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recognizing that counsel has wide latitude in cross-examining adverse witness to show bias
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No. 3D19-239
06-03-2020
PHILIP MORRIS USA, INC., Appellant/Cross-Appellee, v. Brenda CHADWELL, etc., Appellee/Cross-Appellant.
Shook, Hardy & Bacon LLP, and Frank Cruz-Alvarez ; and Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, D.C.), and David E. Kouba, (Washington, D.C.), for appellant/cross-appellee. Burlington & Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Law Offices of William J. Wichmann, P.A., and William J. Wichmann (Fort Lauderdale), for appellee/cross-appellant.
Shook, Hardy & Bacon LLP, and Frank Cruz-Alvarez ; and Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, D.C.), and David E. Kouba, (Washington, D.C.), for appellant/cross-appellee.
Burlington & Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Law Offices of William J. Wichmann, P.A., and William J. Wichmann (Fort Lauderdale), for appellee/cross-appellant.
Before SALTER, HENDON, and LOBREE, JJ.
HENDON, J.
In this Engle-progeny action, the defendant below, Philip Morris USA, Inc. ("Philip Morris"), appeals from a final judgment entered pursuant to a jury verdict in favor of the plaintiff below, Brenda Chadwell ("Plaintiff" or "Mrs. Chadwell") as personal representative of the estate of her husband, James L. Chadwell ("Mr. Chadwell"). We affirm. We also certify conflict with two decisions of the First District Court of Appeal.
Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
Mrs. Chadwell filed a notice of cross-appeal. However, she has not raised any issues on cross-appeal.
I. Background
A. Asbestos Litigation
Prior to filing the action against Philip Morris, the Plaintiff filed suit against various asbestos companies. The Plaintiff, through her attorney, submitted an unsigned Individualized Review Claim form to the Eagle Picher Industries Personal Injury Settlement Trust. The claim form indicated that Mr. Chadwell's father, Johnnie Chadwell, was directly exposed to asbestos for decades through various jobs, and that Mr. Chadwell was indirectly exposed to asbestos through his father's clothing. The claim form further indicated that Mr. Chadwell was diagnosed with, and died of, lung cancer in 1993, and that his death was "asbestos related." As to Mr. Chadwell's smoking history, the claim form indicated that he smoked one pack of cigarettes per day from 1978 to 1991. The Plaintiff eventually settled the asbestos litigation for approximately $10,000.
B. 2010 Tobacco Litigation against Philip Morris
In 2010, the Plaintiff filed suit against Philip Morris. In the operative complaint, the Plaintiff alleged Mr. Chadwell was an Engle class member who was addicted to cigarettes manufactured, marketed, and sold by Philip Morris, and that Mr. Chadwell's addiction caused him to develop lung cancer, which resulted in his death. The Plaintiff alleged counts for strict liability, negligence, civil conspiracy to fraudulently conceal, and fraudulent concealment. The Plaintiff sought both compensatory and punitive damages.
Prior to trial, Philip Morris deposed Mrs. Chadwell regarding Mr. Chadwell's exposure to asbestos and the asbestos litigation. During the deposition, Mrs. Chadwell testified that the asbestos lawsuit did not relate to the death of her husband, but only to his possible exposure to asbestos through his father's exposure to asbestos. Mrs. Chadwell denied having made any claims in the asbestos lawsuit that Mr. Chadwell's cancer was related to his exposure to asbestos, as there was nothing in his records indicating that his lung cancer was caused by asbestos. During the deposition, she also acknowledged that she settled the asbestos litigation with various companies for over $10,000.
Prior to trial, the Plaintiff filed a motion in limine seeking to preclude any evidence that Mr. Chadwell worked around asbestos or that Mrs. Chadwell suspected that asbestos was a cause of Mr. Chadwell's death. The Plaintiff also sought to exclude any evidence, argument, or testimony regarding the asbestos litigation. Mrs. Chadwell claimed the lung cancer was caused by smoking, and Philip Morris claimed the lung cancer was caused solely by NUT Midline Carcinoma. The Plaintiff argued that any testimony or evidence related to asbestos exposure or the asbestos lawsuit would be inadmissible under section 90.403 of the Florida Statutes because its probative value would be substantially outweighed by the danger of unfair prejudice because it could mislead the jury.
