       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1853
                         Lower Tribunal No. 13-12833
                             ________________


                                   Jose Vila,
                           Appellant/Cross-Appellee,

                                        vs.

                          Philip Morris USA Inc.,
                           Appellee/Cross-Appellant.



      An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

      The Ferraro Law Firm, P.A., and Paulo R. Lima, Allan B. Kaiser, Eric M.
Tinstman, and Juan P. Bauta, II, for appellant/cross-appellee.

     Shook, Hardy & Bacon L.L.P., and J. Daniel Gardner; Arnold & Porter LLP,
and Geoffrey J. Michael (Washington, DC), for appellee/cross-appellant.


Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.

     ROTHENBERG, J.
      In this Engle-progeny1 case, the jury returned a verdict in favor of the

defendant, Philip Morris USA Inc. (“Philip Morris”), finding that smoking

cigarettes manufactured by Philip Morris was not a legal cause of the plaintiff’s,

Jose Vila (“Vila”), laryngeal cancer. Thereafter, the trial court entered a final

judgment in favor of Philip Morris and denied Vila’s motion for a new trial. Vila

has appealed the final judgment and the denial of his motion for a new trial.2

                  I. FACTS AND PROCEDURAL HISTORY

      Vila testified that he started smoking cigarettes in 1969, when he was

approximately fifteen years old and living in Spain, and he continued to smoke

cigarettes after he moved to the Dominican Republic in 1974,3 and to the United

States in 1989. Vila also claimed that he smoked only Marlboro cigarettes during

his entire smoking history.




1 Engle v. Liggett Grp. Inc., 945 So. 2d 1246 (Fla. 2006).
2 Philip Morris moved for a directed verdict arguing that Vila should not be
permitted to rely on the Engle Phase I findings because doing so would violate
Philip Morris’s federal due process rights. The trial court denied Philip Morris’s
motion. Philip Morris cross-appealed the denial of its motion for a directed
verdict, but has acknowledged that this argument was rejected by the Florida
Supreme Court in Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013),
and the Supreme Court of the United States has denied review of Douglas. Philip
Morris USA, Inc. v. Douglas, 134 S. Ct. 332 (2013) (denying certiorari).
Accordingly, we affirm the cross-appeal without further discussion.
3 Shortly after moving to the Dominican Republic, Vila and his family moved to

Costa Rica for approximately a year, but returned to the Dominican Republic
thereafter.
                                          2
      In July 1993, Vila first developed symptoms of laryngeal cancer. Following

the diagnosis of Vila’s laryngeal cancer in 1994, he underwent a series of radiation

treatments. In 1996, after the recurrence of Vila’s laryngeal cancer, he underwent

a laryngectomy.

      Vila filed suit against Philip Morris4 to recover damages for his alleged

smoking-related laryngeal cancer, asserting claims for strict liability, fraud,

conspiracy to commit fraud, and negligence, and during the course of the litigation,

the trial court permitted Vila to amend his complaint to add a claim for punitive

damages. Philip Morris filed its answer to the amended complaint, and in its

nineteenth affirmative defense, Philip Morris asserted, without faulting any third

party, that Vila’s injuries and damages were caused solely “by forces and/or things

over which Philip Morris USA had no control and for which Philip Morris USA is

not responsible and not liable.”

      Approximately one month prior to the scheduled trial date, Philip Morris

elicited deposition testimony from Vila’s historian expert, Dr. Robert Proctor, that

Marlboro cigarettes sold in the Dominican Republic when Vila lived there were

manufactured by E. Leon Jimenes Company (“E. Leon Jimenes”), not Philip

Morris. Vila’s counsel did not move for a continuance to address this newly-


4 Vila also filed suit against other tobacco companies—R.J. Reynolds Tobacco
Company, Lorillard Tobacco Company, and Liggett Group, LLC, however, Vila
voluntarily dismissed the lawsuit as to these defendants prior to trial.
                                          3
discovered information, and the case proceeded to trial as scheduled.

