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

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

      Appellants,

v.                                  CASE NO. 1D15-4197

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, DC, 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.


                       ON MOTION FOR REHEARING
BILBREY, J.

        We grant rehearing on the court’s own motion, withdraw our previous

opinion issued February 24, 2017, and substitute this opinion in its place. In this

Engle-progeny case,1 Appellants raise four issues in their challenge to the final

judgment which awarded Appellee $3,094,000 in compensatory damages, jointly

and severally, and awarded Appellee $7,755,415 in punitive damages against each

Appellant. Finding no error we affirm.

                           Allegations of Juror Misconduct

        Appellants first contend that the trial court erred in not dismissing a juror

during trial or for not granting the Appellants’ post-trial motion for new trial based

on the juror’s alleged failure to disclose bias against tobacco companies during

jury selection. The parties agree that the trial court’s denial of a motion to dismiss

a juror and denial of new trial based on allegation of juror concealment of bias are

reviewed for abuse of the trial court’s discretion. Villalobos v. State, 143 So. 3d

1042, 1046 (Fla. 3d DCA 2013). “Indeed, Florida courts give great deference to

such decisions because trial judges are in the unique position to evaluate the

practices of the attorneys during voir dire and to determine what factors were

material in jury selection.” Morgan v. Milton, 105 So. 3d 545, 549 (Fla. 1st DCA

2012).


1   Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
                                            2
      When jury selection began, the trial court explained the process to the panel

of prospective jurors, including explaining a juror questionnaire prepared by the

Appellants. The court asked the jurors “to take seriously the questionnaire and

answer the questions as truthfully and fully as you can.” Prospective juror Michael

Taylor completed his questionnaire. Mr. Taylor checked the areas in which he had

worked or received training or education, including “Tobacco/Cigarette Industry,”

“Addiction or substance abuse,” and “Smoking cessation.” In response to the

request to “explain,” Mr. Taylor wrote “Tobacco former smoker, substance

tobacco” and “ex-smoker 28 years/5 clean.” In response to a question regarding

his “smoking status,” Mr. Taylor circled “Former Smoker.” He gave details of his

former smoking behaviors, including his start at age 13, the 28 years he was a

smoker, and that he tried to quit “many” times. He also described his family’s

history of smoking, including the particular relatives who smoked, what brands

they smoked, and the heavy amounts that they smoked. Mr. Taylor indicated in the

questionnaire that he thought his minor son suffered from smoking-related asthma.

When asked in question 30 his opinion of smokers, Mr. Taylor wrote: “Addicted

but accountable for their choices.” In answer to question 31 about his opinion of

“a lawsuit against a tobacco company,” Mr. Taylor wrote that he “must know the

facts to judge.” When asked in question 32 his “opinion, if any, of cigarette

companies,” Mr. Taylor wrote, “they are a business.”

                                        3
      Jury selection spanned three days. The parties point to only one excerpt in

the transcripts of the jury selection showing Mr. Taylor being questioned

individually. When asked by Appellee’s trial counsel about his smoking history,

Mr. Taylor replied, “I smoked 28 years, addicted to nicotine, quit on Chantix 2008.

Smoked a pack a day.”        Mr. Taylor was never individually questioned by

Appellants’ trial counsel. No preemptory or for cause challenges were directed at

Mr. Taylor, and he was selected as a member of the jury.

      On the fourth day of trial Appellants’ trial counsel raised the allegations of

juror misconduct by Mr. Taylor in a written motion seeking to have him removed

from the jury. The motion alleged “personal and deep-seated antagonism and bias

against Defendants” based on social media postings Mr. Taylor had purportedly

made on the internet in the past. The trial continued, and a few days later counsel

for Appellee filed a written response. The trial court heard argument on the motion

outside the presence of the jury, and after taking the matter under advisement,

denied the motion to dismiss Mr. Taylor from the jury. After the jury returned

verdicts for compensatory and then punitive damages for the Appellee, the trial

court entered a detailed order setting forth the basis for denying the motion to

remove Mr. Taylor.

      After the jury verdicts, the Appellants moved for a new trial based on the

same allegations raised in their motion to dismiss Mr. Taylor from the jury. After

                                         4
receiving a response from Appellee and holding a hearing on the motion for new

trial, the trial court denied that motion. At no time did Appellants seek to further

voir dire or interview Mr. Taylor regarding the allegations of bias.

      The trial court thoroughly analyzed this issue in its orders denying the

dismissal of Mr. Taylor and denying a new trial. The three-part standard the trial

court correctly used was given in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla.

1995). In De La Rosa, the Florida Supreme Court stated the test for whether a new

trial is warranted based on juror concealment, “First, the complaining party must

establish that the information is relevant and material to jury service in the case.