NUT carcinoma (formerly NUT midline carcinoma ), is a rare genetically defined, very aggressive squamous cell epithelial cancer that usually arises in the midline of the body. It is a genetic mutation, not an inherited disease, and is unrelated to smoking. See https://en.wikipedia.org/wiki/NUT_midline_carcinoma.
In opposition, Philip Morris argued that the claim form was in conflict with the allegations and/or discovery in the instant case. The claim form indicated that Mr. Chadwell's death was "asbestos related," however, in the tobacco litigation, Mrs. Chadwell alleged in the complaint that Mr. Chadwell's death was as a result of his addiction to cigarettes. As to Mr. Chadwell's smoking history, the claim form indicated that he smoked one pack of cigarettes per day from 1978 to 1991, however, in discovery in the tobacco case, the Plaintiff indicated Mr. Chadwell smoked two packs of cigarettes per day from 1977 to 1993. Philip Morris argued that these conflicts were relevant to attack Mrs. Chadwell's credibility as a witness. Philip Morris advised the trial judge that they would not argue that Mr. Chadwell's exposure to asbestos was an alternate cause of his lung cancer /death. Philip Morris urged the court to deny the motion in limine, and allow Philip Morris to fully cross-examine Mrs. Chadwell as to the asbestos litigation and the claim form. Philip Morris further argued that the evidence would not be unduly prejudicial or risk misleading the jury.
The trial court initially denied the motion in limine. A few weeks before the commencement of the trial, the Plaintiff filed a memorandum in support of its motion to exclude the asbestos claim form. At a hearing on the motion, the trial court ruled that it would not allow Philip Morris to introduce the claim form because neither party contended that asbestos was an alternative cause of Mr. Chadwell's cancer. Further, based on section 90.403 of the Florida Statutes and to avoid jury confusion, the trial judge advised Philip Morris to limit its questioning on the issue of the conflict to whether, if in "another court proceeding," the Plaintiff affirmed in writing that Mr. Chadwell smoked one pack of cigarettes per day. The Plaintiff had averred that Mr. Chadwell smoked two packs per day. Philip Morris, however, was not allowed to inform the jury that the earlier statement was made in an asbestos-related claim.
During trial, in conformity with the trial court's ruling, Philip Morris asked Mrs. Chadwell the following questions on cross-examination :
Thereafter, out of the presence of the jury, Philip Morris proffered the asbestos claim form and the testimony it would have elicited from Mrs. Chadwell during cross-examination. Among other things, Philip Morris proffered that Mrs. Chadwell would have testified that she filed a lawsuit against various asbestos companies prior to filing the tobacco lawsuit; in the asbestos lawsuit, she claimed Mr. Chadwell's cancer and death was caused by asbestos; the attorney who represented her in the asbestos litigation spoke to her, and he submitted a claims form on her behalf under penalty of perjury; the claim form states that Mr. Chadwell smoked one pack of cigarettes per day for thirteen years, but in the tobacco litigation, Mrs. Chadwell testified that Mr. Chadwell smoked two packs per day for sixteen years; although she does not remember the claim form, the information in the claim form most likely came from her; and Mrs. Chadwell resolved the matter with the asbestos companies.
Q. Now after [Mr. Chadwell's] father died of lung cancer, the Chadwell family, specifically the uncle, filed an asbestos lawsuit on behalf of his father; is that right?
A. Yes.
Q. And, Ms. Chadwell, in the mid-1990s into around 2000, on behalf of your husband, you made a claim for money damages in another court proceeding, didn't you?
A. Yes.
Q. And in that other court proceeding, a written statement was made on your behalf that said your husband smoked one pack of cigarettes per day from 1978 to 1991; is that correct?
A. Yes.
As to the issue of reliance, Philip Morris asked Mrs. Chadwell and other family members several questions relating to Mr. Chadwell's reliance on any statements or advertising from Philip Morris that influenced his decision to smoke cigarettes.
As to the fraud claims, Philip Morris and the Plaintiff proposed different jury instructions. Philip Morris proposed the following instruction:
On Plaintiff's claim for fraudulent concealment against Philip Morris USA Inc., the issues for your determination are whether James Chadwell reasonably relied to his detriment on any statement made by Philip Morris USA Inc. that concealed or omitted material facts not otherwise known or available to James Chadwell regarding the health effects of cigarettes or their addictiveness and, if so, whether such reliance was a legal cause of his lung cancer and death.
