188 So. 3d 53
Fla. Dist. Ct. App.2016Background
- This is an appeal from a jury verdict in favor of the Estate of Frank Gafney against R.J. Reynolds (successor to Lorillard) for damages related to decedent’s nicotine addiction, lung cancer, and death.
- Jury found addiction and causation, apportioned fault (33% Reynolds, 33% Lorillard, 34% decedent), and awarded $5.8 million in compensatory damages; punitive damages were to be addressed later if required.
- During closing, plaintiff’s counsel repeatedly urged the jury that the compensatory verdict should be a “call to action,” telling jurors the verdict must “speak loud and speak clear” and proposing a $10 million figure for compensation.
- In closing, plaintiff’s counsel also suggested the defense and its lawyers were tied to a co‑conspirator (the Tobacco Institute) and criticized the defense’s conduct as part of a larger scheme; defense moved for mistrial.
- The trial court reserved on the mistrial motion, overruled some objections, and ultimately denied post‑verdict motions; the Fourth District reversed and remanded for a new trial based on closing‑argument misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether urging jurors to “send a message” via the compensatory award was improper | Such rhetoric is appropriate to convey harm and community interest; plaintiff had both compensatory and punitive issues pending | Argument improperly invited punishment through compensatory damages and risked injecting punitive considerations into compensatory award | Court held the “call to action”/"speak loud and clear" appeals were improper when tied to compensatory damages and warranted reversal |
| Whether suggesting a specific compensatory amount ($10M) was improper | Proposed figure was a fair advocacy for appropriate compensation | Arguing a dollar figure as a punitive message improperly conflates compensatory and punitive purposes | Court treated the figure as part of the improper send‑a‑message plea and prejudicial |
| Whether counsel’s remarks attacking defense counsel as co‑conspirators or participants in a scheme were permissible | Plaintiff claimed he was contrasting evidence and not accusing defense counsel of criminal conduct | Defense argued the comments were ad hominem, irrelevant, and urged jurors to distrust opposing counsel—poisoning the jury against defense | Court held the attack on opposing counsel and implication of a conspiracy were improper and highly prejudicial, warranting reversal |
| Whether error was harmless | Plaintiff argued curative instruction and clarifications cured any prejudice | Defense argued the remarks were so inflammatory they likely affected the verdict and no instruction could cure it | Court found no reasonable possibility errors were harmless and ordered a new trial |
Key Cases Cited
- Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006) (distinguishes compensatory v. punitive damages; punitive damages serve punishment and deterrence)
- Ocwen Fin. Corp. v. Kidder, 950 So.2d 480 (Fla. 4th DCA 2007) ("send a message" argument permissible when punitive claims are before the jury, but limited)
- Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552 (Fla. 3d DCA 2000) ("tell them by your verdict" remarks categorized as improper send‑a‑message arguments)
- W.R. Grace & Co.--Conn. v. Waters, 638 So.2d 502 (Fla. 1994) (explaining punitive damages policy of punishment and deterrence)
- Wicklow v. State, 43 So.3d 85 (Fla. 4th DCA 2010) (personal attacks on opposing counsel can be fundamentally prejudicial)
- Henry v. Beacon Ambulance Serv., Inc., 424 So.2d 914 (Fla. 4th DCA 1982) (curative instruction sometimes insufficient to erase prejudice from improper argument)