                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

R.J. REYNOLDS TOBACCO
COMPANY and PHILIP
MORRIS USA INC.,

      Appellants.                   CASE NO. 1D15-4197

v.

ANDY R. ALLEN SR., as
Personal Representative for the
Estate of PATRICIA L. ALLEN,

      Appellee.
___________________________/

Opinion filed October 18, 2017.

An appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.

Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley,
Prichard, Parrish, Knight & Jones, Jacksonville, for Appellant R.J. Reynolds
Tobacco Company.

Geoffrey J. Michael of Arnold & Porter LLP, Washington D.C., for Appellant
Philip Morris USA Inc.

Celene H. Humphries, Steven L. Brannock, Philip J. Padovano, Maegen P. Luka,
and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory D. Prysock and
Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, for Appellee.


              ORDER DISSOLVING REHEARING EN BANC

      The Court by previous order issued June 15, 2017, by majority vote of
judges, granted Appellants’ Motion for Rehearing En Banc. Following that order,

upon motion by a judge, a majority of judges voted to dissolve the en banc

proceeding. Accordingly the en banc proceeding is dissolved, and the case is

assigned to the panel for further action.

WOLF, LEWIS, ROBERTS, MAKAR, BILBREY, and WINOKUR, JJ., concur.

OSTERHAUS, WINSOR, and M.K. THOMAS, JJ., dissent.

B.L. THOMAS, C.J., dissents with opinion.

WETHERELL, ROWE, RAY, KELSEY, and JAY, JJ., recused.




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B.L. THOMAS, C.J., dissenting from the dissolution of rehearing en banc.

      I dissent from the Court’s decision dissolving its en banc rehearing in this

case, after the Court initially granted Appellants’ Motion for Rehearing En Banc

on June 15, 2017. Nothing short of a grave injustice has been done in this case: a

prospective juror, who later served as the jury foreperson, withheld information

during voir dire that he had previously likened a party to a slaveholder or a leech,

and after voting to return a multi-million dollar verdict against that party, the juror

exulted in the verdict, calling the party “Satan.” And here, the trial court had not

one but two alternate jurors who could have replaced the biased juror.

      Trial lawyers practice in extremely difficult circumstances and cannot read

minds to discover hidden biases of prospective jurors, who give false answers in

voir dire.   There was no failure on the part of Appellants to discover this

undisclosed bias and animosity.

      We held in Phillip Morris USA, Inc. v. Brown, 96 So. 3d 468 (Fla. 1st DCA

2012), that a trial judge who compared the company’s corporate executive officer

to a war criminal mandated removal of the trial judge from the case. But here, we

are affirming an unjust verdict tainted by a biased juror. Thus, I dissent from the

decision to dissolve our previous conclusion that the court should rehear this case

en banc.


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