final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy III, Judge;
L.T. Case No. 2007CV36888 (19).
F. Northrip and William P. Geraghty of Shook Hardy &
Bacon LLP, Kansas City, Missouri, and Miami, and Frances
Daphne O'Connor and Geoffrey J. Michael of Arnold &
Porter Kaye Scholer LLP, Washington, DC, for appellant.
T. Moxon, Celene H. Humphries, Maegen Peek Luka and Thomas J.
Seider of Brannock & Humphries, Tampa, and Alex Alvarez
of The Alvarez Law Firm, Coral Gables, and Jordan L. Chaikin
of Chaikin Law Firm PLLC, Fort Myers, for appellee.
Engle progeny case, Philip Morris USA Inc.
("PM") appeals a final judgment entered in favor of
Bernice McCall ("Plaintiff"), individually and as
the personal representative of the estate of Martin McCall
("Decedent"), on her survival and loss of
consortium claims. PM argues that the loss of consortium
award must be vacated because the claim was barred by the
applicable statute of limitations. PM also argues, as it does
in every Engle appeal, that the court's
application of the Engle common core findings
violated its due process rights. Plaintiff cross-appeals,
asserting that the court erred in instructing the jury on the
elements necessary to establish fraudulent concealment and
conspiracy to commit fraudulent concealment as well as the
legal effect of cigarette warning labels. Additionally,
Plaintiff argues that the court erred in reducing the
jury's award by its allocation of the Decedent's
comparative fault. We continue to reject PM's due process
argument based on Philip Morris USA, Inc. v.
Douglas, 110 So.3d 419, 435-36 (Fla. 2013), and likewise
reject Plaintiff's comparative fault argument based on
R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487,
495-96 (Fla. 4th DCA 2015). We also find no error in the
court's instructions on Plaintiff's fraudulent
concealment and conspiracy to commit fraudulent concealment
claims. However, we find merit in both parties' remaining
positions and, for the reasons set forth below, reverse and
remand for a new trial.
sued PM pursuant to Engle, alleging that her
deceased husband died from lung cancer caused by an addiction
to smoking cigarettes manufactured and marketed by PM.
Plaintiff alleged causes of action for strict liability,
fraud by concealment, conspiracy to commit fraud by
concealment, and negligence. Plaintiff sought relief for her
negligence claims under the Florida Wrongful Death Act and,
in the alternative, asserted a survival claim for damages
based on the injuries suffered by Decedent prior to his
death. In conjunction with her alternative
survival claim, Plaintiff also asserted a loss of consortium
claim. In response, PM asserted several affirmative defenses,
including bar by the statute of limitations.
case was set to be tried in two phases. In the first phase,
the jury was asked to determine if Decedent was a member of
the Engle class and, if so, liability, compensatory
damages, and entitlement to punitive damages. The second
phase was reserved for the determination of the proper amount
of punitive damages, if any.
the first phase of trial, Plaintiff presented the following
evidence concerning the Decedent's smoking history,
illness, and death.
was born in 1940 and began smoking cigarettes in the early
1950s when he was twelve or thirteen years old and continued
to smoke them for the next thirty-plus years. Plaintiff
testified that when she met Decedent in 1971, he was smoking
about a pack a day. Decedent primarily smoked cigarettes with
filters, which according to Plaintiff, Decedent believed were
"safe" to smoke. Plaintiff testified that
Decedent's belief came from advertisements, specifically
Parliament advertisements, which stated that cigarettes with
filters were "lower in tar and nicotine." Decedent
went so far as to cut out the filter of a smoked cigarette
and show it to Plaintiff, explaining that the black spots on
the filter were the filtered-out nicotine and tar.
was diagnosed with lung cancer in September of 1992, when he
was 52 years old. Shortly after his diagnosis, Decedent
underwent surgery to remove a cancerous lobe of his right
lung. After his discharge from the hospital, Decedent began
radiation and chemotherapy treatment. Not long thereafter,
Decedent was readmitted to the hospital for breathing
complications. Decedent died in the hospital in November of
1992. The causes of death listed on Decedent's death
certificate were "adult respiratory distress
syndrome" and "possible fungal pneumonia."
also presented testimony from several experts concerning the
actions of the tobacco companies and the health effects of
smoking. This testimony, like the testimony in almost every
Engle case, established that the tobacco companies
knew of the addictive nature of nicotine and the harmful
effects of smoking well before the public health community
did and, over a fifty-year period of time, took concerted
efforts to obfuscate this information while encouraging
people to smoke through marketing efforts. For example, the
tobacco companies marketed filtered cigarettes as having
fewer health risks because they contained less tar and
nicotine when in fact, they knew the opposite.
Motion for Directed Verdict
close of Plaintiff's evidence, PM moved for a directed
verdict on Plaintiff's alternative loss of consortium
claim. PM argued that Plaintiff's claim accrued, at the
latest, when Decedent died in 1992. As Plaintiff did not file
her suit until 2007, nearly fifteen years later, PM
maintained that Plaintiff's loss of consortium claim was
barred by the applicable four-year statute of limitations.
Plaintiff countered that as Decedent's survivor, she was
an Engle class member and, therefore, was entitled
to the tolling effect of the initial Engle lawsuit
filing. The court agreed with Plaintiff and denied PM's
reliance element of Plaintiff's fraudulent concealment
claim, the court instructed the jury as follows:
On this claim, the issue for your determination is whether
[Decedent] reasonably relied to his detriment on any
statement of material fact by PM USA that concealed or
omitted material information not otherwise known or available
concerning the health effects or addictive nature of smoking
cigarettes and, if so, whether such reliance was a legal
cause of [Decedent's] lung cancer.
the conspiracy instruction contained the following direction:
On this claim, the issue for your determination is whether
[Decedent] reasonably relied to his detriment on statements
made in furtherance of PM USA's agreement to conceal or
omit information concerning the health effects or addictive
nature of cigarettes; and, if so, whether such reliance was a
legal cause of his lung cancer.
opposed these instructions, arguing that requiring reliance
on a "statement" was too narrow because it
precluded liability based solely on fraudulently concealed
information. Instead, Plaintiff argued that the jury should
be instructed that PM could be liable if Decedent
"reasonably relied to [his] detriment on an act or
omission taken in furtherance of [PM's] agreement to
conceal or omit information concerning the health effects or
addictive nature of cigarettes . . . ."
PM's request, the court also provided the jury with the
following instruction on the ...