Second, that the juror concealed the information during questioning. Lastly, that

the failure to disclose the information was not attributable to the complaining

party’s lack of diligence.” Id. at 241. The first prong of the De La Rosa standard

was undisputed below, and the trial court found that the postings were relevant and

material to Mr. Taylor’s jury service.2

      As to the second prong of the De La Rosa standard, the trial court found that


2 How the trial court knew the postings were Mr. Taylor’s, as opposed to someone
else’s, without interviewing him is therefore not an issue for our consideration.
Additionally, the remoteness in time of the postings, one over a year and the other
over five years before the trial, and whether they remained material is not for our
consideration. Cf. Leavitt v. Krogen, 752 So. 2d 730 (Fla. 3d DCA 2000) (holding
non-disclosure of an over ten year old claim not material). Finally, the post-trial
postings mentioned in the dissent do not alter the test. Even if the post-trial
postings were relevant and material, the other two prongs of the De La Rosa test
must be met.
                                         5
Mr. Taylor did not conceal any bias against the Appellants. In the order denying

Appellants’ motion to dismiss Mr. Taylor, the trial court stated,

      First, Juror Taylor’s response that cigarette smokers are “addicted but
      accountable for their choices” is not inconsistent with his social media
      posts. In both posts Juror Taylor discussed his overcoming of
      smoking addiction. Similarly, his responses to the other two
      questionnaire questions are not contradictory of his social media
      posts. The Defendants appear to argue that Juror Taylor was
      requested to elaborate more in his response to the questionnaire.
      However, questions 30-32 of the juror questionnaire are subjective
      questions that are broad enough to summon a wide array of responses.
      The questions certainly do not clearly or squarely ask for the detailed
      level of information present in Juror Taylor’s social media posts. The
      questions do not specifically require the jurors to disclose whether
      they harbor any negative feelings towards tobacco companies.

      The questionnaire did not ask unequivocal questions regarding bias, and Mr.

Taylor did not provide unequivocal answers, which distinguishes the facts here

from Roberts ex rel. Estate of Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002), cited

by Appellants. In Roberts, the Florida Supreme Court required a new trial where a

juror failed to disclose that she had been involved in prior litigation when asked if

she had ever been a party to a lawsuit. See also De La Rosa, 659 So. 2d at 241.

The questions and answers at issue here were not the clear, black or white, yes or

no, type of questions at issue in Roberts. Mr. Taylor cannot be blamed for “not

being more forthcoming given the very basic questions asked.” Gamsen v. State

Farm Fire & Cas. Co., 68 So. 3d 290, 294 (Fla. 4th DCA 2011); see also Hood v.




                                          6
Valle, 979 So. 2d 961 (Fla. 3d DCA 2008).3 The trial court did not abuse its

discretion in finding that the second prong of the De La Rosa standard was not

met.

       The trial court also found that there was insufficient due diligence exercised

by Appellants to meet the third prong of the De La Rosa standard. As the Court

explained in Roberts, “resolution of this ‘diligence’ issue requires a factual

determination regarding whether the explanations provided by the judge and

counsel regarding the kinds of responses which were sought would reasonably

have been understood by the subject jurors to encompass the undisclosed

information.” 814 So. 2d at 343. In making the factual determination, in the order

denying the dismissal of Mr. Taylor from the jury, the trial court found,

       [Q]uestions 30-32 of the juror questionnaire were broad enough to
       elicit a wide array of responses. Juror Taylor’s responses to these
       three questions raised numerous issues that would logically call for
       follow-up questions. Moreover, Juror Taylor indicated on the
       questionnaire that he was a former heavy smoker of twenty-eight
       years, and had been “clean” for the past five years. He also stated that
       his father and both grandfathers were lifelong heavy smokers, leading
       to health issues. Juror Taylor indicated on the questionnaire that he
       attributed his son’s asthma to smoking-related causes.

3 If Mr. Taylor had intended to be a stealth juror leading a runaway jury, he did a
poor job of concealing it by providing answers in the questionnaire that he was a
28-year former smoker now “clean” for five years, mentioning his many attempts
to quit smoking, and acknowledging his family members who smoked or who he
believed were adversely affected by smoking. Cf. John Grisham, The Runaway
Jury (1996) (a work of fiction where a prospective juror actively hid his past and
hid strongly held beliefs in order to be selected as a juror and influence a
substantial verdict against a tobacco company).
                                         7
The trial court also mentioned Mr. Taylor’s verbal response detailing his smoking

history.

      The trial court found that due diligence required follow-up questions to Mr.

Taylor, a long-time smoker now five years “clean,” to examine whether he

“harbored no ill-feelings toward tobacco companies.” Due diligence is lacking

when “at best, an ambiguity may exist which was not explored.” Lugo v. State, 2

So. 3d 1, 15 (Fla. 2008). The trial court noted that it did not impose time limits on

the voir dire. The trial court concluded that Appellants’ likely strategic decision

not to question Mr. Taylor did not satisfy due diligence.

