Not
final until disposition of timely filed motion for rehearing.
Appeal
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
502015CA005405XXXXMB.
Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP,
Washington, DC, and Scott A. Chesin of Mayer Brown LLP, New
York, New York, for appellant.
Courtney 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.
Damoorgian, J.
In this
non-Engle[1] 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 Florida's statute of repose.[2] Second, PM
asserts that certain comments made by Plaintiff's 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.
Background
Plaintiff
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 PM's Virginia Slims, both
lights and ultra-lights. Mrs. Gentile was diagnosed with
Stage IV lung cancer in 2014. She passed away less than six
months later.
At
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 low-tar cigarettes.
In
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 to develop such
serious diseases than non-smokers.
There is no safe cigarette. Cigarettes are addictive and
cause serious disease in smokers. For those concerned about
the health risks of smoking, the best thing to do is to quit.
Then,
in November 2002, PM provided newspaper inserts, a 20-page
booklet detailing the health risks of light cigarettes, in
several major newspapers stating that "[l]ow-tar
cigarettes evidence does not indicate a benefit to public
health." Also, in November 2002, PM added onserts, a
folded leaflet placed under the cellophane packaging, to its
light and ultralight cigarettes. Between 2002 and 2008, every
pack of Virginia Slims light cigarettes contained the onsert
which included the following "Information for
Smokers":
There is no such thing as a safe cigarette. The terms
"Ultra Light", "Light",
"Medium" and "Mild" are used as
descriptors of the strength of taste and flavor. These terms,
as well as "low tar" or "lowered tar and
nicotine" also serve as a relative indication of the
average tar and nicotine yield per cigarette, as measured by
...