitting the jury to consider these highl y prejudicial arguments in reaching its verdicts, which are abnormally high u nder both a historical and a record analysis. If appellate court warnings are to have any meaningful effect and if fairness and confidence in the judicial system are to be preserved, this case must be reversed for a new trial free of such error. Accordingly, I respectfully dissent.