COURT FINDS CERTAIN GOLDEN RULE-TYPE ARGUMENTS IMPROPER BUT DOES NOT REVERSE BASED ON LACK OF PRESERVATION--CUMULATIVE EFFECT DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL.
Phillip Morris v. Ledoux, 42 Fla. L. Weekly 2191 (Fla. 3rd DCA October 18, 2017):
In this tobacco case, plaintiff’s counsel made several arguments during closing which the court found were improper, but did not ultimately reverse based primarily on lack of preservation.
The first objectionable comment was the attorney telling the jury that if in 1996, someone had put an ad in the paper that plaintiff had read, and said that it would pay him $10 million if he would sit and watch his wife choke, and struggle, and die in front of him, he would not have taken it. Defense counsel objected based on the fact there was no evidence of this and the objection was overruled.
Shortly thereafter, plaintiff’s counsel told the jury that if the ad continued that he would have to bury his wife and live alone for the next 19 years and the rest of his life, counsel submitted that the plaintiff would have said thank you, but keep your money. That comment was objected to and sustained.
For the third comment, plaintiff’s counsel said if there were a way that the plaintiff could have a magic wand and bring his wife back and she would walk in the door, he would take her hand and they would leave the courtroom and go home. But he was not given that option based on what the defendants had done and for that he was asking the jury to hold them accountable.
There was no objection to that comment but it was raised in the post-trial motion for new trial.
These comments, while improper, did not necessitate a new trial in this case. Additionally, the court ruled that a $10 million award in compensatory damages in this case was not “obviously” excessive or above the reasonable range within a jury might have properly operated. Therefore the court did not abuse its discretion in refusing to grant a remittitur.