R.J. REYNOLDS TOBACCO COMPANY, ET AL.,

v.

KENNETH GLOGER, ETC.,

Third District Court of Appeal State of Florida

Opinion filed February 2, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-38 Lower Tribunal No. 11-23377 ________________

R.J. Reynolds Tobacco Company, et al., Appellants,

vs.

Kenneth Gloger, etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael and David M. Menichetti (Washington, DC); King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta, GA), for appellants.

Ratzan, Weissman & Boldt, and Kimberly L. Boldt, Stuart N. Ratzan, Stuart J. Weissman, Mario R. Giommoni and Ryan C. Tyler; Crabtree & Auslander, John G. Crabtree, Charles M. Auslander, Linda A. Wells, and Brian C. Tackenberg, for appellee.

Before EMAS, LINDSEY and GORDO, JJ.

EMAS, J.

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INTRODUCTION

In this appeal from an Engle-progeny tobacco case,¹ Philip Morris USA Inc. and R.J. Reynolds Tobacco Company appeal a final judgment entered following a jury verdict in favor of Kenneth Gloger, as personal representative of the estate of his wife, Irene Gloger. The jury awarded a total of $42.5 million in compensatory and punitive damages. Appellants, defendants below, raise several arguments on appeal. Among them is that the trial court erred in denying a cause challenge to a prospective juror thus requiring appellants to utilize a peremptory challenge to strike that juror. The prospective juror’s responses during voir dire, they argue, created at least a reasonable doubt about her ability to be impartial and to follow the law if selected to serve on the jury. We agree and reverse for a new trial.

FACTS AND BACKGROUND

During jury selection, the attorneys questioned the prospective jurors about the parties’ respective burdens of proof, and inquired if they could follow the trial court’s instructions on the law.

PROSPECTIVE JUROR⁸: Yes.

DEFENSE COUNSEL: Now, there is a time later on in the case that the defendants, when it comes to comparing the fault, that's one of – an affirmative defense we have, even though they've pled that she's at fault, we may have a burden in that regard. But

2 A plaintiff’s addiction to smoking an Engle defendant’s cigarettes containing nicotine is an element that must be proven to prevail on an Engle strict liability or negligence claim. See, e.g., Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430 (Fla. 2013); Philip Morris USA, Inc. v. Santoro, 298 So. 3d 630, 636 (Fla. 4th DCA 2020).

PROSPECTIVE JUROR⁸: Yes.

DEFENSE COUNSEL: Is it fair that you would want us to prove to you that she was not addicted if the evidence is that she smoked every day?

PROSPECTIVE JUROR⁸: No.

Given Prospective Juror⁸’s responses, the trial court made further inquiry: TRIAL COURT: Because I thought you were saying before that you felt if someone smoked every day, they're addicted, and because the tobacco company doesn't have to prove she's not addicted, it would not be fair for you to even be on the jury. Now you are saying it would be case by case. That seems to -- you want to think about it a little more.

PROSPECTIVE JUROR⁸: So I would say it would be case by case. I will take that back, and I'll say it's case by case because, yes, they can be addicted, but they could stop cold turkey if they had the willpower to do it or the proper medical care.

Defense counsel followed up to further clarify Prospective Juror⁸’s position: DEFENSE COUNSEL: And I think what the judge and I were hearing is that you would expect us to prove to you she was not addicted; is that fair?

PROSPECTIVE JUROR⁸: Yes.

DEFENSE COUNSEL: Even though we don’t have a burden?

DEFENSE COUNSEL: Okay. And that’s something because of who you are?

PROSPECTIVE JUROR⁸: Um-hum (affirmative).

At the conclusion of jury selection, defendants challenged Prospective Juror⁸ for cause, given her statements and responses during voir dire. Defense counsel argued that Prospective Juror⁸ “said that we have to disprove addiction after it was explained to her again and again that we have no burden.” The trial court disagreed with that characterization of the prospective juror’s statements, and denied defendants’ for-cause challenge.³ Gloger’s counsel countered that the juror’s testimony on addiction was merely her opinion; instead, the pertinent question was whether the juror would be “fair and impartial and listen to the evidence” which—according to counsel— the juror confirmed she would do if chosen to sit on the jury. Because the for-cause challenge was denied, defendants were required to use a peremptory challenge to strike Prospective Juror 8. Appellants eventually used their allotted peremptory challenges and requested an additional peremptory to strike another specifically identified

3 Defense counsel sought to present the trial court with a transcript of the relevant portion of Prospective Juror⁸’s statements and responses, but the trial court declined to review it.

ANALYSIS AND DISCUSSION

As the Florida Supreme Court has observed: Florida . . . adhere[s] to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.

