SUPREME COURT OF FLORIDA Case No.: SC HEATHER IRIMI, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DALE MOYER, Petitioner,

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1 Filing # E-Filed 11/28/ :32:54 PM SUPREME COURT OF FLORIDA Case No.: SC HEATHER IRIMI, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DALE MOYER, Petitioner, v. RECEIVED, 11/28/ :33:25 PM, Clerk, Supreme Court R.J. REYNOLDS TOBACCO CO., ET AL., Respondents. AMICUS BRIEF OF THE FLORIDA DEFENSE LAWYERS ASSOCIATION IN SUPPORT OF RESPONDENTS KANSAS R. GOODEN Florida Bar No.: kgooden@boydjen.com BOYD & JENERETTE, PA 201 North Hogan Street, Suite 400 Jacksonville, Florida Chair of the FDLA s Amicus Committee J. RICHARD CALDWELL, JR. Florida Bar No.: dcaldwell@rumberger.com TIMOTHY A. HARVEY, JR. Florida Bar No.: tjharvey@rumberger.com RUMBERGER, KIRK & CALDWELL, PA 100 North Tampa Street, Suite 2000 Tampa, Florida CANDY L. MESSERSMITH Florida Bar No.: cmessersmith@rumberger.com RUMBERGER, KIRK & CALDWELL, PA Post Office Box 1873 Orlando, Florida COUNSEL FOR FLORIDA DEFENSE LAWYERS ASSOCIATION

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF IDENTITY AND INTEREST... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 I. THIS COURT SHOULD DISCHARGE JURISDICTION AS THERE IS NO EXPRESS AND DIRECT CONFLICT II. THE DECISION OF THE FLORIDA FOURTH DISTRICT COURT OF APPEAL, AFFIRMING THE ORDER GRANTING A NEW TRIAL, WAS CORRECT CONCLUSION...18 CERTIFICATE OF SERVICE...20 CERTIFICATE OF COMPLIANCE...21 i

3 TABLE OF CITATIONS CASES Bateman v. State, 446 So. 2d 97 (Fla. 1984)... 3 Carney v. Stringfellow, 74 So. 866 (Fla. 1917)... 6 Castlewood Intern. Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975)...7, 17 Castor v. State, 365 So. 2d 701 (Fla.1978)...14 Ciongoli v. State, 337 So. 2d 780 (Fla. 1976)... 3 City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989)...14 Department of Health and Rehabilitative Services v. Nat l Adoption Counseling Services, Inc., 498 So. 2d 888 (Fla. 1986)... 5 Fla. Dep t of Children & Families v. Davis Family Day Care Home, 160 So. 3d 854 (Fla. 2015)... 2 Fla. Power Corp. v. Smith, 202 So. 2d 872 (Fla. 2d DCA 1967)...11 Fleckinger v. State, 642 So. 2d 35 (Fla. 4th DCA 1994)...15 Four Wood Consulting, LLC v. Fyne, 981 So. 2d 2 (Fla. 4th DCA 2007)...10 Fusso v. Clark, 147 So. 2d 1 (Fla.1962)... 7 Gandy v. State, 846 So. 2d 1141 (Fla. 2003)... 2 ii

4 Green v. State, 575 So. 2d 796 (Fla. 4th DCA 1991)...10 Howard v. State, 869 So. 2d 725 (Fla. 2d DCA 2004),...4, 15 In re Holder, 945 So. 2d 1130 (Fla. 2006)... 2 Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789 (Fla. 4th DCA 2018)... 4, 5, 9, 12, 13 King v. Byrd, 716 So. 2d 831 (Fla. 4th DCA 1998)... 7 LaFleur v. Castlewood Intern. Corp., 294 So. 2d 21 (Fla. 3d Dist. App. 1974)...17 Lavado v. State, 469 So. 2d 917 (Fla. 3d DCA. 1985)... 8 Lavado v. State, 492 So. 2d 1322 (Fla. 1986)... 8 Matarranz v. State, 133 So. 3d 473 (Fla. 2013)...11 Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA 1997)...15 Montecristi Condo. Ass n, Inc. v. Hickey, 408 So. 2d 671 (Fla. 4th DCA 1981)...10 O Connell v. State, 480 So. 2d 1284 (Fla. 1985)...11 R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016)... 9 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 iii

