         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

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

                                         v.

LINDA PURDO ENOCHS, individually and as Personal Representative of
               the Estate of THOMAS PURDO,
                           Appellee.

                                 No. 4D16-2025

                                [August 16, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. 50-2007-CA-024173-
XXXX-MB.

  Val Leppert, William L. Durham II and Jeffrey S. Bucholtz of King &
Spalding LLP, Atlanta, GA, and Washington, DC, for appellant R.J.
Reynolds Tobacco Company, and Geoffrey J. Michael of Arnold & Porter
LLP, Washington, DC, for appellant Philip Morris USA, Inc.

    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee,
Alex Alvarez of The Alvarez Law Firm, Coral Gables, Gary M. Paige of
Gordon & Doner, Davie, and David J. Sales of David J. Sales, P.A., Jupiter,
for appellee.

DAMOORGIAN, J.

    In this Engle 1 progeny case, R.J. Reynolds Tobacco Company and Philip
Morris USA, Inc. (“Defendants”) appeal the final judgment entered in favor
of Linda Purdo Enochs as Representative of the estate of her deceased
husband, Thomas Purdo (“Plaintiff”). Defendants argue that the trial court
erred by: (1) failing to engage in the requisite genuineness analysis in
granting Plaintiff’s peremptory challenges to two prospective jurors;
(2) misapplying the Melbourne analysis in granting Plaintiff’s peremptory
challenges as to two other prospective jurors; (3) allowing Plaintiff to
misstate the law on Engle class membership; (4) denying their motion to
remit the jury’s compensatory awards to the Decedent’s two surviving

1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
children ($7 million each); and (5) applying the Engle findings in violation
of Defendants’ due process rights. We affirm on all counts and write only
to address the failure to engage in the requite genuineness analysis issue.

    During voir dire, Plaintiff was the first to use a peremptory challenge,
striking prospective juror 18, a white male. Defendants objected based on
gender and race grounds, prompting the following response:

    [PLAINTIFF]: He’s a white male. I don’t understand what –

    [COURT]: Everybody is a protected class under the case law.

    [PLAINTIFF]: Okay. Well, he’s a smoker, and that’s why I’m
    striking him, he’s a smoker.

    [COURT]: All right. That’s a gender-and-race-neutral reason.
    I will overrule defense objection.

Shortly thereafter, Plaintiff used a peremptory challenge to strike
prospective juror 95, who was also a white male, and Defendants again
objected on gender and race grounds, prompting the following response:

    [PLAINTIFF]: This is what [prospective juror 95] said when
    [defense counsel] asked him about the smoking history of his
    family members, do you think that the tobacco company is
    responsible, and instead of him saying no, I don’t think they’re
    responsible, you know what he said? He said zero.

    [COURT]: I heard that. . . . With an emphasis.

    [PLAINTIFF]: Yes.

    [COURT]: I heard it. Okay. That certainly satisfies the
    Melbourne test. I’m going to overrule . . . defense objection to
    [prospective juror 95].

    At the end of the selection process and before the jury was sworn,
Defendants renewed their objections to Plaintiff’s peremptory challenges
to prospective jurors 18 and 95. In again denying Defendants’ objections,
the trial court referenced the racial make-up of the venire and noted on
the record that there were white males on the jury. This timely appeal
follows.



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   In Florida, whenever a peremptory strike is challenged as
discriminatory, the following three-part procedure must be employed:

     First, the objecting party must make a timely objection, show
     that the venire person is a member of a distinct protected
     group, and request that the court ask the striking party to
     provide a reason for the strike. Second, the burden shifts to
     the proponent of the strike to come forward with a race-neutral
     or gender-neutral explanation. Third, if the explanation is
     facially race-neutral or gender-neutral, the court must
     determine whether the explanation is a pretext “given all the
     circumstances surrounding the strike.”

Siegel v. State, 68 So. 3d 281, 286 (Fla. 4th DCA 2011) (internal citations
omitted) (quoting Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996)).

    With regard to the third-step genuineness inquiry, ‘“[t]here is nothing
in Melbourne which requires trial judges to articulate their thought process
on the issue of pretext.’” Id. (quoting Johnson v. State, 706 So. 2d 401,
404 (Fla. 3d DCA 1998)). Nor are trial judges required to “specifically use
the word ‘genuine.’” Hayes v. State, 94 So. 3d 452, 463 (Fla. 2012).
Nonetheless, “Melbourne does not relieve a trial court from weighing the
genuineness of a reason just as it would any other disputed fact.” Dorsey
v. State, 868 So. 2d 1192, 1202 (Fla. 2003). Accordingly,

     “where a gender or race neutral reason was advanced for the
     strike, the reason advanced is itself reasonable, and the record
     is devoid of any indication that the trial judge considered the
     relevant circumstances surrounding the strike in concluding
     that it was motivated by improper purposes,” an appellate court
     must conclude that the trial judge failed to adequately engage in
     the “genuineness inquiry” mandated by Melbourne.

Siegel, 68 So. 3d at 286 (quoting Jones v. State, 787 So. 2d 154, 157
(Fla. 4th DCA 2001)); see also Cook v. State, 104 So. 3d 1187, 1187–90
(Fla. 4th DCA 2012) (holding that the trial court’s response of “I think it’s
race-neutral. So . . . I’ll sustain the challenge,” standing alone, was
insufficient for the reviewing court to satisfy itself that the trial court
engaged in the genuineness inquiry).

   In the present case, it is undisputed that the trial court never used the
word “genuine” when overruling Defendants’ objections to prospective
jurors 18 and 95. With that being said, however, the record overall reflects
that the court did determine the proffered race-and-gender-neutral

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reasons were genuine. Specifically, when Defendants re-raised their
objections prior to the jury being sworn, the court referred to the racial
make-up of the venire and noted on the record that there were white males
on the jury. See Siegel, 68 So. 3d at 287 (listing the racial or gender make-
up of the venire as one of the circumstances relevant to the genuineness
inquiry); Knight v. State, 919 So. 2d 628, 633 (Fla. 3d DCA 2006) (rejecting
defendant’s argument that the court failed to satisfy the genuineness
inquiry, reasoning that “the record reflects that four females were picked
as jurors and two females were picked as alternates, which would support
the trial court’s decision that the peremptory challenge was not
pretextual”). Moreover, in overruling the initial objection to prospective
juror 95, the trial court noted that in responding “zero” when asked if he
held the tobacco companies responsible for the smoking history of his
family members, the answer was given “[w]ith an emphasis.”

   In light of the overall record and total course of the voir dire in this case,
we are satisfied that the trial court did in fact engage in the genuineness
inquiry in overruling Defendants’ objections to prospective jurors 18 and
95. See Wimberly v. State, 118 So. 3d 816, 826 (Fla. 4th DCA 2012).
In so holding, however, we emphasize that it is important for trial courts
to make an on-the-record genuineness inquiry so as to permit meaningful
appellate review. See Hayes, 94 So. 3d at 463.

   Affirmed.

KUNTZ, J., and CYNAMON, ABBY, Associate Judge, concur.

                             *         *          *

   Not final until disposition of timely filed motion for rehearing.




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