In Mahfuz v. RJ Reynolds and Philip Morris, Case No. No. 4D19-2236 (FL 4th DCA, June 30, 2021), the Florida appellate court reversed a large plaintiff’s verdict ($12 million compensatory and $25 million punitive) because of inflammatory statements made by plaintiff’s counsel. This was the second time counsel was found to be out of line.
Here, the Court noted that Mahfuz’s counsel called Philip Morris a “soulless enterprise of death.” The court overruled the Tobacco Companies’ objection. But that comment was intended to achieve the same result as the comment we disapproved of in R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 761 (Fla. 4th DCA 2016). In that case, plaintiff’s counsel noted “the recklessness towards human life, the indifference towards human life. That which though, not criminal, virtually is criminal. And if you kill somebody for money . . . that’s criminal.” Id. Here, describing the Tobacco Companies as a “soulless enterprise of death” was done to inflame the jury.
Later during closing argument, counsel for Mahfuz read from George Orwell’s novel 1984. Mahfuz’s counsel compared the Tobacco Companies to Big Brother as the “totalitarian state” that “can monitor everybody.” Mahfuz’s counsel described Mahfuz as “the good guy . . . trying to overcome Big Brother.” Mahfuz’s counsel then read a passage from the novel to the jury:
And above all, we do not allow the dead to rise up against us. You must stop imagining that posterity will vindicate you, Winston. Posterity will never hear you. You’ll be lifted clean out of the stream of history. We shall turn you into a gas and pour you into the stratosphere. Nothing will remain of you, not a name in a register, not a memory in a living brain. You will have been annihilated in the past as well as in the future. You will have never existed.
After reading the passage, Mahfuz’s counsel concluded that “through this process, through your verdict, we ask you to please ensure that Rita Mahfuz, their victim, is remembered; she’s not forgotten.”
The same attorney did this once before and the Court addressed the same issue – the identical passage was read – by the same attorney, and concluded it was improper. R.J. Reynolds Tobacco Co. v. Kaplan, No. 4D18-2880 (Fla. 4th DCA, June 23, 2021) (on rehearing). In Kaplan, they did not reverse, because the verdict was less than counsel requested. But, here, they tossed it and remanded for a new trial.