      Given Mr. Taylor’s disclosed personal and family history with cigarette

smoking, along with his answers to questions 30 through 32 in the questionnaire,

we find no abuse of discretion in the trial court determining that Mr. Taylor should

have been asked clear and direct questions during jury selection regarding any bias

against tobacco companies. As two prongs of the De La Rosa standard are lacking,

there was no error in the trial court’s refusal to dismiss Mr. Taylor or grant a new

trial based on his serving on the jury.

                                 Comparative Fault

      Appellants next argue that the trial court erred by not reducing the

compensatory damages following the jury’s finding that the decedent was seventy

percent at fault. Although there is a split of authority among the Florida district
                                          8
courts, this court held in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla.

1st DCA 2013), that apportionment of fault is not required by section 768.81,

Florida Statutes, where a jury finds — as it found at trial here — that a defendant

committed intentional torts of fraudulent concealment and conspiracy to

fraudulently conceal. In R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487

(Fla. 4th DCA 2015), rev. granted, Schoeff v. R.J. Reynolds Tobacco Co., 2016

WL 3127698 (Fla. May 26, 2016), the Fourth District held contrary to Sury that

fault should be apportioned in what that court considered to be a products liability

action. We are obligated to follow Sury and in doing so hold that the trial court did

not err when it refused to apportion fault.4

                                 Punitive Damages

      Appellants’ third issue is that the trial court applied the incorrect version of

the punitive damages statutes resulting in an incorrect jury instruction on the

standard for awarding punitive damages and an award of punitive damages in

excess of that permitted by law. Chapter 99-225, section 22, Laws of Florida,

amended section 768.72(2)(b), Florida Statutes, to require a “conscious disregard”

for the safety of others rather than the previous standard of “reckless disregard,” to

4 We also distinguish the situation here from R.J. Reynolds Tobacco Co. v. Hiott,
129 So. 3d 473 (Fla. 1st DCA 2014). Unlike in Hiott, the jury here was not misled
by the trial court or counsel regarding the reduction of compensatory damages. In
fact the jurors here were repeatedly told that if they returned a verdict on the two
fraud counts then damages could not be reduced by the percentage of fault
attributed to the decedent.
                                          9
allow for an award of punitive damages. Chapter 99-225, section 23, amended

section 768.73, Florida Statutes, to impose a stricter cap on punitive damages and

to require findings by the jury to overcome that cap. Appellants contend the post-

1999 version of the statute applies here and that the trial court committed error by

applying the earlier version of the statute.

      Typically, the applicable version of a statute is the one “in effect when the

cause of action arose.” D’Anglo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla.

2003) (citing Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA

2002)); §§ 768.72(4) & 768.73(5), Fla. Stat. In many wrongful death actions, the

cause of action accrues on the date of a decedent’s death. Nationwide Mut. Fire

Ins. Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994). However, Engle-

progeny cases are different. Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.

2006); see also R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla.

2016) (applying manifestation rather than accrual of cause of action to establish

membership in the Engle class).

      To be a member of the Engle class and to take advantage of the findings in

Engle, a plaintiff’s (or plaintiff’s decedent’s) “symptoms of a tobacco-related

disease or medical condition” must have manifested by November 21, 1996.

Ciccone, 190 So. 3d at 1030; see also Engle, 945 So. 2d at 1275. The testimony at

trial was that Mrs. Allen’s chronic obstructive pulmonary disease (COPD)

                                          10
manifested before November 21, 1996, so she qualified for the res judicata benefits

of the Engle class. See Ciccone; Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d

1219, 1226-27 (Fla. 2016).5

      Here litigation commenced on September 18, 2007, when Mrs. Allen was

still living. The initial complaint alleged that Mrs. Allen was a member of the

Engle class and entitled to benefit from the Engle findings. See Ciccone; Philip

Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013). The initial complaint

was filed within the one-year period during which the Florida Supreme Court

allowed individual claims following the decertification of the class in Engle. 945

So. 2d at 1277. Mrs. Allen died on February 24, 2009, and Appellee continued the

litigation which had been commenced before her death by filing a third amended

complaint with the wrongful death claim.