Matarranz v. State, 133 So. 3d 473, 483 (Fla. 2013) (quoting Hill v. State, 477 So. 2d 553, 556 (Fla. 1985)). A trial court’s error in denying a for-cause challenge “cannot be harmless because it abridged appellant's right to peremptory challenges by reducing the number of those challenges available [to] him.” Hill, 477 So. 2d at 556.

4 After exhausting their allotted peremptory challenges, defendants requested an additional peremptory challenge which defendants sought to use to strike another juror whom they objected to. This request was denied by the trial court, and that objected-to juror ultimately served on the jury. This issue has thus been properly preserved. See Trotter v. State, 576 So. 2d 691 (Fla. 1990); Hedvall v. State, 283 So. 3d 901 (Fla. 3d DCA 2019).

PROSPECTIVE JUROR⁸: So I would say it would be case by case. I will take that back, and I'll say it's case by case because, yes, they can be addicted, but they could stop cold turkey if they had the willpower to do it or the proper medical care.

(Emphasis added.)

While the prospective juror responded that she would “take back” her earlier statements and would decide the question of addiction on a case-bycase basis, one cannot ignore the stark contrast with her initial responses to

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Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective jurors expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition. . . . When a juror expresses his or her unease and reservations based upon actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to “rehabilitate” a juror into rejection of those expressions—as occurred here. At no point should prospective jurors feel compelled to reject genuine feelings regarding actual life experiences because courts or counsel have engaged in a dialogue that generates embarrassment, nor should our courts empanel jurors who maintain attitudes and feelings regarding the issue currently before the court that are anything but impartial.

Matarranz, 133 So. 3d at 490. See also Hamilton v. State, 547 So. 2d 630 (Fla. 1989) (reversing first-degree murder conviction for a new trial, where prospective juror stated defendant would have to submit evidence to overcome juror’s preconceived belief of defendant’s guilt, creating reasonable doubt of her ability to follow the law and to sit as a fair and impartial juror; this reasonable doubt was not overcome by juror’s eventual

PROSPECTIVE JUROR⁸: Yes.

DEFENSE COUNSEL: Even though we don’t have a burden?

PROSPECTIVE JUROR⁸: Exactly.

DEFENSE COUNSEL: Okay. And that’s something because of who you are?

PROSPECTIVE JUROR⁸: Um-hum (affirmative).

(Emphasis added.)

CONCLUSION

The trial court erred in denying defendants’ for-cause challenge of Prospective Juror⁸ and further erred in denying defendants’ request for an additional peremptory challenge after defendants struck Prospective Juror⁸

5 During jury selection, Prospective Juror⁸ recounted that her father and grandfather had passed away from lung cancer associated with smoking.

6 Although we reverse for a new trial on this single basis, we note that one of the other issues raised by appellants was that the trial court erred in permitting plaintiff’s counsel, during cross-examination of defendants’ expert, to recite in front of the jury the contents and conclusions of a study on the harmful effects of e-cigarettes in the absence of the witness’ recognition, or the trial court’s finding, of authoritativeness. The e-cigarettes evidence was presented during the punitive damages phase of trial and relevant to appellants’ theory that they had attempted to make cigarettes safer. Section 90.706, Florida Statutes (2019) provides:

Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

The expert witness did not recognize the study as authoritative, nor did the trial court make a finding of authoritativeness. Absent the requisite predicate of authoritativeness under section 90.706, it was error for the trial court to permit plaintiff’s counsel to recite to the jury, during cross-examination of the defendants’ expert witness, “[s]tatements of facts or opinions” contained within the study on the harmful effects of e-cigarettes. Call v. Tirone, 522 So. 2d 533, 534 (Fla. 3d DCA 1988) (holding: “It is settled by statute, case law, and treatises, that statements contained in medical literature cannot be used to cross-examine a witness unless the literature is established to be a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.”); Myron By and Through Brock v. Doctors Gen. Hosp., 704 So. 2d 1083, 1092 (Fla. 4th DCA 1997) (holding “the treatises should not have been used in cross-examination unless either the expert [witness] or the trial court recognized their authoritativeness. Since

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neither did, it was error to permit cross-examination using the treatises”); Brown v. Crane, Phillips, Thomas & Metts, P.A., 585 So. 2d 947, 948 (Fla. 2d DCA 1991) (reversing for new trial, holding “it was error to permit the defense attorney to read portions of a medical text in the presence of the jury while [plaintiff’s expert] was under cross-examination. [Plaintiff’s expert] was unfamiliar with the chapter and did not recognize the text as being authoritative. Further, the defendants failed to establish independently the authoritativeness of the author or the text.”)