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Philip Morris USA, Inc. v. Antonio Cuculino, Case Nos. 3D14-1339 & 3D14-823 (3rd DCA)

In Cuculino, the Third DCA affirmed a final judgment in favor of the plaintiff entered after a jury trial, finding no reversible error. Following a two week jury trial, the jury returned a verdict exonerating RJ Reynolds, and finding against Philip Morris, but allocating sixty percent fault to the plaintiff. The jury awarded $12.5 million. The trial court later denied Philip Morris’s motions for a new trial, and entered judgment in the amount of $5 million. On appeal, Philip Morris argued that the trial court erred in not granting a new trial based on the plaintiff’s counsel’s improper and prejudicial comments during closing argument. The Third DCA agreed that counsel’s comments were improper, but did not find reversible error because the comments were not so highly prejudicial and inflammatory that Philip Morris was denied its rights to a fair trial.

During closing argument, the plaintiff’s attorney explained to the jury that people get paid for the time they work. He said that those people include actors, who make “astronomical sums,” professional athletes, who make “tremendous sums,” and expert witnesses, who make $750 per hour. The trial court sustained the defense’s objection. The plaintiff’s attorney then argued that Philip Morris and RJ Reynolds gave the plaintiff the “job” of suffering “from progressive heart disease,” and he deserves to get paid for this “job.” The attorney then said, “You know, what is it that’s going to be a just and appropriate figure? Who in their right mind would want to trade places with Mr. Cuculino and take this job.” The trial court sustained another defense objection. The attorney then immediately said, “Would someone do it for a million dollars an hour? Probably not. Would someone do it for anything? Probably not.” The defense objected and moved for a mistrial. The trial court sustained the objection, and instructed the jury that only the jury gets to choose or determine what is fair and adequate compensation. The trial court did not instruct the jury to disregard the comments, and Philip Morris did ask that it do so.

The Third DCA found that these comments were improper, and said that trial counsel would be “well-advised” not to utilize those arguments in the future. However, the Third DCA agreed with the plaintiff that the comments were not so highly prejudicial and inflammatory that Philip Morris was denied its right to a fair trial. If the issue of an opponent’s argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial. Philip Morris argued that the comments were so highly prejudicial and inflammatory based on what it described as an excessive $12.5 million verdict. The Third DCA disagreed. The Third DCA pointed out that a jury may properly award damages equal to or in excess of the amount requested by counsel in closing argument. The court further noted that the magnitude of a damage award, without more, is no indication that the jury was motivated by improper consideration in arriving at the award. The Third DCA found that the verdict reflected that the jury was not inflamed or highly prejudiced by the comments, because the it did not find completely in favor of the plaintiff. The jury exonerated one defendant, and apportioned substantial fault to the plaintiff. The Third DCA additionally listed the substantial and significant medical care the plaintiff needed, demonstrating a nexus between the evidence and the verdict. Accordingly, the comments of the plaintiff’s counsel were not so highly prejudicial and inflammatory that Philip Morris was denied its right to a fair trial.


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