Appeals court: Hillsborough judge should have excused juror, sends tobacco suit to new trial

By Florida Record | Mar 13, 2019

TampAGS, for AGS Media [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)]

LAKELAND – Florida's Second District Court of Appeal has ordered a new trial in a lawsuit brought by the estate of a man who sued tobacco products maker Philip Morris USA, as the appeals panel ruled a Hillsborough County judge improperly refused to allow the plaintiff's lawyers to dismiss for cause a potential juror who said he believed the man's illnesses were caused by his choice to smoke.

In its opinion filed March 1, the appeals court held the trial court abused its discretion in failing to excuse a juror for cause, forcing the plaintiff, the estate of Donald Pearson, to exhaust its peremptory challenges in the so-called Engle progeny case claiming cigarette use caused serious illnesses and death. 

Justices Craig Villanti and Robert Morris concurred in the opinion reversing and remanding for a new trial in Hillsborough County Circuit Court, saying the trial court wrongfully forced the estate to exhaust its peremptory challenges.

During juror questioning, attorneys for the plaintiffs purportedly asked jurors: “When you noticed that a guy who smoked cigarettes, smoked them until (sic) he got ill and finally he died from smoke, and today his family is suing the cigarette firm that sold those smokes, how a many of you stated, 'What? What? Why?'" 

Several potential jurors agreed with the response to the query, including the juror in question, court filings said. 

When separately questioned about his reply, the juror voiced the notion that several questions would have to get replies for the estate "to proceed."  The juror felt smoking to be an option, "something they simply choose to do on their own instead of actually being pushed to it one way or the other."  In addition, the juror said that he thought he could continue to keep a open mind and listen to the signs, however the estate; "would have an uphill argument to make."

The Pearson estate sought to excuse the juror for cause.

The lower court awarded a number of cause challenges to potential jurors, a few predicated on the their remarks with regard to smoking becoming a conscious choice and that the estate started at a disadvantage or using a strike against it.  After hearing argument from both parties, Hillsborough County Circuit Judge Paul Huey denied the challenge.

The plaintiffs are represented in the case by attorneys Thomas J. Seider, Celene H. Humphries and Maegen P. Luka, of Brannock & Humphries, of Tampa; Eric D. Roslansky, of The Ruth Law Team, of St. Petersburg; and Lee D. Gunn IV, of Gunn Law Group P.A., of Tampa.

Philip Morris is represented by attorneys Cathy A. Kamm, of Shook, Hardy & Bacon LLP, of Tampa; and David M. Menichetti and Geoffrey J. Michael, of Arnold & Porter Kaye Scholer LLP, of Washington, D.C.

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Organizations in this Story

13th Judicial Circuit Court - Hillsborough County Arnold & Porter Kaye Scholer Brannock & Humphries Florida Second District Court of Appeal Gunn Law Group, PA Shook, Hardy, & Bacon Llp The Ruth Law Team

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