         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D15-2337
                 _____________________________

PHILIP MORRIS USA INC.,

    Appellant/Cross-Appellee,

    v.

MARY BROWN, as personal
representative of the Estate of
Rayfield Brown,

    Appellee/Cross-Appellant.
                 ___________________________

On appeal from the Circuit Court for Duval County.
Harvey L. Jay, III, Judge.

                          April 18, 2018


PER CURIAM.

    AFFIRMED.

B.L. THOMAS, C.J., and BILBREY, J., concur; WINSOR, J., dissents
with opinion.
               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________
WINSOR, J., dissenting.

     The main question in this case is what happens when a
deadlocked jury is instructed to reach whatever partial verdict it
can—and to do so without any further deliberations. On the
unusual facts of this case, I would hold that such an instruction
leaves the jury incapable of producing a valid verdict. From the
time jury deliberations begin until the time the jury reaches its
final decision, jurors must be free to weigh and consider arguments
and evidence, to consider other jurors’ points of view, to attempt to
persuade fellow jurors, to argue and debate—in other words, the
jury must be free to deliberate until the very end. Because this jury
did not have that opportunity, we should reverse and remand for
a new trial.

     Mary Brown filed a wrongful-death action against Phillip
Morris USA, Inc., alleging that her husband died from smoking-
related illnesses. She alleged strict liability, negligence, fraudulent
concealment, and conspiracy to commit fraudulent concealment.
The litigation lasted years: One trial was continued during jury
selection, and another ended in a mistrial after this court granted
a writ of prohibition, see Philip Morris USA Inc. v. Brown, 96 So.
3d 468 (Fla. 1st DCA 2012). A third trial ended with a deadlocked
jury.

     In the next trial—the trial at issue here—the jury’s verdict
form asked (among other things) whether Philip Morris’s actions
legally caused the husband’s death, the amount of any
compensatory damages, the relative percentages of fault, and
whether punitive damages were warranted. After deliberating for
approximately four or five hours, the jury sent out a note saying it
was “stuck on the percentage” and asking “[w]hat are our options?”

     After conferring with counsel, the court told the jury to follow
instructions already given. The jury continued deliberating for
some two additional hours before sending out another note. This
one explained that jurors “have not been able to agree on question
#4 [regarding comparative fault] and therefore we cannot go any
further.” After more discussion with counsel, the court delivered a




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standard Allen 1 charge, asking the jury to continue its
deliberations. But after roughly an hour more, the jury sent out
another note: “Now hung on question #2 [regarding fraudulent
concealment]. Some have change[d] their mind. It started out on
question #4. Some say yes, and some no. Now need white out for
question #2. Yesterday it was yes now today it hung [sic].”

    Lawyers for both sides offered their views on how the court
should proceed. Both sides agreed the court could not give a second
Allen charge. 2 Philip Morris argued the court should grant a
mistrial since the jury could not reach consensus after its Allen
charge. Mrs. Brown, though, argued that the court should accept a
partial verdict on the issues the jury did decide. Ultimately, the
court brought the jury back and told them to return to the jury


    1  An Allen charge is a supplemental instruction courts
frequently give when a jury struggles to reach a verdict. Gahley v.
State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990) (citing Allen v.
United States, 164 U.S. 492 (1896)).
    2 In Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), the
Fourth District followed United States v. Seawell, 550 F.2d 1159
(9th Cir. 1977), and adopted a per se rule that giving a second Allen
charge is fundamental error. No other district in this state has
adopted this rule, Nottage v. State, 15 So. 3d 46, 49 (Fla. 3d DCA
2009), and many federal courts have explicitly rejected it, see, e.g.,
United States v. Davis, 779 F.3d 1305, 1313 (11th Cir. 2015) (“We
have never adopted a per se rule against successive Allen charges.
Other circuits have held there is not a per se rule.” (collecting
cases)). Florida’s standard jury instructions do include a comment
that the deadlock instruction “should be given only once,” but that
comment is based solely on Tomlinson, Fla. Std. Jury Instr. (Civ.)
801.3, and standard jury instructions are not binding precedent,
BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 292 (Fla.
2003); see also In re Std. Jury Instrs. in Civil Cases—Report No.
09-01 (Reorganization of the Civil Jury Instrs.), 35 So. 3d 666, 671
(Fla. 2010) (cautioning “that any comments associated with the
instructions reflect only the opinion of the Committee and are not
necessarily indicative of the views of this Court as to their
correctness or applicability”).