(emphasis added).
Over Philip Morris’ objection, the jury was instructed as follows:
The issues for your determination on plaintiff's claim based on misinformation, omission, or statements made in furtherance of an agreement to fraudulently conceal are whether James Chadwell reasonably relied to his detriment on misinformation, omission, or a statement that was false or misleading due to the concealment or omission of material information regarding the health effects of cigarettes or their addictive nature, made in furtherance of an agreement with other tobacco companies or organizations to conceal or omit material facts not otherwise known or available to him regarding the health effects of cigarettes
or their addictive nature, and if so, whether such reliance was a legal cause of his lung cancer and death.
During closing argument, Philip Morris argued, in part, as follows:
.... [A]nother legal proceeding was filed in the mid ‘90s on Mrs. Chadwell's behalf. In that other legal proceeding, she was seeking money damages for her husband's cancer and death. And in that other legal proceeding, a statement was made on her behalf in writing that her husband smoked one pack per day from 1978 to 1991. When this case was filed in 2010, Mrs. Chadwell says that her husband smoked twice as much or two packs per day.
The jury returned a verdict in favor of the Plaintiff. As to the fraud claims, the jury answered "Yes" to the following two questions:
3. Did James Chadwell reasonably rely to his detriment on any misinformation, omission or statement made by Philip Morris USA Inc. which concealed or omitted material facts not otherwise known or available to him concerning the health effects or addictive nature of smoking cigarettes and if so, was such reliance a legal cause of his lung cancer and death?
4. Did James Chadwell reasonably rely to his detriment on any misinformation, omission or statement made in furtherance of an agreement to conceal or omit material information regarding the health effects or addictive nature of smoking cigarettes and if so, was such reliance a legal cause of his lung cancer and death?
The jury found that Philip Morris was 70% at fault and Mr. Chadwell was 30% at fault, and awarded $2.4 million in damages to the Plaintiff. The jury also found that punitive damages were warranted against Philip Morris. However, in the Phase II proceeding, the jury did not award any punitive damages to the Plaintiff. Thereafter, the trial court denied all post-trial motions. The trial court entered a final judgment in favor of the Plaintiff in the amount of $2.4 million.
Philip Morris raises the following issues on appeal: (1) Whether a new trial is warranted because the trial court erred by excluding relevant evidence concerning the Plaintiff's previous asbestos lawsuit in which she stated that Mr. Chadwell had been diagnosed with lung cancer and his death was "asbestos related," and by not permitting Philip Morris to more fully cross-examine Mrs. Chadwell as to the asbestos litigation and the contents of the asbestos claim form; (2) Whether the Plaintiff failed to present evidence that Mr. Chadwell explicitly relied on any detrimental statement, advertising, or omission by Philip Morris; and (3) Whether the jury instruction on the fraud counts relating to the reliance requirement was incorrect.
Philip Morris has raised two other issues which have been rejected by the Florida Supreme Court, but raises the issues to preserve them for further review in the United States Supreme Court. See R.J. Reynolds Tobacco v. Marotta, 214 So. 3d 590 (Fla. 2017) (rejecting argument that federal law impliedly preempts the plaintiff's strict liability and negligence claims because they are based on the Engle verdict); Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 422 (Fla. 2013) (rejecting argument that the trial court violated tobacco company's federal due process rights by allowing the plaintiff to rely on the Engle Phase I findings to establish the conduct elements of the claims).
II. ISSUES
A. Whether the trial court abused its discretion by not permitting Philip Morris to introduce the claim form and to fully cross-examine Mrs. Chadwell regarding the asbestos litigation.
