Non-economics are the jury’s job

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 7

CASES FROM THE WEEK OF FEBRUARY 15, 2019

COMMENTS IN PLAINTIFFS’ COUNSEL’S CLOSING IN A TOBACCO CASE FELL SHORT OF DENYING DEFENDANT ITS RIGHT TO A FAIR TRIAL, AND DID NOT WARRANT A NEW TRIAL--AWARDS OF NON-ECONOMIC DAMAGES OF $15 MILLION TO A SPOUSE AND $6 MILLION TO SURVIVING 22-YEAR-OLD DAUGHTER WERE NOT EXCESSIVE.

R.J. Reynolds v. Schleider, 44 Fla. L. Weekly D425 (Fla. 3rd DCA December 26, 2018):

During the closing argument in a trial where the evidence presented indicated that the tobacco industry spent approximately $250 billion between 1940 and 2005 to promote and advertise cigarettes, and had organized lobbying efforts and attempted to conceal the hazards of smoking (and additional evidence that came from R.J. Reynolds own corporate representative who testified that between 400,000 to 480,000 people were dying each year from smoking cigarettes), plaintiff made closing arguments regarding entitlement to punitive damages.

According to the court, the arguments dramatized the number of deaths caused by cigarettes and the size of the sum spent to promote smoking and conceal its dangers. He noted that 450,000 deaths equated to three plane crashes every day for a year, and asked the jury to compare the attempts of the decedent--an individual addicted to nicotine--to stop smoking with the $250 billion spent by the tobacco industry with all their power and money encouraging him to smoke.

While this was a corrected opinion (I am not sure what the corrections were--I reported on it several weeks ago) the court spoke of the evidence that the jury heard regarding the loss suffered by the decedent’s wife and his 22-year-old daughter. The decedent and his wife had been married for 30 years and his death came shortly after they commenced their retirement in the Florida Keys. The jury heard that the daughter was 22-years-old when her father died, but he had been a stay-at-home parent who raised her, and she followed her parents to the Keys first living with them, and then living near them.

The daughter saw her father continually and provided care for him up to his death. At her wedding, she had refused to have anyone else walk her down the aisle in her father’s absence.

In closing argument, plaintiff’s counsel had requested non-economic damages for $11 million to the wife and $7 million to the daughter, informing the jury that it could go lower or higher on its award. The jury ultimately awarded $15 million in non-economic damages to the wife and $6 million to the daughter, but refused to award punitive damages. Plaintiffs’ counsel requested the jury find R.J. Reynolds 87.5% at fault and the decedent 12.5% at fault. Instead, the jury found R.J. Reynolds 70% at fault and the decedent 30%.

The court observed that plaintiffs’ counsel’s comments during closing argument could be considered to be “close to the limits of what is acceptable” and could possibly justify reversal in a different context. In the context of this particular trial, the court found the comments did not rise to the level requiring reversal.

The court’s ruling was supported by the fact that after a three week trial, and closing arguments on a Friday, the jury returned on Monday, deliberated for two days, and then ultimately refused to award punitive damages against R.J. Reynolds. It also awarded less than the compensatory amount requested for the daughter, attributed a higher percentage of comparative negligence to the decedent than what was asked for. As the court explained, those actions by the jury strongly indicated that it was not inflamed with prejudice, or improperly misled by closing arguments.

The court cited to Odom, the supreme court’s recent watershed case espousing the great deference that juries get in awarding non-economic damages. One judge did write a lengthy and detailed dissent.

TRIAL COURT ORDER PRELIMINARILY, OVERRULING OBJECTIONS TO DISCOVERY BASED ON WORK-PRODUCT PRIVILEGE, DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW--CLAIM OF WORK-PRODUCT PROTECTION NOT PROPERLY PRESERVED FOR REVIEW UNTIL PRIVILEGE LOG IS FILED, AND NON-PARTIES CAN STILL SEGREGATE DOCUMENTS CLAIMED TO BE PRIVILEGED AND REQUEST AN EVIDENTIARY HEARING.

Dade Trust Co. v. Beaty, 44 Fla. L. Weekly D381 (Fla. 3rd DCA February 9, 2019):

The defendant in an auto case was driving a tractor trailer owned by his employer. Defendants had listed a private investigator as a fact witness, and he was issued a subpoena duces tecum for a deposition.

The investigator appeared for the deposition without objection. He testified that he was hired to make personal observations of traffic at the accident site. His deposition was adjourned to reconvene at a later date so that he could give further opinions.

Plaintiffs then issued a notice of non-party production directed at the witness, to which defendants later objected. At the hearing, the defendants asserted work-product privilege, and stated that they had removed the investigator from their witness list. While defendant would not state that it was their intention to permanently withdraw the witness from its witness list, the court overruled the objections and authorized the issuance of the subpoena.

The defendants then filed objections to some of the requests for production, and raised work-product privilege to some of the production requests. They never filed any privilege log and the court overruled the objections and required the production within ten days, resulting in this petition for writ of certiorari.

Ultimately, the court found that the trial jury’s order was a preliminary ruling that the information was discoverable, and noted that privileges claimed with regard to specific documents had to be affirmatively asserted through the filing of a privilege log or--if involving a non-party--then through the segregation of documents claimed to be privileged, for further consideration by the trial court.

As such, the trial court orders overruling the objections compelling the discovery did not depart from the essential requirements of law because the ruling was actually preliminary.

TRIAL COURT APPLIED THE WRONG VERSION OF THE PUNITIVE DAMAGES STATUTE TO THIS WRONGFUL DEATH TOBACCO CASE.

R.J. Reynolds v. Sheffield, 44 Fla. L. Weekly D408 (Fla. 5th DCA February 8, 2019):

The court ruled that the proper version of the punitive damages statute is the 1999 version of section 768.73 which was in effect when the wrongful death cause of action accrued based on the decedent’s death. The trial court had erroneously applied the pre-1999 version of the statute based on the time that the Engle class was recertified. That was error in light of the plain language of the statute.

The big issue in that case was the difference between when a cause of action “accrues” and when it “arises.” The court went on to write that Florida law is clear that a cause of action for wrongful death accrues on the date of the decedent’s death.