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Florida Third DCA affirms order granting plaintiff new trial in Engle-progeny tobacco case due to trial court’s erroneous dismissal of prospective jurors without allowing examination by plaintiff’s counsel

On October 28, 2020, in Frogel v. Philip Morris USA, Inc., No. 4D19-2781, the Florida Fourth DCA affirmed the order of a new trial in an Engle-progeny tobacco case after concluding that the trial court erred in granting a defense request to excuse eight prospective jurors based solely on their answers in written questionnaires and without first allowing plaintiff’s counsel to question them.  The Fourth DCA noted that while the standard of appellate review for excusing a juror is subject to the abuse of discretion standard, where a trial court’s ruling is based entirely on written evidence, the appellate court is in the same position as the trial court in weighing the evidence and de novo review is warranted.  See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005).  The Fourth DCA cited Irimi v. R.J. Reynolds Tobacco Co., 234 So. 3d 789, 796 (Fla. 4th DCA 2018), another Engle-progeny case in which a new trial was granted based on the trial court’s dismissal of jurors without allowing the defense to question them. In Irimi, the Fourth DCA held that “failure to allow counsel to inquire into a prospective juror’s potential biases amounts to an abuse of discretion warranting reversal unless it becomes ‘conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant,”’ quoting in part from Melendez v. State, 700 So. 2d 791, 792 (Fla. 4th DCA 1997). The Fourth DCA noted that other cases have also resulted in reversal where the trial court did not permit questioning by counsel during voir dire. See O’Connell v. State, 480 So. 2d 1284, 1286-87 (Fla. 1985) (finding error in excluding prospective jurors after questioning by only the prosecutor and not the defense); Green v. State, 575 So. 2d 796, 797 (Fla. 4th DCA 1991) (holding the trial court erred in striking two venire members, who doubted their ability to be impartial, without first giving the defendant an opportunity to question them). The Fourth DCA concluded that it was not “conclusively clear” that any or all of the eight jurors could not be impartial based entirely on the written answers in the questionnaire and without the benefit of oral examination by both parties.