      Section 768.20, Florida Statutes, provides guidance and states in part,

“When a personal injury to the decedent results in death, no action for the personal

injury shall survive, and any such action pending at the time of death shall abate.”6



5  Even using the typical test for accrual of a cause of action for a latent or
“creeping disease,” the cause of action here likely accrued by September or
October 1996, when Mrs. Allen was diagnosed with early COPD and
recommended to undertake smoking cessation treatment. See Carter v. Brown &
Williamson Tobacco Corp., 778 So. 2d 932, 936-37 (Fla. 2000); Ciccone, 190 So.
3d at 1042-46 (Polston, J., dissenting). A follow-up exam on November 18, 1996,
specifically tied her early COPD to continued tobacco use.
6 Other than the adoption of gender neutral language in 1997, this statute has not

                                         11
When Mrs. Allen died, her personal injury case did not “self-destruct like the

secret message on a rerun of ‘Mission Impossible.’”            Niemi v. Brown &

Williamson Tobacco Co., 862 So. 2d 31, 33 (Fla. 2d DCA 2003). Instead it abated

until a personal representative was appointed and the existing suit was amended to

add the wrongful death claim. Appellee was not required to file a new suit, but

instead was allowed to proceed in the same suit initiated by Mrs. Allen. See

Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013). Just as the

wrongful death action was allowed to relate back to date of the Engle class for

statute of limitations purposes, the applicable statutory law also relates back to the

Engle class. See In re: Engle Cases, 45 F. Supp. 3d 1351 (M.D. Fla. 2014)

(discussing relation back of wrongful death action following plaintiff/smoker’s

death). This date had to be before November 21, 1996, so the post-1999 revisions

to the punitive damages statutes do not apply.

      In Schoeff, the Fourth District had occasion to consider which version of the

comparative fault statute applied to the wrongful death action. 178 So. 3d at 492

n.3. Although that case began as a wrongful death action, the Schoeff court held

that the version of the statute in effect at the time the decedent was diagnosed with

lung cancer was the applicable version, since that was when the cause of action

accrued. Id. That logic is even more persuasive here where the case began with

been altered since it was adopted in Chapter 72-35, Laws of Florida; so the
applicable year of section 768.20 is not at issue.
                                          12
Mrs. Allen as a plaintiff and was converted to a wrongful death action after she

died. After her causes of action accrued, Mrs. Allen had a substantive right to seek

punitive damages under the then-existing standard. See Alamo Rent-A-Car, Inc. v.

Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).          Application of the post-1999

amendments to the punitive damages statute to Appellee’s derivative claim would

impair those substantive rights. Id.; see also Celotex Corp. v. Meehan, 523 So. 2d

141, 147 (Fla. 1988) (“wrongful death action is derivative of the injured person’s

right, while living, to recover personal injury”) (citing Variety Children’s Hospital

v. Perkins, 445 So. 2d 1010 (Fla. 1983)).7

                                   Due Process

      Appellants’ final issue is raised only for preservation purposes, that the use

of the Engle findings in the trial court violated due process. This argument has

been definitively rejected by the Florida Supreme Court in Douglas. 110 So. 3d at

430-31.

                                    Conclusion

7  Additionally it would arguably be inequitable to subject the Appellee to the
higher burden and potentially lower damages of the revised punitive damages
statutes, when Mrs. Allen would have proceeded under the old statutes had she
survived. The Florida Supreme Court’s holding in Martin v. United Security
Services, Inc., 314 So. 2d 765 (Fla. 1975), one of the first cases interpreting the
then new Wrongful Death Act, is instructive. There the Court allowed punitive
damages in a wrongful death case holding, “We see no reason why United Security
should escape possible liability for punitive damages merely because its employee
killed rather than injured her.” Id. at 772.

                                         13
      Having determined that no error was committed by the trial court, the

judgment is affirmed.

      AFFIRMED.

WINOKUR, J., CONCURS IN PART AND CONCURS IN RESULT ONLY
WITH OPINION; OSTERHAUS, J., DISSENTS WITH OPINION.




                                    14
WINOKUR, J., concurring in part and concurring in result only.

        I concur in the majority opinion with respect to all issues except the juror

misconduct issue. With regard to the juror misconduct issue, I concur in result

only.

        In their Motion for Rehearing En Banc or Certification to the Florida

Supreme Court, Appellants argue that the decision here “establishes an

unreasonable standard for uncovering juror bias that would turn voir dire into a

long series of hostile questions by counsel worried about being faulted for

displaying insufficient precision and diligence.” This argument has impelled me to

explain why I vote to affirm with regard to the juror concealment issue.

        Prospective jurors were asked by questionnaire for their “opinion, if any of

cigarette companies.” Juror Taylor gave a bland response: “they are a business,” a

fact rather than an opinion. After trial started, Appellants uncovered social media

postings from Taylor that reflected antagonism toward tobacco companies. One of

these messages was five and one-half years old, and the other was posted five

months prior to trial. Appellants’ argument, and the dissenting opinion, rests

squarely on the presumption that the posts reflected precisely the opinions of

Taylor at the time of jury selection. And because those opinions are inconsistent

with Taylor’s answers at jury selection, Appellants conclude that he was guilty of

concealing his “true opinions” of tobacco companies.

                                         15
      Experience concerning personal opinions belies this argument. Even if these

messages accurately reflected Taylor’s opinion at the time he wrote them, nothing

shows that they reflected his views at the time of trial, other than a presumption

that his opinion was unchanged. “The foolish and the dead alone never change

their opinion.”   James Russell Lowell, My Study Windows 166 (Boston: J.R.

