4th DCA
4th DCA (Melanie Bell)

Former Fort Lauderdale Mayor Jim Naugle, who is pursuing his late sister’s smoking case against Philip Morris USA Inc., failed Wednesday to prevent the questioning of a jury foreman on a panel that produced an $11.2 million verdict.

Cindy Naugle, 65, died Nov. 1, two weeks after the award was returned in Broward Circuit Court. She was awarded $300 million in a previous trial, but the judge reduced the amount to $36.7 million, which was reversed on appeal.

Naugle was a member of a defunct statewide class of smokers and ex-smokers with smoking-related illnesses. The Florida Supreme Court allowed them to pursue individual cases.

The latest jury award was put in jeopardy when the foreman left a voicemail message for Circuit Judge Jack Tuter stating, “I received a text from one of the jurors … on the case last night and … I didn’t like the information that … I got from him—because … something was done wrong … by them during the process of the trial.”

Tuter notified the parties Oct. 23, and Philip Morris asked the next day to preserve the text message and interview all jurors.

Jim Naugle, the personal representative of the estate, objected.

Tuter ordered the foreman to appear in court and bring his cellphone so the judge could review the text message in his chambers. He didn’t rule on interviewing jurors but stayed the case pending Naugle’s appeal.

Fourth District Court of Appeal Judge Robert Gross said such inquiries are not permitted unless the moving party, Philip Morris, can establish actual juror misconduct affected the verdict.

The foreman’s message didn’t establish actual misconduct, only that in the foreman’s view “something was done wrong,” Gross said.

Naugle asserted the message was too vague and further inquiry would invade the juror’s privacy. But Gross noted it was the juror who initiated contact with the judge and he didn’t order a full-blown interview of the jury.

“The court has ordered only a limited inquiry to review the test message that the foreperson received. Presumably, no further questions will be asked if the text message does not meet the standard for ordering a juror interview,” Gross said. “The court acted within its discretion.”

Judges Cory Ciklin and Jonathan Gerber concurred.

Philip Morris didn’t file a brief in the appeal.

Naugle is represented by Richard B. Rosenthal of the Law Offices of Richard B. Rosenthal in Miami and John J. Uustal and Todd R. McPharlin of Kelley Uustal in Fort Lauderdale.