5 Rhodes v. State, 638 So. 2d 920 (Fla. 1994)... 5 Ritter v. Jimenez, 343 So. 2d 659 (Fla. 3d DCA 1977)...8, 11 Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986)... 5 Thigpen v. United Parcel Services, Inc., 990 So. 2d 639 (Fla. 4th DCA 2008)...16 Trans Health Mgt. Inc. v. Nunziata, 159 So. 3d 850 (Fla. 2d DCA 2014)... 9 Van v. Schmidt, 122 So. 3d 243 (Fla. 2013)... 3 Wilson v. The Krystal Co., 844 So. 2d 827 (Fla. 5th DCA 2003)... 7 Wolkowsky v. Goodkind, 143 Fla. 467, 14 So. 2d 398 (Fla. 1943)...6, 14 OTHER AUTHORITIES Florida Constitution, Article V, Section 3(b)... 2 Florida Rule of Civil Procedure 1.431(b)...8, 11 Gerald Kogan and Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev (1994)... 6 Judge Roger M. Young, Using Social Science to Assess the Need for Jury Reform in South Carolina, 52 S.C. L. Rev. 135 (2000)...12 iv

6 STATEMENT OF IDENTITY AND INTEREST This amicus curiae brief is submitted by the Florida Defense Lawyers Association ( FDLA ) in support of Respondent R.J. Reynolds Tobacco Company. FDLA is a statewide organization, formed in 1967, of defense attorneys and has a membership of over 1,000 members. Among the aims of FDLA and its members are improv[ing] the adversary system of jurisprudence and... the administration of justice. FDLA maintains an active amicus curiae program in which FDLA members donate their time and skills to submit briefs in important cases pending in state and federal courts. FDLA screens those cases for their content of significant legal issues which affect the defense bar or the fair administration of justice. This case has the potential to carry statewide impact in light of the far reaching implications associated with Petitioner s request for this Court to ignore the superior vantage point of the trial court, to supplant Florida s long-standing abuse of discretion standard of review for a trial court s grant of a new trial, and to deny a defendant the right to inquire of potential jurors. SUMMARY OF THE ARGUMENT It is well-established that a trial court is in the best position to adjudicate a motion for new trial based upon events during the trial, and its determination can only be reversed when that court abuses its discretion. No conflict jurisdiction 1

7 exists in this case, so the matter must be discharged as jurisdiction was improvidently granted. Further, the decision of the Florida District Court of Appeal, Fourth District, affirming the Order granting a new trial, is in accordance with Florida law as enunciated by this Court and several district courts of appeal. Thus, the decision under review must be affirmed in any event. Any other result would deny defendants a right to question potential jurors and deny them a right to a fair trial. ARGUMENT I. THIS COURT SHOULD DISCHARGE JURISDICTION AS THERE IS NO EXPRESS AND DIRECT CONFLICT. None of the decisions identified by Petitioner conflict with the decision under review. The Florida Supreme Court is a court of limited jurisdiction which jurisdiction extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). This Court has recognized that its jurisdiction, which is outlined in the Florida Constitution, is a threshold matter that must be addressed before [the Court] can decide the merits of a case. See In re Holder, 945 So. 2d 1130, 1134 (Fla. 2006). To meet this standard, in the context of conflict jurisdiction, the cases alleged to be in conflict must not be distinguishable from one another, cf. Fla. Dep t of Children & Families v. Davis Family Day Care Home, 160 So. 3d 854, 2

