Philip Morris USA Inc. v. Mary Brown, as Personal Representative etc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D15-2337

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PHILIP MORRIS USA INC.,

Appellant/Cross-Appellee,

v.

MARY BROWN, as personal

representative of the Estate of

Rayfield Brown,

Appellee/Cross-Appellant.

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On appeal from the Circuit Court for Duval County.

Harvey L. Jay, III, Judge.

April 18, 2018

PER CURIAM.

AFFIRMED.

B.L. THOMAS, C.J., and BILBREY, J., concur; WINSOR, J., dissents

with opinion.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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WINSOR, J., dissenting.

The main question in this case is what happens when a

deadlocked jury is instructed to reach whatever partial verdict it

can—and to do so without any further deliberations. On the

unusual facts of this case, I would hold that such an instruction

leaves the jury incapable of producing a valid verdict. From the

time jury deliberations begin until the time the jury reaches its

final decision, jurors must be free to weigh and consider arguments

and evidence, to consider other jurors’ points of view, to attempt to

persuade fellow jurors, to argue and debate—in other words, the

jury must be free to deliberate until the very end. Because this jury

did not have that opportunity, we should reverse and remand for

a new trial.

Mary Brown filed a wrongful-death action against Phillip

Morris USA, Inc., alleging that her husband died from smoking-

related illnesses. She alleged strict liability, negligence, fraudulent

concealment, and conspiracy to commit fraudulent concealment.

The litigation lasted years: One trial was continued during jury

selection, and another ended in a mistrial after this court granted

a writ of prohibition, see Philip Morris USA Inc. v. Brown, 96 So.

3d 468 (Fla. 1st DCA 2012). A third trial ended with a deadlocked

jury.

In the next trial—the trial at issue here—the jury’s verdict

form asked (among other things) whether Philip Morris’s actions

legally caused the husband’s death, the amount of any

compensatory damages, the relative percentages of fault, and

whether punitive damages were warranted. After deliberating for

approximately four or five hours, the jury sent out a note saying it

was “stuck on the percentage” and asking “[w]hat are our options?”

After conferring with counsel, the court told the jury to follow

instructions already given. The jury continued deliberating for

some two additional hours before sending out another note. This

one explained that jurors “have not been able to agree on question

#4 [regarding comparative fault] and therefore we cannot go any

further.” After more discussion with counsel, the court delivered a

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standard Allen 1 charge, asking the jury to continue its

deliberations. But after roughly an hour more, the jury sent out

another note: “Now hung on question #2 [regarding fraudulent

concealment]. Some have change[d] their mind. It started out on

question #4. Some say yes, and some no. Now need white out for

question #2. Yesterday it was yes now today it hung [sic].”

Lawyers for both sides offered their views on how the court

should proceed. Both sides agreed the court could not give a second

Allen charge. 2 Philip Morris argued the court should grant a

mistrial since the jury could not reach consensus after its Allen

charge. Mrs. Brown, though, argued that the court should accept a

partial verdict on the issues the jury did decide. Ultimately, the

court brought the jury back and told them to return to the jury

1 An Allen charge is a supplemental instruction courts

frequently give when a jury struggles to reach a verdict. Gahley v.

State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990) (citing Allen v.

United States, 164 U.S. 492 (1896)).

2 In Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), the

Fourth District followed United States v. Seawell, 550 F.2d 1159

(9th Cir. 1977), and adopted a per se rule that giving a second Allen

charge is fundamental error. No other district in this state has

adopted this rule, Nottage v. State, 15 So. 3d 46, 49 (Fla. 3d DCA

2009), and many federal courts have explicitly rejected it, see, e.g.,

United States v. Davis, 779 F.3d 1305, 1313 (11th Cir. 2015) (“We

have never adopted a per se rule against successive Allen charges.