      At trial, Philip Morris’s position was that Vila’s laryngeal cancer was caused

by the human papillomavirus, not by smoking cigarettes, but if smoking cigarettes

did cause Vila’s cancer, then it was not caused by smoking cigarettes

manufactured by Philip Morris. In support of the latter argument, Philip Morris

presented evidence relating to the three time periods Vila allegedly smoked

cigarettes—1969 to 1974 when Vila lived in Spain; 1974 to 1989 when Vila lived

in the Dominican Republic; and December 1989, when Vila moved to the United

States, to July 1993, when Vila began to have symptoms of laryngeal cancer.

      As to the first time period, Philip Morris challenged Vila’s claim that he

smoked Marlboro cigarettes in Spain from 1969 to 1974. Philip Morris elicited

testimony from Vila’s expert, Dr. Proctor, that Marlboro cigarettes were not only

the least popular brand of cigarettes in Spain during that time period, but they were

also the most expensive, and therefore, it was unlikely that Vila, who was a

teenager and unemployed, would have smoked Marlboro cigarettes in Spain. As to

the second time period, Philip Morris elicited testimony from Dr. Proctor that from

1974 to 1989, when Vila was living in the Dominican Republic,              Marlboro

cigarettes sold in the Dominican Republic were manufactured by E. Leon Jimenes,

not Philip Morris.    Lastly, Vila’s expert on medical causation, Dr. William

Goodwin, testified that even if Vila smoked cigarettes manufactured by Philip

                                         4
Morris from the time he entered the United States, in December 1989, until the

time he developed symptoms of laryngeal cancer, in July 1993, he has never seen a

person develop laryngeal cancer as a result of smoking cigarettes over a period of

three-and-a-half years.

      Prior to trial, the trial court granted Vila’s motion in limine to exclude any

reference to certain personal information. During the trial, the parties disputed

when Vila had stopped smoking—in 1994 or 1996.             Vila testified on direct

examination that he quit smoking in 1996.          However, during Vila’s cross-

examination, Philip Morris’s counsel impeached Vila with portions of his medical

records that reflect that Vila told his physicians that he had stopped smoking in

1994, not 1996. To impeach Vila, Philip Morris’s counsel would first display to

Vila and the jury the page of the medical record containing the physician’s

signature, which counsel had highlighted, to ascertain whether Vila recognized the

physician’s name. Next, counsel would display the page of the medical record

reflecting that Vila had told that physician that he had stopped smoking in 1994.

For the particular medical record at issue, the page containing the highlighted

physician’s signature also contained a reference to the personal information that

was excluded by the motion in limine. After Philip Morris’s counsel confirmed

that Vila recognized the physician’s name, counsel displayed a different page of

the medical record. At that point, Vila’s counsel requested a sidebar.

                                         5
      At the sidebar, Vila’s counsel objected to the unredacted signature page

displayed to the jury and requested a mistrial. Philip Morris’s counsel responded

that he had not realized that the signature page contained the excluded personal

information and that the violation of the motion in limine was inadvertent. In

order to assess Vila’s motion for a mistrial, the trial court asked Vila to step down

from the witness stand and sent the jurors into the jury room. Thereafter, the trial

court called each juror to the courtroom one by one and asked if he or she had read

or looked at anything on the signature page other than the highlighted area

containing the physician’s signature. Each juror responded that he or she had not.

Thereafter, the trial court asked Vila’s counsel if there was anything else he wished

to say. Vila’s counsel responded that he did not, and the trial court denied Vila’s

motion for a mistrial.

      When charging the jury and explaining the verdict form to the jury, the trial

court instructed the jury to answer the following questions on the verdict form: (1)

“Was Jose Vila addicted to cigarettes containing nicotine and, if so, was such

addiction a legal cause of his laryngeal cancer?”; and (2) “Was smoking cigarettes

manufactured by Philip Morris USA Inc. a legal cause of Jose Vila’s laryngeal

cancer?” The jury answered “yes” as to the first question and “no” as to the

second question, and thereafter, the trial court entered a final judgment in favor of

Philip Morris. The trial court denied Vila’s motion for a new trial, and Vila’s

                                         6
appeal followed.