8 855 n.1 (Fla. 2015) (opining that the district court s certification of conflict was misguided because the two cases were distinguishable), and they must decide meaning reach a holding on the same question of law, see Ciongoli v. State, 337 So. 2d 780, 781 (Fla. 1976) (discharging jurisdiction where the conflicting language [was] mere obiter dicta ). Also, the conflict must appear within the four corners of the district court s decision. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Here, however, a review of the cases pointed to by Petitioner as being in conflict reveal that the decisions are legally and factually distinguishable such that this Court lacks jurisdiction to review the instant matter. See, e.g., Bateman v. State, 446 So. 2d 97, 97 (Fla. 1984) ( After reading the briefs on the merits and hearing oral argument, we conclude that the... decision before us does not expressly and directly conflict with [another district court decision]. ). For example, in Van v. Schmidt, 122 So. 3d 243, 247 (Fla. 2013), this Court held that an appellate court properly applies a de novo standard of review to a trial court s conclusions of law in an order granting a new trial based on the manifest weight of the evidence, giving no deference to the trial court s legal conclusions. In that case, the trial court erroneously held that the jury could not reject the uncontroverted testimony of the experts. Here, however, the Fourth District Court of Appeal reviewed the trial court s granting of a new trial after the trial 3

9 court concluded it had erred in dismissing numerous jurors without allowing the defense an opportunity to attempt to question the jurors. The Fourth District found that the trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire and appropriately gave deference to the trial court s decision. No issues of expert testimony were involved. Because Van v. Schmidt and the case under review address different legal and factual issues, no conflict exists. Nor does the Second District Court of Appeal s decision in Howard v. State, 869 So. 2d 725 (Fla. 2d DCA 2004), conflict with the case under review. The Second District in Howard held: The court s failure to allow counsel to inquire into a prospective juror s potential biases amounts to an abuse of discretion warranting reversal unless it becomes conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant. Id. at 727. In the decision under review, the Fourth District likewise held: [But, t]he court s failure to allow counsel to inquire into a prospective juror s potential biases amounts to an abuse of discretion warranting reversal unless it becomes conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant. Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, 796 (Fla. 4th DCA 2018) (alterations in original). Thus, the decisions are in complete accord and no conflict exists. 4

10 Petitioner s reliance on Rhodes v. State, 638 So. 2d 920 (Fla. 1994), as a basis of conflict jurisdiction is likewise misplaced. Petitioner contends that in the case under review [d]efense counsel never asked to rehabilitate any of the thirtyone demonstrably biased jurors or individually examine any of the thirty-one, which purportedly conflicts with Rhodes in which this Court found the defendant to have waived the right to question the jurors. See Brief of Petitioner on Jurisdiction at page 9. The problem with this argument, however, is that the Fourth District s decision in Irimi never mentions waiver. 1 As noted above, in order for conflict jurisdiction to exist, the conflict must appear within the four corners of the decision. Implicit conflict does not confer jurisdiction. See Department of Health and Rehabilitative Services v. Nat l Adoption Counseling Services, Inc., 498 So. 2d 888, 889 (Fla. 1986). Finally, no conflict exists with this Court s decision in Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986). Again, Petitioner attempts to rely upon implicit conflict, rather than the constitutionally required express and direct conflict. Petitioner argues that defense counsel never objected to the any of the 1 If the Court believes waiver is at issue here, the FDLA respectfully requests this Court to discharge jurisdiction and wait for a case with a more developed record to comment on a party s or defendant s right to question jurors and right to a fair trial. This issue has such wide-reaching implications for all civil cases that a written decision could have unintended consequences in the legal system. 5

