Rehearing Denied November 15, 2019
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
J. Michael of Arnold & Porter Kaye Scholer LLP, Washington,
DC, and Scott A. Chesin of Mayer Brown LLP, New York, New
York, for appellant.
Brewer and John S. Mills of The Mills Firm, P.A.,
Tallahassee, and Robert W. Kelley and Eric S. Rosen of Kelley
Uustal, PLC, Fort Lauderdale, for appellee.
non-Engle  wrongful death action, Philip Morris
USA Inc. ("PM") appeals the final judgment entered
in favor of Michael Gentile as Representative of the estate
of his deceased wife, Brenda Gentile ("Plaintiff").
PM maintains the court erred on two grounds. First, PM argues
that the court improperly denied its motion for directed
verdict on its three fraud-based claims because Plaintiff
failed to prove PM made a false or misleading statement about
its light or low-tar cigarettes after May 12, 2003, as
required by Floridas statute of repose. Second, PM asserts
that certain comments made by Plaintiffs counsel during
closing arguments necessitate a new trial. As to the comments
made during closing, we affirm without comment. With respect
to the fraud-based claims, we find that PM is entitled to a
directed verdict and, for the reasons set forth below,
reverse and remand for a new trial on the remaining strict
liability and negligence claims.
filed a wrongful death action against PM asserting Mrs.
Gentile died from lung cancer caused by her addiction to
cigarettes designed, manufactured, advertised, marketed,
distributed and/or sold by PM. In his suit, Plaintiff alleged
causes of action for strict liability, negligence, fraud by
concealment, fraud by misrepresentation, and conspiracy to
commit fraud by concealment. At trial, it was established
that Mrs. Gentile smoked at least a pack of cigarettes a day
for over 30 years. She smoked several brands throughout the
years, but her main brand was PMs Virginia Slims, both
lights and ultra-lights. Mrs. Gentile was diagnosed with
Stage IV lung cancer in 2014. She passed away less than six
trial, Plaintiff presented testimony from various experts
concerning the American tobacco industry, generally, and the
actions the tobacco companies took to market their products
to consumers while concealing their harm. For example, in the
1970s, the tobacco companies began marketing
"light" and "ultra-light" cigarettes as
having fewer health risks because they contained less tar and
nicotine despite knowing the opposite to be true. In 1999, PM
admitted as much when it created a public website informing
the public that cigarettes were highly addictive and caused
diseases and that "[s]mokers should not assume Light or
Ultra Light brands are safe or are safer than full flavor
brands." The website also provided
links to various health authorities concerning light and
2000, PM issued its official position regarding "smoking
and health issues" on its public website, stating:
Philip Morris USA agrees with the overwhelming medical and
scientific consensus that cigarette smoking causes lung
cancer, heart disease, emphysema and other serious diseases
in smokers. Smokers are far more likely ...