Other circuits have held there is not a per se rule.” (collecting

cases)). Florida’s standard jury instructions do include a comment

that the deadlock instruction “should be given only once,” but that

comment is based solely on Tomlinson, Fla. Std. Jury Instr. (Civ.)

801.3, and standard jury instructions are not binding precedent,

BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 292 (Fla.

2003); see also In re Std. Jury Instrs. in Civil Cases—Report No.

09-01 (Reorganization of the Civil Jury Instrs.), 35 So. 3d 666, 671

(Fla. 2010) (cautioning “that any comments associated with the

instructions reflect only the opinion of the Committee and are not

necessarily indicative of the views of this Court as to their

correctness or applicability”).

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room, to white out verdict-form responses on which the jury was

no longer unanimous, and to fill in answers where there was

unanimity. The court specifically told the jurors to not deliberate

any further in doing so.

After about six minutes in the jury room, the jury returned

with a partial verdict, answering two of the verdict form’s six

questions. The jury agreed that the husband was a member of the

Engle class, see Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla.

2006), and that Philip Morris’s conspiracy to conceal was a legal

cause of the husband’s death. Because the jury found liability on

one intentional-tort theory, its inability to provide verdicts on

other theories or on comparative-fault percentages was not critical,

see § 768.81(4), Fla. Stat. (2013); see also Schoeff v. R.J. Reynolds

Tobacco Co., 232 So. 3d 294, 304 (Fla. 2017) (“[T]he comparative

fault statute does not apply to Engle progeny cases in which the

jury finds for the plaintiff on the intentional tort claims.”). But

there remained the unanswered questions of the amount of

compensatory damages and whether punitive damages were

warranted.

Over Philip Morris’s objection (and motion for mistrial), the

court accepted the partial verdict and scheduled another trial to

resolve the remaining issues. At the end of that trial, the jury

awarded compensatory damages but found Philip Morris not liable

for punitive damages. Philip Morris appealed, contending that the

trial court was wrong to accept the partial verdict.

On appeal, Philip Morris’s opening position is that Florida

does not recognize partial civil verdicts, that courts must declare

mistrials whenever juries cannot agree on all issues. Philip Morris

argues that no Florida appellate court has ever sanctioned a

partial verdict like this one. But neither has Philip Morris cited a

Florida appellate decision explicitly precluding the practice.

Partial verdicts are routinely used in Florida criminal cases, see,

e.g., State v. Muhammad, 148 So. 3d 159, 159-60 (Fla. 1st DCA

2014); Avilla v. State, 86 So. 3d 511, 513 (Fla. 2d DCA 2012), and

they have been accepted in civil cases in federal courts, see, e.g.,

Kerman v. City of New York, 261 F.3d 229, 242 n.9 (2d Cir. 2001)

(“Kerman also argues that [the] decision to accept a partial verdict

was error because there is no authority for this procedure. We

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disagree. In the absence of authority prohibiting such a partial

verdict in a civil case, and Kerman cites none, we believe that at

the very least a trial judge, in the exercise of sound discretion, may

follow such a course.”); see also Bristol Steel & Iron Works v.

Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994); Bridges v.

Chemrex Specialty Coatings, Inc., 704 F.2d 175, 180 (5th Cir.

1983).

Regardless of whether partial verdicts are categorically

prohibited, I would hold that the specific circumstances of this case

warrant a new trial. With any partial verdict, there is a “risk that

the jury will ‘premature[ly] conver[t] . . . a tentative jury vote into

an irrevocable one,” United States v. Moore, 763 F.3d 900, 911 (7th

Cir. 2014); accord United States v. Wheeler, 802 F.2d 778, 781 (5th

Cir. 1986), and when a jury had been unanimous on certain points

and is later told to return to the jury room to answer whatever

questions they can—without further deliberating—some jurors

will feel compelled to vote consistent with their earlier position.

“It has long been the law that a trial court should not couch

an instruction to a jury or otherwise act in any way that would

appear to coerce any juror to reach a hasty decision or to abandon

a conscientious belief in order to achieve a unanimous position.”

Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999). In deciding

whether a court’s instructions have violated this principle, we

examine de novo the totality of the circumstances to see if the

instructions “create a serious risk of coercion.” Id. at 978.

Considering the totality of the unique circumstances here, a new

trial is warranted.

While attorneys argued about how to handle the jury’s last

note, the jury, having already changed its collective mind on some

issues, remained together in the jury room. And there is no reason

to suppose the jurors’ fluid deliberations stopped while the

attorneys argued. Cf. United States v. Byrski, 854 F.2d 955, 962

(7th Cir. 1988) (noting that “the state of jury deliberations is ever-

changing”). When later told to end their deliberations (essentially

to memorialize where they left off earlier), reasonable jurors might

not have understood their options. They might not have

understood that they were not locked into the positions they held

immediately before sending their last note—that their vote could

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accommodate any new view intervening discussions produced.

They might not have understood that their remaining duty was

more than a ministerial duty to record their earlier positions. Cf.

Harrison v. Gillespie, 640 F.3d 888, 899 (9th Cir. 2011) (explaining

that jurors’ preliminary votes can play important roles in the

deliberative process but that these informal polls “do not constitute

a final verdict”); cf. also Brutton v. State, 632 So. 2d 1080, 1083

(Fla. 4th DCA 1994) (“The court’s questioning created an

impression that the juror did not have an absolute right to recede

from her vote in the jury room during the polling process.”).

When the jurors’ last note told the court they were “hung” on

some issues, no juror was then obligated to maintain his or her

tentative vote on any issue. See United States v. Straach, 987 F.2d

232, 243 (5th Cir. 1993) (“[A] jury has not reached a valid verdict

until deliberations are over . . . .” (quoting United States v. Taylor,

507 F.2d 166, 168 (5th Cir. 1975))). Yet any juror wanting to

explain (or even identify) his or her changed view would feel

restricted by the court’s specific instruction to cease deliberations.

To the point of the final instruction, juror deliberations had been

fluid—the jury found (and then lost) agreement on some issues—

but by precluding further deliberations, the court precluded

further opportunities for additional changed minds. Cf. Straach,

987 F.2d at 243 (noting that “continuing deliberations may shake

views expressed on counts previously considered” (quoting Taylor,

507 F.2d at 168)).

It is no answer to say that the jury was polled, with each juror

announcing that the verdict was his or her own. The question is

not whether all jurors did, in fact, vote for the ultimate verdict; the

question is whether all jurors did so knowing they could change

their minds—or try to change others’ minds. The subsequent poll

offers therefore no cure. See Moore, 763 F.3d at 910 (determining

that trial court’s error in instructing jury to return a partial verdict

while deliberations were ongoing was not cured by polling of the

jury).

For these reasons, I would reverse and remand for a new trial.

This would make it unnecessary to address Philip Morris’s

independent argument that alleged juror misconduct requires a

new trial. As to Mrs. Brown’s conditional cross appeal, I would

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reject Philip Morris’s Tipsy Coachman arguments, and I would

hold that Mrs. Brown may seek punitive damages on her

negligence and strict-liability claims in a new trial. See Soffer v.

R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1221 (Fla. 2016). But

Mrs. Brown asserted she would abandon her cross appeal if she

prevailed in the main appeal, which—despite my view—she now

has.

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Amir C. Tayrani of Gibson, Dunn & Crutcher LLP, Washington,

DC; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC;

Hassia Diolombi and Kenneth J. Reilly of Shook, Hardy & Bacon

LLP, Miami; and W. Edwards Muñiz of Shook, Hardy & Bacon

LLP, Tampa, for Appellant/Cross-Appellee.

John S. Mills and Courtney Brewer of The Mills Firm, PA,

Tallahassee; and John S. Kalil of Law Offices of John S. Kalil, P.A.,

Jacksonville, for Appellee/Cross-Appellant.

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