11 jurors who sat. Id. However, once again, those facts are not discussed within the four corners of the district court s decision. The Supreme Court of Florida is a tribunal of limited jurisdiction. This means that the Court is forbidden to exercise any form of jurisdiction not expressly provided in the Florida Constitution. See Gerald Kogan and Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev (1994). Because Petitioner has not identified any decision which expressly and directly conflicts with the decision under review, this Court has no jurisdiction to review the instant matter. As a result, jurisdiction was improvidently granted and the case should be discharged. II. THE DECISION OF THE FLORIDA FOURTH DISTRICT COURT OF APPEAL, AFFIRMING THE ORDER GRANTING A NEW TRIAL, WAS CORRECT. One of the most well-established principles of Florida law is that the trial judge, who actually observes the proceedings, is in a superior position to rule on motions for new trial, especially those based on occurrences during trial. Wolkowsky v. Goodkind, 143 Fla. 467, 14 So. 2d 398, 402 (Fla. 1943) (quoting Carney v. Stringfellow, 74 So. 866, 868 (Fla. 1917) ( As the trial judge sees the witnesses and hears them testify, and knows all of the circumstances of the case as it is developed at the trial, which matters cannot be presented to the appellate court, he is in a better position to determine the justice of the verdict on the evidence than 6

12 is the appellate court ). For that reason, since at least 1962, the discretion of a trial court to grant a new trial is of such firmness that it should not be reversed except on clear showing of abuse. Castlewood Intern. Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975) (internal citations omitted). Based on this deferential standard, an appellant carries a heavy burden to overturn such a ruling, requiring that the alleged abuse of discretion be obvious in the record. Id. (internal citations omitted); Fusso v. Clark, 147 So. 2d 1, 3-4 (Fla.1962). Petitioner s required showing to reverse the new trial ruling is even more difficult when the error necessitating the new trial was made by the trial judge. See Castlewood Intern. Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975). There are sound reasons for this principle. The trial court perceives in real time the events taking place before her or him, the effect a particular happening or ruling has on the parties, the arguments and positions taken at trial, and the ultimate posture of the trial itself. See King v. Byrd, 716 So. 2d 831, 834 (Fla. 4th DCA 1998) (noting that appellate judges do not see the expressions, hear the tones of voices, [and] observe the general dynamics of the courtroom like trial judges); Wilson v. The Krystal Co., 844 So. 2d 827, 829 (Fla. 5th DCA 2003) ( A trial court is given broad discretionary latitude to grant or deny a motion for new trial because of its direct and superior vantage point of the trial proceedings. ). 7

13 This is especially true when the issue at hand arises from rulings which influence the basic rights of the parties and the outcome of the trial. A trial court s immediate dismissal of potential jurors without giving the Defendant an opportunity to inquire of those jurors is clear error. Its amounts to a deprivation of one of the most important rights of any litigant: to have an adequate opportunity to determine the suitability of potential members of the venire to serve as jurors. See Fla. R. Civ. P (b); Ritter v. Jimenez, 343 So. 2d 659, 661 (Fla. 3d DCA 1977). So fundamental is the right to voir dire that this court fully adopted the dissent in Lavado v. State, 469 So. 2d 917 (Fla. 3d DCA. 1985), which held that it is apodictic that a meaningful voir dire is critical in guaranteeing the right to a fair and impartial jury. Lavado v. State, 492 So. 2d 1322, 1323 (Fla. 1986). To its credit, the trial court recognized its own error, and after deliberation entered its Order granting the new trial. Answer Br. Of Resp t. at 5; Br. Of Pet r. On Merits at 7. The Petitioner urges that this Court approve the trial court s initial decision summarily excusing the 31 venire members, and reject the trial court s effort to correct this error by granting the new trial. This position is not in accordance with Florida law, would require a departure from well-settled principles surrounding the authority of trial courts to rule on such motions, and would deny defendants a fair trial. Considering the superior vantage point of the trial court judge, Florida 8