Section 90.608(2), Florida Statutes, permits any party to "attack the credibility of a witness by: [s]howing that the witness is biased." See also Mendez v. State, 412 So. 2d 965, 966 (Fla. 2d DCA 1982) (holding that "[w]henever a witness takes the stand, he ipso facto places his credibility in issue"). A matter that demonstrates a witness’ bias includes any motivation for a witness to testify untruthfully. See Mardis v. State, 122 So. 3d 950, 953 (Fla. 4th DCA 2013) ; Williams v. State, 912 So. 2d 66 (Fla. 4th DCA 2005). Further, "[i]t is well settled that counsel is given wide latitude in cross-examining an opposing party's witness to show that witness's interest, inclination, bias or prejudice." Del Monte Banana Co. v. Chacon, 466 So. 2d 1167, 1173 (Fla. 3d DCA 1985) ; see also Dade Cty. v. Midic Realty, Inc., 551 So. 2d 499, 501 (Fla. 3d DCA 1989) (noting that "attorneys are to be given wide latitude in cross-examination of witnesses for the purpose of allowing the attorney to try to demonstrate the existence of interest, bias or prejudice on the part of a witness"); Nelson v. State, 395 So. 2d 176 (Fla. 1st DCA 1980). However, "[i]t is within the reasonable discretion of the trial court to determine to what length it will go in permitting cross-examination of a witness to show his interest, bias or prejudice." Id. Moreover, evidence of a witness’ bias "may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact." Mardis v. State, 122 So. 3d 950, 954 (Fla. 4th DCA 2013) ; see also § 90.403, Fla. Stat. (2019) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. ..."). A "trial court's ruling on a section 90.403 issue will be upheld on appeal absent an abuse of discretion." Coddington v. Nunez, 151 So. 3d 445, 447 (Fla. 2d DCA 2013) (quoting Ramirez v. State, 810 So. 2d 836, 843 (Fla. 2001) ). Thus, "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (quoting Delno Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942) ).
Here, Philip Morris sought to introduce the asbestos claim form and to fully cross-examine Mrs. Chadwell regarding the claim form in order to attack her credibility. Relying on section 90.403, the trial court limited the questions Philip Morris could ask Mrs. Chadwell but nonetheless allowed Philip Morris to attack Mrs. Chadwell's credibility by asking her about the claim for money damages she made in "another court proceeding," and the discrepancy between that claim and this one regarding the number of packs a day Mr. Chadwell smoked. In limiting cross-examination and by not permitting Philip Morris to admit the claim form, the trial court noted that Philip Morris did not intend to argue that asbestos was an alternative cause of Mr. Chadwell's lung cancer, although the claim form suggested such. In ruling as it did, the trial court determined that the probative value of the evidence was substantially outweighed by the danger of confusing the jury as to an issue. Neither party was arguing that asbestos was an alternative cause of Mr. Chadwell's lung cancer, and the trial court permitted Philip Morris to attack Mrs. Chadwell's credibility with the above questions. We conclude that reasonable persons could differ as to the propriety of the actions taken by the trial court, and therefore, the trial court did not abuse its discretion by not permitting Philip Morris to introduce the claim form and to cross-examine Mrs. Chadwell as to the "asbestos-related" statement in the claim form. B. Whether the trial court erred by denying Philip Morris’ motion for a directed verdict as to the Plaintiff's fraud claims.
An appellate court reviews the "denial of a motion for directed verdict de novo, viewing ‘all of the evidence presented and all available inferences from that evidence in the light most favorable’ to the non-moving party." Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 952 (Fla. 3d DCA 2017) (quoting R.J. Reynolds Tobacco Co. v. Ballard, 163 So. 3d 541, 545 (Fla. 3d DCA 2015) (emphasis added). A trial court may grant a motion for directed verdict "only if there is no evidence or reasonable inferences to support the opposing position." Stirling v. Sapp, 229 So. 2d 850, 852 (Fla. 1969) ; see also Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 173 So. 2d 492, 494 (Fla. 3d DCA 1965) (holding a "trial court may direct a verdict upon a mixed question of law and fact whenever the facts, as presented to the jury, upon their most favorable interpretation to the party moved against are susceptible of only one reasonable conclusion"); Yanks v. Barnett, 563 So. 2d 776, 777 (Fla. 3d DCA 1990).
Mrs. Chadwell alleged, in part, counts for civil conspiracy to fraudulently conceal, and fraudulent concealment. The elements of a claim for fraudulent concealment in an Engle-progeny case, however, do not include reliance on a particular statement. See Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 691 (Fla. 2015) (stating that the elements of a claim for fraudulent concealment in an Engle-progeny case are: "(1) the tobacco companies concealed or failed to disclose a material fact; (2) the companies knew or should have known the material fact should be disclosed; (3) the companies knew their concealment of or failure to disclose the material fact would induce the plaintiffs to act; (4) the tobacco companies had a duty to disclose the material fact; and (5) the plaintiffs detrimentally relied on the misinformation) (quoting with approval Philip Morris USA, Inc. v. Hess, 95 So. 3d 254 (Fla. 4th DCA 2012) ); see also Johnson v. Davis, 480 So. 2d 625 (Fla. 1985).
