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WEST PALM BEACH, Fla. (Legal Newsline) – The judge handling a tobacco trial in Florida was wrong to let eight possible jurors go when trying to get the jury pool down to 100 – the maximum capacity of the courtroom.
Tasked with picking a jury out of 189, Palm Beach County judge Cymonie Rowe should have allowed plaintiffs lawyers suing Philip Morris to question the eight to see if they could be rehabilitated - despite their anti-tobacco positions - the Florida Fourth District Court of Appeal ruled on Oct. 28.
The wrongful death case of Bette Cash is one of the Engle progeny cases in which smokers in Florida were allowed to pursue lawsuits against the tobacco industry. The trial resulted in a $50,000 verdict that was cut in half pursuant to a deal between plaintiffs and defense lawyers, but that result is now stricken and a new trial is ordered.
At issue in the appeal were the responses in a questionnaire of eight jurors that led Philip Morris to ask that they be excused outright. Plaintiffs lawyers at Dolan Dobrinsky and Gordon & Partners objected to their dismissal, but Judge Rowe sent them packing.
The question: Have you heard, or read, or followed any media reports (including television, radio, magazine, or newspapers), advertisements, or social media concerning litigation or other actions taken against the tobacco industry and/or cigarette, or anything related to tobacco industry conduct?
The eight responses:
-“I’m a smoker. I think Tobacco Industry is helping to keep my addiction.”;
-“Vague statements in media about cigarette companies and their audience. I feel cigarette companies have been predatory.”;
-“They don’t tell the truth, even under oath & CEO’s too.”;
-“Big tobacco knows they are selling products that kill and as pressure mounts in the US against them they ramp up selling to the third world.”;
-“I believe the tobacco companies knew the dangers of what smoking could do to people and felt money + profit were more important.”;
-“I do not like anything related to tobacco due to the fact that I believe my family/me died or got ill due to tobacco. I read on social media and newspapers as well as watched news stories.”;
-“I remember reading an article on abolishing smoking. I agree, as the tobacco industry has taken advantage of the public for profit. Their product is life-threatening and causes more harm.”; and
-“I personally feel cigarettes should be outlawed. Children are getting addicted. I was personally affected from my stepdad’s smoke.”
The appeals court ruled that it isn’t “conclusively clear” that the jurors couldn’t be impartial based on these statements alone.
“While trial courts are vested with discretion to place limitations on the scope and extent of counsel’s right to voir dire, it is not within the trial court’s discretion to take away that right where it is not conclusively clear that the jurors cannot be impartial,” Judge Spencer Levine wrote.