14 appellate courts should encourage a trial court to rectify prejudicial errors that manifest in trial rather than waiting for an appellate review of the same. This is especially so because the trial court is independently obligated to ensure that all parties receive a fair trial. Trans Health Mgt. Inc. v. Nunziata, 159 So. 3d 850, 863 (Fla. 2d DCA 2014); R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 763 (Fla. 4th DCA 2016). The dissent below asserts that the grant of a new trial was error, because Respondent had acquiesced in the denial of opportunity to examine the venire members before excusing them, and also failed to adequately explain how it was prejudiced by the dismissal of the panel members. See Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, 799 (Fla. 4th DCA 2018). The position enunciated by the dissent is incorrect in several respects. First, defense counsel objected to the procedure of dismissing the jurors en masse; additionally, though not specifically identifying those venire members who might be rehabilitated, defense counsel indicated his agreement that rehabilitation was not possible as to some members of the venire. See Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, (Fla. 4th DCA 2018) ( I think you re right, Your Honor, and there were certainly some people this morning who articulated views that cannot be rehabilitated. ) (emphasis added); Answer Br. Of Resp t. at 26 ( some jurors probably do have a bias that would result in exclusion ) 9

15 (emphasis added). Even without a clear proclamation that particular jurors could be rehabilitated, the jurors in question indicated only an abstract feeling on a particular type of litigation; namely, claims of a decedent smoker s family against a tobacco company, and such a belief is neither automatically disqualifying nor incapable of rehabilitation upon questioning by opposing counsel. See Four Wood Consulting, LLC v. Fyne, 981 So. 2d 2, 5 (Fla. 4th DCA 2007); Montecristi Condo. Ass n, Inc. v. Hickey, 408 So. 2d 671, 674 (Fla. 4th DCA 1981) ( The accepted standard for testing juror bias is that a general, abstract bias or prejudice entertained by a juror regarding a particular class of litigation will not in itself disqualify him when it appears that the abstract bias can be set aside and that the juror will fairly and impartially decide the particular case solely upon the evidence and instructions of the court. ). Here, the venire members gave very general responses to a very few general, abstract questions. No attempt was made - nor could it have been made, because defense counsel was denied the opportunity to inquire - to determine whether those members thoughts and opinions were so firmly held that they could not be set aside, even under proper instructions from the trial court. The dissent overlooks the requirement in Florida law that, absent extraordinary circumstances, each party must be given an opportunity to inquire of the prospective jurors during voir dire. See Green v. State, 575 So. 2d 796 (Fla. 4th 10

16 DCA 1991); O Connell v. State, 480 So. 2d 1284 (Fla. 1985); Ritter v. Jimenez, 343 So. 2d 659, 661 (Fla. 3d DCA 1977); Fla. R. Civ. P (b). There are few principles so engrained in Florida law, and this is so for very good reasons. To work properly, our adversary system of justice depends upon each party having an equal opportunity for vigorous advocacy in all phases of trial practice. This is especially true with respect to jury selection procedures, because maintaining the sanctity of the jury trial is both critical and integral to the preservation of a fair and honest judicial system. Matarranz v. State, 133 So. 3d 473, 476 (Fla. 2013). In fact, the jury system is the foundation of our entire judicial framework and is designed to provide everyone with a fair and factual determination of a case. Fla. Power Corp. v. Smith, 202 So. 2d 872, 882 (Fla. 2d DCA 1967). By failing to allow a party to conduct voir dire, absent that party s consent or an unequivocal showing that voir dire is unnecessary, a trial court may actually betray the sanctity of our entire judicial system. This applies with equal force to all parties, and is not simply a plaintiffdefendant issue. Each party to a lawsuit is entitled to question prospective jurors to attempt to ensure, insofar as possible, that every member of the ultimate jury is qualified and not burdened with bias which would interfere with impartiality. See Ritter v. Jiminez, supra. 11

