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MIAMI (Legal Newsline) - A Florida appeals court reversed a $42.5 million verdict against R.J. Reynolds Tobacco, ruling the trial judge should have excused a juror who said she believed cigarettes are addictive.
Holding a strict line on the perception or reality of juror bias, the Third District Court of Appeal said R.J. Reynolds should have been able to strike Juror No. 8 for cause after she said during jury selection that “it’s an addiction” if people smoke every day.
The tobacco company used one of its preemptory challenges to remove Juror No. 8 and then argued it was subjected to an unfair trial after it used up its remaining challenges and sought to have one more juror removed from the panel.
The case was among the so-called Engle progeny, in which Florida plaintiffs are relieved from proving most elements of lawsuits over smoking-related illness but still must prove they were addicted. The jury awarded $15 million in compensatory damages and $27.5 million in punitives against Reynolds and Philip Morris.
Reynolds appealed the verdict, saying it shouldn’t have been forced to use one of its own challenges to remove the juror. The appeals court agreed, saying “there was plainly a reasonable doubt about Prospective Juror 8’s ability to be fair and impartial and to follow the law.”
Asked during jury selection if every smoker is addicted, No. 8 said “If they smoke every day, I do feel it’s an addiction.” A defense lawyer then asked her if she understood Reynolds had no obligation to prove the plaintiff wasn’t addicted, to which she said “yes.” Questioned further by the judge, she said “it’s case by case because, yes, they can be addicted, but they could stop cold turkey if they had the willpower.”
The defense lawyer then asked if she “would expect us to prove that she was not addicted; is that fair?” “Yes,” the woman responded. “Even though we don’t have a burden?” “Exactly.”
While the woman later said she would “take back” her earlier statements, “one cannot ignore the stark contrast with her initial responses,” the appeals court said. Quoting a 1996 decision, the court said, “if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.”
In a footnote, the court also noted that Reynolds objected to the trial judge allowing a plaintiff lawyer to discuss a study about the alleged harmful effects of e-cigarettes while cross-examining a defense witness about the company’s efforts to produce safer cigarettes. The lawyer introduced the study without establishing it was authoritative during the punitive damages phase of the case.
The appeals court cited several other court decisions holding it was error to allow lawyers to use studies that haven’t been authenticated while they are cross-examining expert witnesses.