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Florida Second DCA reverses tobacco litigation verdict for plaintiff due to trial court's note to jury discouraging them from asking for a readback of witness' deposition testimony

On November 15, 2017, in Philip Morris USA v. Duignon, No. 2D15-5055, the Florida Second DCA reversed a trial court’s final judgment for the plaintiff in a tobacco litigation wrongful death case. In response to a jury inquiry about obtaining the transcript of the testimony of a witness whose deposition had been read into evidence during the trial, the trial court had responded that although a readback was "not impossible," it "is not generally done" and that the jury should rely on its "collective recollection." The Second DCA concluded that this was an abuse of discretion because it was calculated to prevent the jury from asking for a readback and thereby interfered with the jury's ability to discharge its duties as the finder of fact in this case. The Second DCA noted that the leading Florida case on readbacks of trial testimony is Hazuri v. State, 91 So. 3d 836 (Fla. 2012), in which the Florida Supreme Court had ruled that a trial court was required to inform the jury of the possibility of a readback if asked about the availability of a transcripts. The Hazuri Court adopted the following rules: “(1) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and (2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back."

The Second DCA also found reversible error in the trial court’s failure to instruct the jury that the plaintiff must prove that the decedent relied on a misapprehension concerning a material fact that the defendants concealed from him. The instruction given had inaccurately told the jury to simply determine whether the decedent had relied on the defendants to disclose material facts. The Court held that in a claim founded in fraud, the link between a defendant's conduct and the plaintiff's harm is supplied in part by the requirement that the plaintiff detrimentally and reasonably relied on something the defendant said or failed to say.