Philip Morris argues that the Plaintiff was required to establish that Mr. Chadwell made an affirmative statement that he detrimentally relied on statements, advertisements, or representations made by Philip Morris and/or any other Engle defendant. Philip Morris added that Mr. Chadwell could not have been affected by the tobacco company's concealment or false advertising because there were warnings on the cigarette packages. The evidence showed that Mr. Chadwell did not state that he smoked Philip Morris’ cigarettes as a result of any of Philip Morris’ advertisements; he did not mention seeing, reading, or hearing Philip Morris statements; he never stated that cigarette companies withheld information from him; he did not mention or discuss cigarette advertisements. The record shows that Mr. Chadwell did collect Marlboro memorabilia and merchandise, and only smoked Marlboro cigarettes. Testimony was presented that Mr. Chadwell believed filtered and "light" cigarettes, were safer, and switched to them because of that.
Proof of fact by inference is a recognized standard the trial court must apply when deciding whether to grant or deny a directed verdict. "An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Banco Espirito Santo Int'l, Ltd. v. BDO Int'l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001) (citation omitted) (emphasis added). With that in mind, the element of reliance can be inferred from the now well-known pervasive and misleading advertising campaigns pursued by tobacco companies over the years. See Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1108 (11th Cir. 2018) (recognizing the unique circumstances underlying Engle-progeny fraudulent concealment claims, and noting that Florida courts have consistently held that Engle-progeny plaintiffs are not required to show reliance on a specific statement); Philip Morris USA Inc. v. McCall, 234 So. 3d 4, 14 (Fla. 4th DCA 2017) (explaining that in an Engle case, a fraudulent concealment claim need not be limited to reliance on a statement); Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426, 439 (Fla. 2d DCA 2017) (holding that an Engle-progeny plaintiff was not required to prove detrimental reliance on a statement); R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069–70 (Fla. 1st DCA 2010) (finding "abundant evidence from which the jury could infer ... reliance on pervasive misleading advertising campaigns ... and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health"). Florida law permits an Engle-progeny jury to infer reliance based on evidence that the plaintiff was exposed to the disinformation campaign and harbored a misapprehension about the health effects and/or addictive nature of smoking. See Duignan, 243 So. 3d at 442 (citing Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 353 (Fla. 2d DCA 2013) ; Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139, 1141 (Fla. 2d DCA 2015) ; Martin, 53 So. 3d at 1069–70. If the plaintiff makes this showing, the burden of proof shifts and requires the defendant to "show otherwise." Duignan, 243 So. 3d at 442 (citing Evers, 195 So. 3d at 1141 ). We hold that the trial court did not err by denying Philip Morris's motion for directed verdict on the issue of fraudulent concealment and reliance, but correctly sent the issue to the jury.
Engle findings conclusively established that the tobacco companies agreed to conceal, omit, and misinterpret information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment. See Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1257 n.4 (Fla. 2006).
C. Whether the trial court erred when instructing the jury on the requirement of reliance on any statement by Philip Morris that concealed or omitted material information about the dangers of smoking.
Our standard of review of a trial court's decision to give or withhold certain jury instructions is abuse of discretion. Beltran v. Rodriguez, 36 So. 3d 725, 728 (Fla. 3d DCA 2010).
Philip Morris argues that the jury instructions on fraud and reliance were improper because they did not require proof of individual reliance on "a statement that omitted or concealed information," but instead allowed the Plaintiff to prevail based on a showing of reliance on "omission." Philip Morris contends that the Plaintiff failed to satisfy the detrimental reliance requirement because she did not show that Mr. Chadwell relied to his detriment on any false or misleading statements made by Phillip Morris in furtherance of the conspiracy to conceal or omit information concerning the health risks or addicting nature of smoking. The jury was instructed as follows,
On Plaintiff's claim for fraudulent concealment against Philip Morris, the issues
for your determination are whether James Chadwell reasonably relied to his detriment on any misinformation, omission, or statement made by Philip Morris that concealed or omitted material facts not otherwise known or available to [him] regarding the health effects of cigarettes or their addictiveness and, if so, whether such reliance was a legal cause of his lung cancer and death.