17 Every seasoned trial lawyer has encountered situations in which venire members may seem to lean one way during questioning by plaintiff, but then upon examination by the other side, respond to questioning on the same subject in an entirely different manner. This would seem to be simply human nature and the product of being placed in an unfamiliar environment discussing unfamiliar topics. Most jurors are not experienced in law and do not enter the courtroom with a robust understanding of the trial process or the legal principles guiding that process. See generally Judge Roger M. Young, Using Social Science to Assess the Need for Jury Reform in South Carolina, 52 S.C. L. Rev. 135 (2000) (discussing the many problems of jury instruction comprehension and various attempts to remedy same). As a consequence, a juror may be confused by the process, in general, and the questions posed during voir dire specifically. That initial confusion may be dispelled with further inquiry and is illustrative of why the ability of each side to question prospective jurors is so important to a fair trial. Contrary to the dangerous approach offered by the dissent, the majority opinion strikes the appropriate balance of allowing both parties the necessary opportunity to examine the venire while also recognizing that, in limited and specific situations, continued questioning of certain jurors may not be warranted. Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, 796 (Fla. 4th DCA 2018). The majority also supports the basic principle that the trial judge should enjoy the 12

18 benefit of his proximity to the trial to order a new trial when warranted. Id. at 795 ( For who is in a better position to review an error than the one who makes it? ). The trial court s summary dismissal of 31 venire members during voir dire ran roughshod over these precepts. To its credit, the trial court recognized its error, and took the appropriate steps to correct it, by ordering a new trial. As mentioned above, the record reflects that the venire members were asked only a few very broad questions pertaining to their thoughts about smoking and their ability to return a verdict in a tobacco case. Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, 791 (Fla. 4th DCA 2018); Answer Br. Of Resp t. at 2-3; Br. Of Pet r. On Merits at 2-3. Their answers were likewise broad. Answer Br. Of Resp t. at 2-3; Br. Of Pet r. On Merits at 3. The trial court therefore had an insufficient understanding of the depths of the opinions expressed by those venire members or whether they could set aside any personal feelings and follow the instructions of law given by the court, applying those instructions to the evidence adduced at trial. On reflection, and after having the opportunity to observe the jury at work during the trial, the trial court reached its determination that the en masse disqualification of the venire members was improper, requiring a new trial. Granting a new trial is never a decision taken lightly by any trial court. Of course, it means that weeks of effort on the part of counsel, court personnel, and the parties themselves, must now be set aside and the efforts made again. Here, the 13

19 trial court wrestled with the issue, ultimately deciding that the duty to provide a fair trial for all parties overrode other considerations. This decision should be given deference. The importance of a trial court having the power to correct its own mistakes cannot be overstated. The trial court, of course, observes every aspect of the proceeding in her or his courtroom, and has by far the best vantage point to determine the effect of rulings or other occurrences in the trial. Wolkowsky, 14 So. 2d at 402. This is the very reason why our rules require that issues pertaining to trial events be brought to the attention of the trial court first, before any reviewing court will consider the issue. E.g. City of Orlando v. Birmingham, 539 So. 2d 1133, 1134 (Fla. 1989); Castor v. State, 365 So. 2d 701, 703 (Fla.1978). The contention advanced by Petitioner would necessarily restrict the authority of a trial court to correct errors made during the litigation and subvert the established jurisprudence recognizing the trial court s superior view of the trial process. If adopted, Petitioner s argument could mean that, in many instances, a court s grant of a new trial would no longer be entitled to the proper deference it warrants, as almost any ruling could in one sense or another be deemed to address a point of law. Case law cited by both parties to this proceeding stands for the proposition that a decision to excuse prospective jurors during voir dire without allowing each 14

