WEST PALM BEACH, Fla. (Legal Newsline) - A plaintiff lawyer who compared cigarette manufacturers to Nazis and his client to a torture victim in George Orwell’s novel “1984” “went way over the line” but not far enough to require a new trial, a Florida appeals court said in a decision urging judges to keep a tighter lid on inflammatory closing arguments.
Altria’s Philip Morris unit moved for a mistrial after attorney Scott Schlesinger referred to the movie “Schindler List” in closing arguments in a lawsuit by the estate of the late Sheila Kaplan, a lifelong smoker who died of lung cancer. The jury awarded $5.1 million, including $2.97 million in punitive damages. The appeals court let the verdict stand, saying that while Schlesinger’s arguments were improper they were also apparently unsuccessful, since the jury awarded less than he was seeking.
The inflammatory comments came at the close of the first phase of a two-phase trial. Referring to the finding of liability from the so-called Engle class action that binds tobacco companies in subsequent cases in Florida, Schlesinger compared Engle to the list of Jews manufacturer Oskar Schindler tried to shelter from the Nazis in World War II,
Over repeated defense objections, Schlesinger said Schindler described his list as “an absolute good. He says the list is life.”
“This list of rulings” – the Engle findings – “for you is an absolute good,” Schlesinger told jurors.
Defense lawyers moved for an immediate mistrial, but the judge refused. Schlesinger went on to his second analogy, comparing his late client to Winston, the character in “1984” who is told by his torturer that he will disappear without a trace and no one will remember his suffering.
Again, the judge denied repeated objections as Schlesinger told jurors “when you go back there and you make this right and you do justice, you will prove that that passage will not come true for my client.”
Both comments were improper and inflammatory, the Fourth District Court of Appeal said in a Dec. 9 ruling. In a brief decision by Judge Burton C. Connor, a three-judge panel of the court said Schlesinger’s arguments fit into a pattern of inflammatory closing comments that “must be stopped to maintain public confidence in our system of justice.”
The appeals court said it has rebuked lawyers at least four times over this behavior. The Engle verdict itself was reversed by an appeals court over inflammatory comments but the Florida Supreme Court reinstated it. In what have been called Engle progeny cases, older smokers and their survivors suing in Florida don’t have to prove that cigarettes are unreasonably dangerous or that tobacco companies withheld this information and engaged in false and misleading marketing.
Jurors are free to award punitive damages, which they have done repeatedly, including in several of Schlesinger’s cases.
Defense lawyers objected immediately when Schlesinger mentioned “Schindler’s List” during the Kaplan trial, rushing to sidebar where they told the judge that they had been compared “to the Germans …to the Germans in the Holocaust.”
“That is incredible,” a defense lawyer said. “That is such a violation of proper argument,” characterizing tobacco companies “as Nazis, as being like those that killed – engaged in a genocide.”
“I didn’t get that out of it,” the judge said. “He was talking about a movie and a list.”
Schlesinger said “I didn’t compare them to Nazis.”
“You didn’t go anywhere near that,” the judge agreed.
“Holocaust is right in the middle of it,” the defense lawyer said.
“No; I mean, he didn’t go – he didn’t go there,” the judge said.
The judge similarly rejected defense objections over the “1984” analogy and the motion for mistrial.
The purpose of closing arguments is to help the jury apply the facts to the applicable law, the appeals court said. Attorneys have wide latitude but must confine their argument to the facts actually presented at trial and logical deductions from them, the court went on. Arguments “must not be used to `inflame the minds and passions of the jurors so that their verdict reflects an emotional response,’” instead of logical analysis, the court concluded.
The Schindler’s List comparison went too far, the appeals court said.
“Even a person serving on a jury who had not seen 'Schindler’s List' would make that connection, despite the fact plaintiff’s counsel did not specifically mention Germany, World War II or the Nazis,” the appeals court said. “With all due respect to the trial court, counsel not only went near that, he went way over the line.”
Schlesinger argued that no court had specifically outlawed “Schindler’s Lists” comparisons, but the appeals court rejected that reasoning. “To so hold would invite this and other courts to play `whack-a-mole’ by batting down every new and creative Nazi reference that can be devised,” the court said.
Said it is “disturbing that on at least four prior occasions, this court has addressed improper inflammatory closing arguments” by Schlesinger.
Judge Mark. W. Klingensmith, in a concurrence, said the appeals court had clearly failed to halt the practice of improper closing arguments so it was time to take “a more active role in how we deal with the misconduct of trial attorneys.” That might include reversing more verdicts, even though that penalizes the client for the lawyer’s sins. Nazi comparison, in particular, “are so outrageous that, going forward, we should hold that they constitute grounds for reversal.”
The judge concluded with the old saying that “there is no education in the second kick of the mule,” referring to the question of attorney misconduct. He didn’t say anything about the practice of allowing jurors to repeatedly award punitive damages against the tobacco companies for conduct years before, most of which has long since been outlawed under state and federal regulations.
Philip Morris didn’t immediately respond to a request for comment.