Choose a Topic

View Our Case Results
Kelley/Uustal Practice Areas

R.J. Reynolds Tobacco Co. v. Kathleen Gafney, as Personal Representative, Case No. 4D13-4358 (4thDCA)

In Gafney, the Fourth District reversed a judgment entered in favor of the plaintiff in a tobacco wrongful death suit based on improper closing argument. Specifically, the Fourth District found that the plaintiff made improper send a message arguments, and improperly insinuated that the defendant’s attorneys were involved in a conspiracy to conceal the addictive nature of smoking.

During closing argument in the first phase of a bifurcated trial, addressing liability, compensatory damages and whether there was a right to punitive damages, the plaintiff’s counsel repeatedly stated that the jury’s verdict “must speak loud and it must speak clear.” The attorney also advised the jury that the compensation portion of the verdict form was its “call to action.” During closing argument, the plaintiff’s counsel also stated that if the jury wanted to know “why the defense in these cases consistently tries to recast the jury instructions and the questions on the verdict form, you have information that helps you from one of their co-conspirators, and that’s the Tobacco Institute.”

The Fourth District began by noting that if “the issue of an opponent’s improper 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.” Send a message arguments are defined as those that ask a jury to award money not based on the proof supporting the proper recoverable damages allowed in a wrongful death action, but to remedy wrongful, intentional, as opposed to negligent, conduct, and those arguments that suggest to the jury that a significant verdict will send a message to stop such experiences from happening and will make others less likely to act irresponsibly. Send a message arguments are inappropriate when utilized in a way that links the argument to a compensatory damage award, and not to the entitlement to, or amount of, punitive damages. The Fourth District here found that the plaintiff’s counsel’s send a message argument was specifically related to compensatory damages, and mentioned when addressing the compensatory damages questions on the verdict form. The court further noted that even when both compensatory and punitive damages are at issue, “a plaintiff may not utilize send a message and conscience of the community arguments when discussing whether the plaintiff should be compensated, due to the potential for the jury to punish through the compensatory award.”

In addition, the Fourth District noted that comments by counsel must be directed to the strength of the evidence, and not amount to an ad hominem attack on opposing counsel for being part of a purported theme to mislead. The Fourth District found that counsel’s comments in this case as to the “defense” was directed to the defendant’s attorneys, particularly because the comments mentioned formulation of jury instructions and verdict forms. Accordingly, the comments insinuating that the defense was involved in a conspiracy with the Tobacco Institute were found to be improper by the Fourth District.


Recognized as One of the Nation's Best Law Firms

Don't just take our word for it. See it for yourself.

Client Reviews & Testimonials
  • AV Peer Review Rated
  • Florida Super Lawyers
  • South Florida Top Rated Lawyers
  • Best Law Firms
  • The Best Lawyers in America
  • The National Trial Lawyers - Top 100 Trial Lawyers
  • South Florida Business Journal - 2017  Best Places to Work
  • Sun Sentinel - 2017 Top Work Places
© 2014 All Rights Reserved The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.