Florida Judge Grants Mistrial In Latest Engle Progeny Tobacco Case

BRADENTON, Fla. — (Mealey’s) A Florida judge granted a mistrial May 12 in an Engle progeny tobacco trial, two days after the cigarette company defendants questioned his actions in holding a private, off-the-record discussion with the jury after it had begun deliberations; it was not immediately clear whether the mistrial was the result of the motion or of jury deadlock (Jimmie Willis v. R.J. Reynolds Tobacco Co., et al., No. 2008CA009589, Fla. Cir., 12th Judicial Cir., Manatee Co.).

Jimmie Willis smoked for more than 30 years and allegedly developed cancer of the larynx as a result.  A member of the former class in the Engle v. Liggett Group, Inc. (945 So.2d 1246 [Fla. Sup. 2006], cert denied, 128 S.Ct. 96 [2007]) class action, Willis sued R.J. Reynolds Tobacco Co. (RJR) and Philip Morris USA Inc. as permitted by the Florida Supreme Court when it decertified the class and allowed class members to refile their claims individually, taking advantage of the general liability findings of the Engle jury against the tobacco industry.

Trial began April 16 in the Manatee County Circuit Court before Judge Edward Nicholas.  Willis admitted to some liability but asserted that RJR and Philip Morris knowingly sold dangerous products and covered up the health risks of smoking for decades; the tobacco companies maintained that Willis knew of the dangers of smoking as far back as 1965, when the government issued its first tobacco warnings, but never made a serious effort to quit.

The six-member jury began deliberations on May 6.  At the end of the following day, sources told Mealey Publications, the jury indicated that it had a question for the judge and that the question was lengthy.  Counsel agreed to step out of the room and left it up to Judge Nicholas whether he wanted to capture the conversation on the record; Judge Nicholas elected not to involve the court reporter and met with jurors for approximately 25 minutes.

On May 10, the third day of deliberations, RJR and Philip Morris moved for a mistrial, citing what they said were Judge Nicholas’ “improper ex-parte off-the-record communications with the jury.”  According to the companies, Judge Nicholas told their attorneys that in addition to addressing their question, he had spoken with the jurors about their difficulty in reaching a verdict.

The communications were improper for several reasons, including that there had been no indication that the jury had reached an impasse in its deliberations and that Judge Nicholas met with the jury without having a court reporter transcribe the conversations, the companies said.

Sources said Judge Nicholas told the jury it would be “bad” if it was unable to reach a verdict; there was no indication whether the judge suggested any particular course of action, however.

Judge Nicholas called a temporary halt to deliberations on May 10 because two jurors had to be out of court for personal reasons; deliberations were to resume May 12.

Instead, the judge called a mistrial.  A source said his information was that the mistrial was declared because the jury indicated it was deadlocked, not because of the motion.

[Editor's Note:  Full coverage will be in the May issue of Mealey’s Litigation Report: Tobacco. In the meantime, the complaint is available at or by calling the Customer Support Department at 1-800-833-9844. Document #04-100521-011C.  For all of your legal news needs, please visit]

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