                                   II. ANALYSIS

A. Whether the trial court erred by including question number (2) on the verdict
   form over Vila’s objection

        Vila contends that the trial court erred by including question number (2) on

the jury verdict form where Philip Morris failed to plead as an affirmative defense

the liability of E. Leon Jimenes as a Fabre5 defendant. We disagree because Philip

Morris presented an “empty chair” defense, rather than seeking to include E. Leon

Jimenes as a Fabre defendant on the verdict form and have the jury apportion any

fault to E. Leon Jimenes.

        There is a distinct legal difference between asserting an “empty chair”

defense and seeking an apportionment of fault under Fabre. To present an “empty

chair” defense, a defendant may “point to an empty chair” by arguing that “a non-

party is responsible for the plaintiff’s injuries.” Black v. Montgomery Elevator

Co., 581 So. 2d 624, 625 (Fla. 5th DCA 1991). To present an “empty chair”

defense, the defendant need only answer the complaint with a general denial and

argue to the jury that the injury was due to the negligence of a non-party to the

suit. See Clement v. Rousselle Corp., 372 So. 2d 1156, 1158 (Fla. 1st DCA 1979)

(“A defendant who has answered with a general denial, is entitled to prove, and to

argue to the jury, that the accident was due solely to the negligence of a person not

5   Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
                                           7
party to the suit.”); see also Pearson v. Royal Caribbean Cruises, Ltd., 751 So. 2d

125, 126 (Fla. 3d DCA 2000) (affirming the order under review by relying on the

above quoted statement from Clements). As an “empty chair” defense is not truly

an affirmative defense, it does not have to be pled in the defendant’s affirmative

defenses. See King ex rel. Murray v. Rojas, 767 So. 2d 510, 511 n.1 (Fla. 1st DCA

2000) (“When a defendant in a negligence action alleges that a plaintiff’s injury

resulted from someone else’s negligence rather than his own, the defendant is

simply elaborating on the simplest defense of them all, namely that [the] plaintiff

has sued the wrong person. Saying that someone else is really the negligent actor

is obviously not a confession and avoidance, the essence of a true affirmative

defense.”); see also Dover v. R.J. Reynolds Tobacco Co., 2014 WL 4723116, at *3

n.25 (M.D. Fla. Sept. 22, 2014) (noting that “it is not an affirmative defense for a

defendant in a negligence action to argue that [the] plaintiff’s injury resulted from

someone else’s negligence”).

      Conversely, if the defendant wishes to seek an apportionment of fault

against a nonparty, it must identify the nonparty and plead the negligence of that

nonparty as an affirmative defense.      If these requirements are met, then the

nonparty defendant may be placed on the verdict form and the jury may consider

and allocate the percentage of fault attributable to the nonparty defendant. “[I]n

order to include a nonparty on the verdict form pursuant to Fabre, the defendant

                                         8
must plead as an affirmative defense the negligence of the nonparty and

specifically identify the nonparty.” Nash v. Wells Fargo Guard Servs., Inc., 678

So. 2d 1262, 1264 (1996); see also Loureiro v. Pool by Greg, Inc., 698 So. 2d

1262, 1263 (Fla. 4th DCA 1997) (holding that the issue of a non-party’s liability

was not properly raised by the pleadings because the defendant’s affirmative

defense “did not specifically identify any non-party and [the defendant] did not

move to amend the defense at any time,” and therefore, the plaintiff’s “objection to

the injection of non-party liability into the case should have been sustained”).

