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Philip Morris USA Inc. v. Gentile

Florida Court of Appeals, Fourth District

September 18, 2019

PHILIP MORRIS USA INC., Appellant,
v.
MICHAEL GENTILE, as Personal Representative of the ESTATE OF BRENDA GENTILE, Appellee.

         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 ...

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