20 side to inquire is reversible error, unless it is conclusively clear that the individual cannot under any circumstances render a fair and impartial verdict. Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA 1997). Definitional statements of what establishes conclusive clarity are minimal. However, for the purposes of juror qualification, juror bias seems to be conclusively clear when: (1) there is no reasonable basis to anticipate that a juror could return a verdict for a particular side, Fleckinger v. State, 642 So. 2d 35 (Fla. 4th DCA 1994), or (2) where the questions asked establish that a juror could not fulfill her role of properly weighing the evidence such that it is impossible that the juror could have served on the jury. Howard v. State, 869 So. 2d 725, 727 (Fla. 2d DCA 2004). So surpassing the conclusively clear standard requires more than a showing of a mere likelihood or probability that a juror is biased; rather it requires that there be no reasonable possibility that the juror could be fair. Here, after considering the responses of the jurors and the post-trial submissions and arguments of the parties, the trial court was not prepared to rule that it was conclusively clear that the 31 jurors could not serve, and found that the dismissal improperly impaired Respondent s right to a fair trial, and that justice could only be served by a new trial. The arguments advanced by Petitioner have unfortunate implications beyond just the result of the instant case. Trial courts would be restricted in their ability to 15

21 correct errors by granting new trials even when they are convinced that a just result has not been obtained. Thus, the conclusively clear standard discussed above, and in the briefs of the other parties, would be diminished to the point of providing little guidance to court or bar. The practical result of a decision here overruling the Order granting a new trial would be to restrict a trial court s authority to order new trials, even when the trial court is convinced that an event or ruling has contaminated the result of the trial, to the point of being unjust. Petitioner s theory, applied to other cases reviewed for an abuse of discretion would almost certainly result in supplanting a trial court s ability to remedy its own mistakes by granting a new trial. For example, in Thigpen v. United Parcel Services, Inc., 990 So. 2d 639, 644 (Fla. 4th DCA 2008), a trial court allowed the introduction of unfairly prejudicial evidence and ordered a new trial in light of the error. The Fourth District recognized that although the evidentiary issue dealt with both law and fact, the trial judge was in the best position to determine whether prejudice resulted and affirmed the new trial order. Id. at If Plaintiff s theory, that appellate courts must review these issues involving fact and law de novo, were applied in Thigpen then the trial judge would no longer be properly sit[ting] in essence as an appellate judge to determine if there was prejudicial error based on the events of the trial. Id. at 644. And the appellate court 16

22 would then have been forced to rely on a cold record, without the benefit of seeing the prejudicial effect that the testimony has on the jury, to reverse the trial court s otherwise prudent decision. In Castlewood Intern. Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975), this court reviewed an appellate decision reversing a trial court s grant of new trial. There, the trial court gave a jury instruction on gross negligence even though it was not at issue in the trial. Id. at 521. Later, after determining that the improper jury instruction confused the jury and compromised the fairness of the trial, the trial court granted a new trial as to punitive damages. Id. The Third District reversed, stating that litigants have a right to have applicable instructions presented to the jury but it was not convinced that the jury was confused by the instruction. LaFleur v. Castlewood Intern. Corp., 294 So. 2d 21, 23 (Fla. 3d Dist. App. 1974), vacated, 322 So. 2d 520 (Fla. 1975). This Court vacated the Third District s ruling, noting that the disagreement of the appellate court is not sufficient to overturn the trial court s decision for a new trial because the trial court is better positioned to decide on the correctness of a verdict. Castlewood, 322 So. 2d at 522. The Third District, in LaFleur, essentially utilized the theory advanced by Petitioner s to supplant the trial court s discretion to order a new trial. If not for this court s intervention and reliance on the trial court s superior vantage point, the result would have resulted in a miscarriage of justice. It is not difficult to imagine 17

23 other scenarios where Petitioner s theory would result in injustice to litigants by encouraging appellate courts to substitute their own perspective without giving deference to the trial court s proximity to the proceedings. In the instant case, the trial court clearly erred in dismissing the 31 venire members. Recognizing this error, the court took the proper remedial action: granting a new trial, so that the parties, court, and community could have enhanced confidence in the integrity of the judicial system. This was recognized by the Fourth District Court of Appeal, and should be approved by this Court. CONCLUSION Jurisdiction in this matter was improvidently granted, as there is no direct, express conflict between the decision by the Fourth District Court of Appeal with any decision of this Court or another District Court of Appeal. The cases relied upon by Petitioner are inapposite, being clearly inadequate to invoke this Court s conflict jurisdiction. In any event, the decision below, affirming the Order granting a new trial, entered by the trial court, was correct. That Order was based upon that Court s direct observation of the events at trial, and was properly affirmed by the District Court of Appeal. A decision otherwise would deny a defendant a right to a fair trial by allowing wholesale and en masse dismissal of jurors without allowing a party to question them. 18

