Fifty Shades of the 3d DCA, With "Most Effective Lawyers" Jeffrey Sloman and Allan Kaiser

My mind wanders. I meant "twenty PCAs from the 3d DCA today."

Actually, you could call it twenty-one because Philip Morris USA, Inc., vs. Antonio Cuculino holds thusly:
The remaining issues raised by Philip Morris do not merit discussion. Accordingly, we affirm the final judgment entered in favor of Mr. Cuculino and against Philip Morris and the orders denying Philip Morris’s post-trial motions; the order granting Philip Morris’s motion for partial summary judgment precluding Mr. Cuculino from seeking punitive damages on his non-intentional tort claims; and the order denying Mr. Cuculino’s motion for attorney’s fees.
Remember reading about this case in December when the Daily Business Review named Jeffrey Sloman and Allan Kaiser "Most Effective Lawyers" for their victory in the case, with the headline "First-of-a-Kind Victory Blames Smoking for Heart Disease?" The article is here.

Today's decision from the 3d is nine pages and deals with various issues, but this caught our eye:
Philip Morris contends the trial court abused its discretion by denying its motion for new trial where Mr. Cuculino’s counsel made improper and prejudicial comments during closing argument. Although we agree that the comments were improper, we nonetheless find no reversible error as the comments were not so highly prejudicial and inflammatory that Philip Morris was denied its right to a fair trial.
During oral argument, Mr. Cuculino’s appellate counsel properly and commendably acknowledged that the complained-of comments were improper. During closing argument, Mr. Cuculino’s counsel explained to the jury that people get paid for the time they work, including actors, who make “astronomical sums,” professional athletes, who make “tremendous sums,” and expert witnesses, who make $750 per hour. Defense counsel objected, and the trial court sustained the objection. Thereafter, Mr. Cuculino’s counsel stated that Philip Morris and R.J. Reynolds gave Mr. Cuculino the “job” of “suffer[ing] from progressive heart disease,” and he deserves to get paid for his “job.” Mr. Cuculino’s counsel then stated: “You know, what is it that’s going to be a just and appropriate figure? Who in their right mind would want to trade places with Mr. Cuculino and take this job.” Defense counsel objected, and the trial court sustained the objection. Immediately thereafter, Mr. Cuculino’s counsel continued this line of argument by stating: “Would someone do it for a million dollars an hour? Probably not. Would someone do it for anything? Probably not.” Defense counsel objected and moved for a mistrial. The trial court sustained defense counsel’s objection and instructed the jury as follows: “Only the jury gets to choose or determine what is fair and adequate compensation. Does everybody understand that?” The jury answered in the affirmative. The trial court, however, did not instruct the jury to disregard these comments, and neither Philip Morris nor R.J. Reynolds requested such an instruction. Whether through overzealousness or otherwise, Mr. Cuculino’s counsel made comments during closing argument that we do not condone, and trial counsel would be well-advised not to utilize such arguments in future closing arguments.
See there? Problem solved. Lesson learned. I imagine that will never occur again again.

Five million from a tobacco company, no attorney's fees for your client and a lashing from Judge Rothenberg is not a hollow victory, as evidenced by the Daily Business Review awarding our friends Jeffrey and Allan the "Most Effective Lawyer" award. Congrats on the affirmance, fellas!

N.B. When I get a lashing, I'd prefer that it come from Judge Ungaro. Although she makes it last longer and adds humiliation, in the end Her Honor welcomes you back into her courtroom if you agree to behave strictly according to Her rules.


  1. i read this case today and tried to figure out what was wrong with the argument as the 3rd certainly didnt give me guidance

  2. Oh, you look to the 3d for GUIDANCE?!

  3. I agree with 8:09. That argument and others similar "If there was a newspaper want ad..." have always been acceptable. It seems a perfectly appropriate way for jurors to consider the issue in context.

  4. Not according to the third dca

  5. The problem with the argument is that it was made by a plaintiff's counsel.

  6. 11;06 . BAZINGA.


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