Osgood & Company 1874).

      For this reason, I cannot subscribe to the view that cases where a prospective

juror has given false factual information during jury selection control here. For

instance, the jurors in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), were

asked whether they or family members or close friends had been a party to a

lawsuit. The answer to this question is either “yes” or “no,” and the answer is

either true or false. A prospective juror who fails to answer this question truthfully

is guilty of concealment. I respectfully disagree with the dissent that the question,

“[w]hat, if any, opinion do you have of cigarette companies[?],” is so “simple” and

“straightforward” that it necessarily calls for the same type of certain, verifiable

answer as the one to the question about prior lawsuits. I do not believe we should

presume, as Appellants do, that any past expression of opinion necessarily reflects

a “true opinion” and that anything contrary to that past expression constitutes

concealment of that true opinion.

      The dissent finds the request for an opinion about tobacco companies to be a

                                         16
“simple, straightforward question” that “[e]ven grade-schoolers understand.” Infra

at 25-26. To demonstrate, the dissent proposes responses to opinion inquiries such

as “I love my job” or “I hate the Gators.” I do not share the dissent’s contention

that personal opinions can always be expressed with such simplicity and certainty.

It leaves no room for mixed feelings, evolving views, or even the possibility that a

person might be more circumspect in expressing his opinions when giving sworn

answers in jury selection than he is writing Facebook posts.

      A juror can certainly be dismissed for concealing an opinion during jury

selection. But dredging up past communications, declaring them “true opinion,”

and comparing the past communication with answers at jury selection does not

necessarily demonstrate concealment. The surest way to determine whether Taylor

continued to hold the views expressed in the online messages would have been to

ask him. Appellants never asked to interview Taylor after they discovered his

messages. Instead, they asked this Court to presume that the opinions expressed in

these prior messages reflected Taylor’s views at the time of trial, and then fault

him for concealing those views.8 I am unwilling to make this presumption.

      Florida Rule of Civil Procedure 1.431(h) permits post-verdict juror


      8 Of course, one can argue based on the available circumstantial evidence
that Taylor’s questionnaire answers did in fact conceal his “true opinion.” But
given the capricious nature of personal opinions, a party asserting that new
information casts doubt on a juror’s expression of opinion at jury selection should
be required to interview the juror.
                                        17
interviews when the party has grounds for a legal challenge to a verdict. “Where

there are reasonable grounds to believe concealment of a material fact has taken

place, a party is entitled to conduct a jury interview.” Singletary v. Lewis, 584 So.

2d 634, 636 (Fla. 1st DCA 1991). A court abuses its discretion in denying a juror

interview when a party comes forward with information that a juror concealed

relevant information at jury selection. See e.g. Westgate Palace, LLC v. Parr, 216

So. 3d 747 (Fla. 5th DCA 2017). While Rule 1.431(h) specifically refers to post-

verdict interviews, this procedure should have been employed here. See Villalobos

v. State, 143 So. 3d 1042, 1046 n.5 (Fla. 3d DCA 2014) (“In the more common

scenario, the juror’s nondisclosure of information is not discovered until after the

trial, resulting in a motion for new trial. Here, the nondisclosure was discovered

during the trial itself, and the issue is whether the court erred in not dismissing the

juror upon discovery of the undisclosed information.          Under either scenario,

however, the analysis remains the same.”).

      I find Appellants’ failure to attempt to confront Taylor after they discovered

those online messages far more relevant in affirming the trial court than their

failure to question him more thoroughly at voir dire.9         In order to allay any

      9 I recognize that the trial court did not rely on this basis in denying
Appellants’ motion to dismiss Taylor, but we are obligated to affirm “if there is
any basis which would support the judgment in the record.” Dade Cty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). And the fact that Allen has
never made this argument on appeal does not alter this conclusion. See State v.
Pitts, 936 So. 2d 1111, 1133 (Fla. 2d DCA 2006) (explaining that “tipsy-
                                       18
concerns that the opinion here places additional burdens on litigants during jury

selection to uncover bias, I do not join Judge Bilbrey’s opinion on this issue. I do,

however, vote to affirm on all issues.




coachman” rule applies “even if the specific basis for affirmance has not been
articulated by the appellee”).

                                         19
OSTERHAUS, J. dissenting.

      I would reverse for a new trial because the foreman of the jury did not

disclose his contempt for cigarette companies when asked directly during voir dire.

When asked during voir dire, “What, if any, opinion do you have of cigarette

companies, including [Defendants]?” the juror answered only: “[T]hey are a

business.” What the juror didn’t reveal was his history of posting sharply negative

views about tobacco companies on social media. Online, he called them leeches

and slaveholders who keep addicts in chains. Appellants only discovered the jury

foreman’s strong views about them after the trial began. At which point, they

immediately sought to remove him and empanel the juror alternate. But the trial

court denied the motion, as well as Appellants’ subsequent motion for a new trial.

