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Philip Morris USA Inc. v. McCall

Florida Court of Appeals, Fourth District

December 13, 2017

PHILIP MORRIS USA INC., Appellant,
v.
BERNICE MCCALL, individually and as Personal Representative of the Estate of MARTIN MCCALL, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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).

          David 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.

          Shea 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.

          DAMOORGIAN, J.

         In this Engle[1] 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.

         The Facts

         Plaintiff 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.[2] 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.

         The 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.

         Evidence

         During the first phase of trial, Plaintiff presented the following evidence concerning the Decedent's smoking history, illness, and death.

         Decedent 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.

         Decedent 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."

         Plaintiff 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.

         PM's Motion for Directed Verdict

         At the 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 motion.

         Jury Instructions

         On the 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.

         Similarly, 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.

         Plaintiff 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 . . . ."

         Per PM's request, the court also provided the jury with the following instruction on the ...


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