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room, to white out verdict-form responses on which the jury was
no longer unanimous, and to fill in answers where there was
unanimity. The court specifically told the jurors to not deliberate
any further in doing so.

     After about six minutes in the jury room, the jury returned
with a partial verdict, answering two of the verdict form’s six
questions. The jury agreed that the husband was a member of the
Engle class, see Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla.
2006), and that Philip Morris’s conspiracy to conceal was a legal
cause of the husband’s death. Because the jury found liability on
one intentional-tort theory, its inability to provide verdicts on
other theories or on comparative-fault percentages was not critical,
see § 768.81(4), Fla. Stat. (2013); see also Schoeff v. R.J. Reynolds
Tobacco Co., 232 So. 3d 294, 304 (Fla. 2017) (“[T]he comparative
fault statute does not apply to Engle progeny cases in which the
jury finds for the plaintiff on the intentional tort claims.”). But
there remained the unanswered questions of the amount of
compensatory damages and whether punitive damages were
warranted.

     Over Philip Morris’s objection (and motion for mistrial), the
court accepted the partial verdict and scheduled another trial to
resolve the remaining issues. At the end of that trial, the jury
awarded compensatory damages but found Philip Morris not liable
for punitive damages. Philip Morris appealed, contending that the
trial court was wrong to accept the partial verdict.

      On appeal, Philip Morris’s opening position is that Florida
does not recognize partial civil verdicts, that courts must declare
mistrials whenever juries cannot agree on all issues. Philip Morris
argues that no Florida appellate court has ever sanctioned a
partial verdict like this one. But neither has Philip Morris cited a
Florida appellate decision explicitly precluding the practice.
Partial verdicts are routinely used in Florida criminal cases, see,
e.g., State v. Muhammad, 148 So. 3d 159, 159-60 (Fla. 1st DCA
2014); Avilla v. State, 86 So. 3d 511, 513 (Fla. 2d DCA 2012), and
they have been accepted in civil cases in federal courts, see, e.g.,
Kerman v. City of New York, 261 F.3d 229, 242 n.9 (2d Cir. 2001)
(“Kerman also argues that [the] decision to accept a partial verdict
was error because there is no authority for this procedure. We

                                 4
disagree. In the absence of authority prohibiting such a partial
verdict in a civil case, and Kerman cites none, we believe that at
the very least a trial judge, in the exercise of sound discretion, may
follow such a course.”); see also Bristol Steel & Iron Works v.
Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994); Bridges v.
Chemrex Specialty Coatings, Inc., 704 F.2d 175, 180 (5th Cir.
1983).

     Regardless of whether partial verdicts are categorically
prohibited, I would hold that the specific circumstances of this case
warrant a new trial. With any partial verdict, there is a “risk that
the jury will ‘premature[ly] conver[t] . . . a tentative jury vote into
an irrevocable one,” United States v. Moore, 763 F.3d 900, 911 (7th
Cir. 2014); accord United States v. Wheeler, 802 F.2d 778, 781 (5th
Cir. 1986), and when a jury had been unanimous on certain points
and is later told to return to the jury room to answer whatever
questions they can—without further deliberating—some jurors
will feel compelled to vote consistent with their earlier position.