      Parties have a constitutional right to an impartial jury. Every prospective

juror has a duty to fully and truthfully answer questions asked of them during voir

dire. Venire members must not falsify any fact or conceal material information.

Because here, the foreman of the jury concealed his negative opinions of cigarette

companies when directly asked for his opinion of them during voir dire, I would

reverse and remand for a new trial.




                                        20
                                           I.

                                           A.

      Our tradition of trial by jury “necessarily contemplates an impartial jury

drawn from a cross-section of the community.” State v. Silva, 259 So. 2d 153, 160

(Fla. 1972). “[A]nything less than an impartial jury is the functional equivalent of

no jury at all,” City of Miami v. Cornett, 463 So. 2d 399, 402 (Fla. 3d DCA 1985),

dismissed, 469 So. 2d 748 (Fla. 1985), and impinges a party’s due process rights.

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The Due Process Clause

entitles a person to an impartial and disinterested tribunal in both civil and criminal

cases, . . . safeguard[ing] the two central concerns of procedural due process, the

prevention of unjustified or mistaken deprivations and the promotion of

participation and dialogue by affected individuals in the decisionmaking

process.”).

      Courts and parties routinely vet prospective jurors with questions before the

trial to “assure the right to a fair and impartial trial by qualified jurors.”

McCauslin v. O’Connor, 985 So. 2d 558, 560 (Fla 5th DCA 2008); Fla. R. Civ. P.

1.431. This process is called “voir dire.” During voir dire, potential jurors have a

“duty . . . to make full and truthful answers . . . neither falsely stating any fact, nor

concealing any material matter.” Roberts ex rel. Roberts v. Tejada, 814 So. 2d

334, 342 (Fla. 2002) (quoting Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953)).

                                           21
“Trial counsel and their clients are entitled to assume that a prospective juror will

truthfully answer the questions posed by the court or by the parties’ counsel.”

McCauslin, 985 So. 2d at 560.        Concealment or failing to answer truthfully

amounts to misconduct that can be extremely prejudicial to a party’s procedural

rights. De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (quoting Loftin,

67 So. 2d at 192 (“full knowledge of all material and relevant matters is essential

to the fair and just exercise of the right to challenge either peremptorily or for

cause.”)).

      A nondisclosure during a voir dire exam warrants a new trial under Florida

law if: (1) the undisclosed information is “relevant and material to jury service in

the case”; (2) the juror “concealed the information during questioning”; and (3) the

juror’s failure to disclose the information isn’t “attributable to the complaining

party’s lack of diligence.” De La Rosa, 659 So. 2d at 241. The failure to grant a

new trial under these circumstances is reversible error. See Kelly v. Cmty. Hosp.

of Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002).

                                         B.

      Appellants moved to dismiss Juror Michael Taylor in this case after

discovering, four days into a three-week trial in 2015, that he’d published social

media comments in 2009 and 2014 expressing contempt for cigarette companies.

He posted:

                                         22
      I quit smoking after 28 years. . . . All the time the government taxed
      the crap out of me to pay for dumb sh-- I never agreed to. Their
      excuse to avoid making tobacco companies to stop. These companies
      and the government are best buddies. They are both le[e]ches on the
      same people . . . addicts like me. Why the h---- do the uppity
      intellectuals think they are better than the guy at the bottom and thus
      tax his weakness? I think it is a sick way of easing their conscience
      too!!
                              *            *           *
      Set yourself free from the people who have you addicted. Stop paying
      their fees just to feel normal. You do not have to quit alone. . . . The
      only thing you are giving up is being a slave to some rich guy who
      sells tobacco products. Break the chains.

(Emphasis added). Appellants argued to the trial court that Juror Taylor had

concealed his posted contempt for them during voir dire despite being asked

directly in a juror questionnaire. Every panel member was asked directly in a juror

questionnaire for their opinion of cigarette companies. In addition, the Court

admonished jurors during voir dire to “‘be honest’ and identify whether they had

‘bad feelings . . . against [the companies]’ that would affect the ‘ability to be fair

and impartial.’” Appellants claimed that they’d have stricken Juror Taylor for

cause because of his hostility toward them, or exercised a strike (they had left one

preemptory strike on the table) had they known his true views.

      The trial court held a hearing on Appellants’ motion to remove Juror Taylor

and denied it. The trial court found that Juror Taylor’s posts suggested bias against

the tobacco parties. And no one disputed that his posts were both relevant and

material to his jury service. But the trial court declined to dismiss Juror Taylor

                                         23
because it thought clear questions hadn’t been asked about his opinion of cigarette

companies during voir dire; Appellants’ counsel hadn’t been diligent about asking

the right questions. After denying the motion, Juror Taylor became the foreman of

the jury. The jury found Appellants liable. And the jury awarded an eight-figure

verdict to the plaintiff.