24 WHEREFORE, the FLORIDA DEFENSE LAWYERS ASSOCIATION respectfully requests that this Court discharge jurisdiction as improvidently granted or affirm the Fourth District Court of Appeal s well-reasoned opinion. KANSAS R. GOODEN Florida Bar No.: kgooden@boydjen.com BOYD & JENERETTE, PA 201 North Hogan Street, Suite 400 Jacksonville, Florida Tel: (904) Fax: (904) Chair of the FDLA s Amicus Committee /s/ J. Richard Caldwell, Jr. J. RICHARD CALDWELL, JR. Florida Bar No.: dcaldwell@rumberger.com TIMOTHY A. HARVEY, JR. Florida Bar No.: tjharvey@rumberger.com RUMBERGER, KIRK & CALDWELL, PA 100 North Tampa Street, Suite 2000 Tampa, Florida Tel: (813) Fax: (813) CANDY L. MESSERSMITH Florida Bar No.: cmessersmith@rumberger.com RUMBERGER, KIRK & CALDWELL, PA Post Office Box 1873 Orlando, Florida Tel: (407) Fax: (407) COUNSEL FOR FLORIDA DEFENSE LAWYERS ASSOCIATION 19

25 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing has been furnished by to the following, this 28th day of November, 2018: Bard D. Rockenbach, Esquire Adam Richardson, Esquire BURLINGTON & ROCKENBACH Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL bdr@flappellatelaw.com ajr@flappellatelaw.com fa@flappellatelaw.com (Counsel for Petitioner) Jason T. Burnette, Esquire JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, GA jtburnette@jonesday.com (Counsel for Respondent, R.J. Reynolds Tobacco Company) Jonathan R. Gdanski, Esquire Scott P. Schlesinger, Esquire SCHLEISINGER LAW OFFICES, PA 1212 Southeast Third Avenue Ft. Lauderdale, FL slopa.service@schlesingerlawoffices.com jonathan@schlesingerlawoffices.com scott@schlesingerlawoffices.com mdoss@schlesingerlawoffices.com (Counsel for Petitioner) /s/ J. Richard Caldwell, Jr. J. RICHARD CALDWELL, JR. Florida Bar No.: dcaldwell@rumberger.com TIMOTHY A. HARVEY, JR. Florida Bar No.: tjharvey@rumberger.com RUMBERGER, KIRK & CALDWELL, PA 100 North Tampa Street, Suite 2000 Tampa, Florida Tel: (813) Fax: (813) Counsel for Florida Defense Lawyers Association 20

26 CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that the foregoing brief has been typed using the Times New Roman 14-point font, and therefore complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). KANSAS R. GOODEN Florida Bar No.: BOYD & JENERETTE, PA 201 North Hogan Street, Suite 400 Jacksonville, Florida Tel: (904) Fax: (904) Chair of the FDLA s Amicus Committee /s/ J. Richard Caldwell, Jr. J. RICHARD CALDWELL, JR. Florida Bar No.: dcaldwell@rumberger.com TIMOTHY A. HARVEY, JR. Florida Bar No.: tjharvey@rumberger.com RUMBERGER, KIRK & CALDWELL, PA 100 North Tampa Street, Suite 2000 Tampa, Florida Tel: (813) Fax: (813) CANDY L. MESSERSMITH Florida Bar No.: cmessersmith@rumberger.com RUMBERGER, KIRK & CALDWELL, PA Post Office Box 1873 Orlando, Florida Tel: (407) Fax: (407) COUNSEL FOR FLORIDA DEFENSE LAWYERS ASSOCIATION 21