     “It has long been the law that a trial court should not couch
an instruction to a jury or otherwise act in any way that would
appear to coerce any juror to reach a hasty decision or to abandon
a conscientious belief in order to achieve a unanimous position.”
Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999). In deciding
whether a court’s instructions have violated this principle, we
examine de novo the totality of the circumstances to see if the
instructions “create a serious risk of coercion.” Id. at 978.
Considering the totality of the unique circumstances here, a new
trial is warranted.

     While attorneys argued about how to handle the jury’s last
note, the jury, having already changed its collective mind on some
issues, remained together in the jury room. And there is no reason
to suppose the jurors’ fluid deliberations stopped while the
attorneys argued. Cf. United States v. Byrski, 854 F.2d 955, 962
(7th Cir. 1988) (noting that “the state of jury deliberations is ever-
changing”). When later told to end their deliberations (essentially
to memorialize where they left off earlier), reasonable jurors might
not have understood their options. They might not have
understood that they were not locked into the positions they held
immediately before sending their last note—that their vote could

                                  5
accommodate any new view intervening discussions produced.
They might not have understood that their remaining duty was
more than a ministerial duty to record their earlier positions. Cf.
Harrison v. Gillespie, 640 F.3d 888, 899 (9th Cir. 2011) (explaining
that jurors’ preliminary votes can play important roles in the
deliberative process but that these informal polls “do not constitute
a final verdict”); cf. also Brutton v. State, 632 So. 2d 1080, 1083
(Fla. 4th DCA 1994) (“The court’s questioning created an
impression that the juror did not have an absolute right to recede
from her vote in the jury room during the polling process.”).

     When the jurors’ last note told the court they were “hung” on
some issues, no juror was then obligated to maintain his or her
tentative vote on any issue. See United States v. Straach, 987 F.2d
232, 243 (5th Cir. 1993) (“[A] jury has not reached a valid verdict
until deliberations are over . . . .” (quoting United States v. Taylor,
507 F.2d 166, 168 (5th Cir. 1975))). Yet any juror wanting to
explain (or even identify) his or her changed view would feel
restricted by the court’s specific instruction to cease deliberations.
To the point of the final instruction, juror deliberations had been
fluid—the jury found (and then lost) agreement on some issues—
but by precluding further deliberations, the court precluded
further opportunities for additional changed minds. Cf. Straach,
987 F.2d at 243 (noting that “continuing deliberations may shake
views expressed on counts previously considered” (quoting Taylor,
507 F.2d at 168)).

     It is no answer to say that the jury was polled, with each juror
announcing that the verdict was his or her own. The question is
not whether all jurors did, in fact, vote for the ultimate verdict; the
question is whether all jurors did so knowing they could change
their minds—or try to change others’ minds. The subsequent poll
offers therefore no cure. See Moore, 763 F.3d at 910 (determining
that trial court’s error in instructing jury to return a partial verdict
while deliberations were ongoing was not cured by polling of the
jury).

    For these reasons, I would reverse and remand for a new trial.
This would make it unnecessary to address Philip Morris’s
independent argument that alleged juror misconduct requires a
new trial. As to Mrs. Brown’s conditional cross appeal, I would

                                   6
reject Philip Morris’s Tipsy Coachman arguments, and I would
hold that Mrs. Brown may seek punitive damages on her
negligence and strict-liability claims in a new trial. See Soffer v.
R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1221 (Fla. 2016). But
Mrs. Brown asserted she would abandon her cross appeal if she
prevailed in the main appeal, which—despite my view—she now
has.

                  _____________________________

Amir C. Tayrani of Gibson, Dunn & Crutcher LLP, Washington,
DC; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC;
Hassia Diolombi and Kenneth J. Reilly of Shook, Hardy & Bacon
LLP, Miami; and W. Edwards Muñiz of Shook, Hardy & Bacon
LLP, Tampa, for Appellant/Cross-Appellee.

John S. Mills and Courtney Brewer of The Mills Firm, PA,
Tallahassee; and John S. Kalil of Law Offices of John S. Kalil, P.A.,
Jacksonville, for Appellee/Cross-Appellant.




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