        The trial court later denied Appellants’ motion for a new trial, which they

based not only upon the previous nondisclosures, but new online material. Post-

trial posts from Juror Taylor’s Facebook account gloated about the verdict, urged

that news be spread about it, and called tobacco companies “liable as Satan and

deserv[ing of] consequences for their actions.”10

                                          II.

        This appeal focuses on the last two prongs of De La Rosa’s three-prong test

for determining when a juror should be dismissed mid-trial for concealing

information during voir dire. De La Rosa, 659 So. 2d at 241. Appellants satisfied

the first De La Rosa prong when the trial court recognized that Juror Taylor’s pre-
10   The posts specifically read:
        I have finally been released from jury duty. I was the foreman
        November 3 thru 26th. Tobacco trial. Awarded $18.6M to the
        plaintiff. (please share and inform others) . . . Tobacco companies
        have lied to the public for over 60 years about how bad their products
        are. . . . For anyone who doesn’t understand how the tobacco
        companies can be held responsible, please re-read the above facts. . . .
        Those who lead others to temptation are as liable as Satan and deserve
        consequences for their actions as well.

                                          24
trial, social media posts showed material bias against tobacco companies relevant

to his service on the jury. No one challenged that particular finding and the

evidence supports it.

      The trial court denied Appellants’ motion to remove Juror Taylor based on

De La Rosa’s second and third prongs. The trial court ruled that Juror Taylor did

not conceal his opinions during voir dire.     And it faulted Appellants for not

diligently asking for Juror Taylor’s negative opinions of them.          But these

conclusions aren’t supported by the record. A juror “conceals” information where

he fails to provide information “squarely asked for.” Birch ex rel. Birch v. Albert,

761 So. 2d 355, 358 (Fla. 3d DCA 2000).           Here, Question 32 of the juror

questionnaire asked: “What, if any, opinion do you have of cigarette companies,

including [Defendants]?”     This question asked “squarely” for Juror Taylor’s

opinion of cigarette companies. But the trial court didn’t think so. It found

Question 32 ambiguous and “not specifically requir[ing] the jurors to disclose

whether they harbor[ed] any negative feelings toward tobacco companies”;

needing “[m]ore specific follow-up questions . . . for Juror Taylor to elaborate on

his views regarding . . . tobacco companies”; and as not reasonably “understood . .

. to encompass the scope and type of information that Juror Taylor provided in his

social media posts.”

      But this is sheer applesauce. “What is your opinion of ____?” is a simple,

                                        25
straightforward question that is asked, understood, and answered by virtually

everyone, everyday; as in: “What is your opinion of/what do you think of [fill in

the blank]—your job; your teacher; your lunch; President Trump; Lady Gaga;

Justin Bieber; iPhone 7; Windows 10; Hollywood; Wall Street; the Gators; the

Hurricanes; the Seminoles; and so on.       Even grade-schoolers understand this

question, no problem. Everyone knows that it calls for a subjective personal

response about the question’s subject, whatever that opinion might be; as in “I love

my job,” “I hate the [Gators, Hurricanes, or Seminoles] (you pick ’em),” or

“School was ehh.”11 This question is particularly effective and easy to answer for

someone with strong opinions about a subject, like Juror Taylor. The disclosures

of other venire members prove this very point. See Roberts, 814 So. 2d at 346

(“The information disclosed by other prospective jurors may be as important in any

particular inquiry by counsel, because the dynamics and context of the entire

process may define the parameters of that which should be disclosed.”). They gave

opinions of cigarette companies like: “all Evil”; “They are all predators”; “To say


11“Ehh” is slang and has been defined as “[t]he end all be all word used by teenage
males when speaking to their parents. Used as a response to questions which they
do not wish to answer.
      Parent: how was school?
      Son: ehh
      Parent: did you have fun eating with your girlfriend after school?
      Son: ehh.”

Http://www.urbandictionary.com/define.php?term=ehh (last visited Feb. 7, 2017).
                                     26
they are the lowest form of capitalism is an insult to capitalism”; “They are

responsible for pushing the sales of a deadly product”; “Deserve what the[y] get”;

“They should not be able to produce such bad products that will cause harm to a

human being”; “I believe they knowingly misled the public about effects of

smoking that they knew were evident”; and “Big business that does not care the

damage they do to those that are addicted to their product.” Appellants could

effectively evaluate the fitness and prejudice of these prospective jurors because of

their truthful answers. Juror Taylor possessed similarly strong negative opinions,

but he concealed them. He didn’t answer Question 32 as due process demanded

and his performance cannot credibly be blamed on the question.

