In Philip Morris USA Inc. v. Brown, 1D15-2337 (Fla. 1st DCA April 18, 2018), the First District Court of Appeal recently resolved an appeal where the jury – after much deliberation – was instructed to stop deliberating and issue a partial verdict. While the verdict was affirmed without a written opinion by a Per Curiam Affirmance (“PCA”), a lengthy dissent was written, which provides guidance to practitioners on how to handle a situation where the jury claims it is deadlocked.
Brown sought damages from Phillip Morris USA, Inc. for the wrongful-death of her husband due to smoking-related illnesses. The case had been tried three previous times resulting in continuances, mistrials, and a deadlocked jury. The jury deliberated during the fourth trial for 4-5 hours when it sent out a note indicating they were having trouble agreeing to comparative fault percentages. The jury was instructed to deliberate again, which did for the next 2 hours before sending out a similar note “we cannot go any further.” The trial court then gave a standard Allen charge asking the jury to continue deliberating. One hour later, the jury sent out another note indicating it was “hung” on a question regarding fraudulent concealment but indicating that some of the jurors have changed their minds. Both parties agreed a second Allen charge was not proper, and Phillip Morris moved for a mistrial since the jury could not reach a verdict after the first Allen charge. Brown argued the court should accept a partial verdict on the issues the jury did decide. The trial court sided with Brown. It instructed the jurors to decide what they unanimously agreed upon but not to deliberate any further. The jury issued a partial verdict, answering two of the verdict form’s six questions. A fifth trial then took place on the remaining unanswered jury questions.
Philip Morris appealed arguing that Florida does not recognize partial civil verdicts, and that the courts must declare mistrials when juries cannot agree on all issues. The Dissent pointed out that no Florida appellate court has ruled one way or another on this issue in the civil context, although partial verdicts are routinely used in criminal cases and in federal civil cases. The dissent concluded that the circumstances of this case warrant a new trial. For example, the jury’s last note indicated that some of them already changed their minds, and “there is no reason to suppose the jurors’ fluid deliberations stopped while the attorneys argued.” The dissent also found fault in the trial court instructing the jurors to end their deliberations. “Reasonable jurors might not have understood . . . that they were not locked into the positions they held immediately before sending their last note – that their vote could accommodate any new view intervening discussion produced.” The dissent believed this instruction left the jury incapable of producing a valid verdict because they were essentially not “free to deliberate until the very end.”
Brown is an unusual case. It involved five trials and a series of notes from the jury indicating their problems resolving all the issues. It is possible, given the usual nature of the appeal, that the majority believed the jury was hung and that Florida law did not prohibit partial verdicts in civil cases. But, in more usual cases, it is advisable to repeatedly send the jury back to continue its deliberations until it reaches a unanimous verdict. Only when the jury expresses unequivocally that it is hopelessly deadlocked should a mistrial be sought. The jury should not be considered deadlocked if the jurors give any indication that they continue to weigh and consider arguments, persuade one another, or debate the evidence. It is further not advisable to request a partial verdict under any circumstance. Florida law has not expressly allowed such a scenario in civil cases. Further, a partial verdict will simply lead to additional drawn out litigation necessitating a second trial.
Notably, this per curiam affirmance decision will not have any precedential impact going forward. As a result, this issue still remains an unsolved issue in Florida civil jurisprudence.
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