      As explained in Vucinich v. Ross, 893 So. 2d. 690, 694 (Fla. 5th DCA

2005), there is a fundamental difference between a Fabre affirmative defense and

an “empty chair” defense:

      “Fabre defendants are non-parties which are alleged by a party
      defendant to be wholly or partially negligent and should be placed on
      the verdict form so there can be an apportionment of fault against
      them for non-economic damages . . . .” [Phillips v. Guarneri, 785 So.
      2d 705, 706 (Fla. 4th DCA 2001)]. On the other hand, the term
      “empty chair” refers to the argument that “some non-party is the sole
      legal cause of the harm alleged but, unlike a Fabre defendant, this
      non-party is not placed on the verdict form and there is no
      apportionment of fault.” Id. at n.4.

      In the instant case, in its affirmative defenses, Philip Morris did not

specifically identify E. Leon Jimenes as a nonparty who was responsible for Vila’s

injuries, and Philip Morris did not ask the jury to apportion any fault to E. Leon

Jimenes by seeking to include E. Leon Jimenes as a nonparty defendant.


                                          9
Therefore, consistent with Philip Morris’s pleadings, the verdict form did not

include E. Leon Jimenes as a Fabre defendant, and contrary to Vila’s assertion,

question number (2) of the verdict form did not somehow effectively place E. Leon

Jimenes on the verdict form as a Fabre defendant. Instead, the record reflects that,

at most, Philip Morris merely presented an “empty chair” defense.

      In fact, Philip Morris’s main argument was that smoking cigarettes did not

cause Vila’s cancer. In the alternative, Philip Morris however argued that even if

Vila’s addiction to cigarettes was a legal cause of his laryngeal cancer, smoking

cigarettes manufactured by Philip Morris was not a legal cause of his cancer. As

explained earlier, Philip Morris broke down Vila’s smoking history into three

different timeframes based on where he lived. As to the timeframe when he lived

in Spain (1969 to 1974), Philip Morris argued that it was unlikely that Vila, who

was an unemployed teenager, smoked Marlboro cigarettes in Spain because they

were not only the least popular cigarettes, but they were also the most expensive

cigarettes. Second, as to the period when Vila lived in the Dominican Republic

(1974 to 1989), Philip Morris elicited testimony that the Marlboro cigarettes sold

in the Dominican Republic were manufactured by E. Leon Jimenes, not Philip

Morris. Finally, as to the period from when Vila moved to the United States

(December 1989) to his date of diagnosis (July 1993), Philip Morris elicited

testimony from Vila’s causation expert that he had never seen a person develop

                                        10
laryngeal cancer by smoking cigarettes for three-and-a-half years. Accordingly, we

conclude that question number (2) did not effectively place E. Leon Jimenes on the

jury verdict form as a Fabre defendant.          Rather, Philip Morris presented a

successful “empty chair” defense.

B. Whether the trial court abused its discretion by denying Vila’s motion for a
   mistrial based on Philip Morris’s violation of the motion in limine

      Vila contends that the trial court erred by denying his motion for a mistrial

based on Philip Morris’s violation of the motion in limine. A trial court’s ruling

on a motion for mistrial is reviewed for an abuse of discretion, Salazar v. State,

991 So. 2d 364, 772 (Fla. 2008), and a “motion for mistrial should only be granted

when an error is so prejudicial as to vitiate the entire trial.” Id. (quoting England v.

State, 940 So. 2d 389, 401-02 (Fla. 2006)).

      In the instant case, following Vila’s objection and request for a mistrial, the

trial court voir dired each of the jurors individually after asking the jury to step into

the jury room and instructing the jurors not to discuss the case or the questioning

by the trial court with the rest of the jurors. Thereafter, the trial court voir dired

each juror one by one, asking if he or she had read anything on the signature page

other than the physician’s signature, which was highlighted. Each juror responded

that he or she had not. Based on the actions taken by the trial court and each

juror’s response, we find no abuse of discretion where each juror’s response to the

trial court’s question indicates that he or she did not see the information prohibited
                                           11
by the motion in limine.

                                 III. CONCLUSION

         Based on the reasons set forth in this opinion, we affirm the final judgment

entered in favor of Philip Morris and the order denying Vila’s motion for a new

trial.

         Affirmed.




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