      Juror Taylor had a responsibility to give his opinion of cigarette companies

truthfully and fully, without “concealing any material matter.” Roberts, 814 So. 2d

at 342 (quoting Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953)). See also Minnis

v. Jackson, 330 So. 2d 847, 848 (Fla. 3d DCA 1976) (“The well established rule is

that the failure of a juror to honestly answer material questions propounded to him

on voir dire constitutes bad faith requiring his disqualification from serving on the

jury in the case.”). The trial court had instructed the venire to answer all questions

“as truthfully and fully” as possible. It had also explained that it was “looking for”

prospective jurors with ill feelings toward tobacco companies or other

“preexisting” biases. At one point, the trial court also interrupted defense counsel

                                         27
between questions to individual members of the venire to make sure that

prospective jurors knew exactly the sort of information they were required to

disclose. The trial court explained that the “whole idea is to find out if you have

preexisting views . . . in your background [that] would affect your ability to be fair

and impartial.” For example, “if you [have] some real bad feelings that you’ve had

for a long time against [cigarette] companies [that will always] be in the back of

your mind.”

      Against this backdrop, Appellants were “entitled to assume” that Juror

Taylor gave his “opinion . . . of cigarette companies” fully and truthfully, just as he

was asked. McCauslin, 985 So. 2d at 560. But he didn’t. Tobacco companies

weren’t just “a business” to Juror Taylor, as he answered at voir dire. His online

readers knew that he really thought of them as slaveholders and leeches, essentially

as businesses that owned, consumed, and sucked the blood of other people for their

own advantage.12 His aspersion easily ranks among the worst opinions one can

have of something. And courts have found juror concealment in much closer cases

than this one. See, e.g., Nicholas v. State, 47 So. 3d 297, 301 (finding juror

concealment where a juror knew two witnesses but didn’t respond when the court

said, “If there’s something you think that we need to know about your background


12 See Meriam-Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/leech (last visited Feb. 7, 2017) (defining leeches as carnivorous or
bloodsucking worms).
                                        28
or your life experience, let us know so that we can ask that question”); Wilson v.

State, 608 So. 2d 842, 843 (Fla. 3d DCA 1992) (finding juror concealed material

information by not responding to question “whether [she] could be impartial” when

she had “ill feelings against the State Attorney’s Office”). Due process required

Juror Taylor to reveal his contemptuous opinions of Appellants, so parties could

assess his fitness for service as an impartial factfinder and protect the integrity of

the trial. Whether Juror Taylor’s concealment was intentional or not, the process

required him to give full and frank answers. Roberts, 814 So. 2d at 343 (noting

that “a juror’s nondisclosure need not be intentional to constitute concealment”).

For these reasons, I cannot agree with my colleagues’ conclusion that Juror Taylor

didn’t conceal anything.

      Second, I see no support for the trial court’s finding that Juror Taylor’s

nondisclosure was Appellants’ fault, attributable to their lack of diligence.

Appellants asked the right question. Question 32 asked for Juror Taylor’s “opinion

. . . of cigarette companies.” In responding, Juror Taylor had an obligation to

disclose his material, negative opinion about cigarette companies. Again, the trial

court is incorrect that Appellants’ questions needed to specifically ask for

“negative feelings” about tobacco companies or ask “[m]ore specific follow-up

questions.” Only a single clear question needed to be asked to require truthful and

complete responses from Juror Taylor and the 100+ other members of the venire in

                                         29
this case (Juror Taylor was panel member #99), not repeated questions or magic

words. See Villalobos v. State, 143 So. 3d 1042, 1047 n.6 (Fla. 3d DCA 2014)

(due diligence doesn’t require further inquiry after a clear question is asked); Dery

v. State, 68 So. 3d 252, 255 (Fla. 2d DCA 2010) (finding no obligation to inquire

further after a question is squarely asked). Question 32’s straightforward request

for an “opinion, if any, of cigarette companies” was perfectly adequate to obtain

Juror Taylor’s full and truthful opinion of cigarette companies (just as his fellow

venire members disclosed).

      And so, I would reverse because the trial court’s conclusions regarding

concealment and diligence aren’t supported by the record. Decisions based upon

findings unsupported by competent, substantial evidence constitute an abuse of

discretion. See, e.g., Russenberger v. Russenberger, 654 So. 2d 207, 217 (Fla. 1st

DCA 1995). Juror Taylor concealed his views of Appellants, casting reasonable

doubt about his ability to be fair and impartial. He should have been dismissed and

the alternate juror empaneled, even if the trial court considered the issue a close

call. See Nicholas, 47 So. 3d at 304 (“it is appropriate to remove a juror who has

been less than candid during voir dire”); Bell v. Greissman, 902 So. 2d 846, 847

(Fla. 4th DCA 2005) (close cases involving challenges to the impartiality of

potential jurors should be resolved in favor of excusing the juror rather than

leaving doubt as to impartiality).

                                         30
                                       III.

      Because Appellants were denied a proper jury, I would quash the final

judgment and remand for a new trial.




                                       31