(emphasis added). And,
This means that the plaintiff must prove that but for James Chadwell's reasonable reliance on misinformation, omission, or a statement by Philip Morris concealing or omitting material facts ... he would have acted differently and, as a result, would have avoided his alleged lung cancer and death.
(emphasis added). We conclude that the special jury instructions on fraud and reliance that were provided to Mr. Chadwell's jury sufficiently instructed the jury on the need to prove reliance on not merely omissions, but on statements and misinformation as well.
In challenging the jury instruction on reliance, Philip Morris relies heavily on the Whitmire case out of the First District Court of Appeal. R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018). The holding in Whitmire diverges from Florida cases that have consistently held that Engle-progeny plaintiffs are not required to show reliance on a specific statement. The Whitmire majority acknowledged that the Engle findings generally establish that tobacco companies made "misleading statements and concealed material information." Whitmire, 260 So. 3d at 540. The Whitmire majority, however, rejected the established principle of permitting an Engle-progeny jury to infer reliance, holding instead that the circumstantial evidence necessary to prove an inference "must establish individualized reliance by the plaintiff, and this cannot be shown through mere presentation of general evidence of the plaintiff's life and behavior, where, as here, that evidence gives no indication that the plaintiff relied on any false information disseminated by the tobacco companies." Id. at 540-41. Instead, Whitmire holds that in order to support a claim for fraudulent concealment, an Engle plaintiff must "prove that they individually relied to their detriment on false statements from the tobacco companies." Id. at 539 ; see also R.J. Reynolds Tobacco Co. v. Prentice, 290 So. 3d 963 (Fla. 1st DCA 2019) (following the holding in Whitmire ). Here, the record contains sufficient evidence from which the jury could infer Mr. Chadwell's reliance on statements, advertisements, or omissions via the tobacco companies’ pervasive misleading advertising campaigns. We reject the Whitmire holding to the extent it appears to require an Engle-progeny plaintiff to show that a smoker explicitly relied to his detriment on specific "false or misleading statements," as opposed to a smoker's misapprehension concerning a material fact the conspirators concealed from the smoker in furtherance of their agreement to conceal or omit information regarding the health effect or addictive nature of cigarettes, as previously allowed by many Florida courts when the circumstances of a given case so warranted. See R.J. Reynolds Tobacco Co. v. Burgess, 294 So.3d 910 (Fla. 4th DCA Feb. 26, 2020) (holding the trial court did not abuse its discretion in refusing to give the tobacco company's requested instructions on the concealment and conspiracy claims because the trial court's instructions adequately apprised the jury of the element of reliance) (certifying conflict with R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018) and R.J. Reynolds Tobacco Co. v. Prentice, 290 So. 3d 963 (Fla. 1st DCA 2019) ); Duignan, 243 So. 3d at 440-41 (stating that "[o]f course, there can be concealment or omission with no statement at all," and "when the facts involve concealment or omission, an instruction requiring detrimental reliance on a misapprehension as to the fact concealed or omitted will usually accurately inform the jury of what it must find with respect to the element of detrimental reliance essential to that claim") (emphasis added); see also Cote, 909 F.3d at 1107 (noting that given the Engle jury's findings about fraudulent conduct, "the only questions remaining were whether [the smoker] had relied to her detriment on the material information that Philip Morris and other defendants had concealed about the health effects and/or addictive nature of smoking and, if so, whether her reliance was a legal cause of her COPD"); cf. Philip Morris USA Inc. v. McCall, 234 So. 3d 4, 14 (Fla. 4th DCA 2017) (explaining that in Engle cases, a fraudulent concealment claim need not be limited to reliance on a statement, but noting that because plaintiff in that case testified about specific advertisements deceased smoker relied upon in forming his belief that smoking filtered cigarettes was safe, the jury instruction regarding reliance on "statements" was not improper).
Compare Whitmire to the cases cited in the previous section finding Florida courts have consistently held that Engle-progeny plaintiffs are not required to show reliance on a specific statement. See also Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 353 (Fla. 2d DCA 2013) (holding that record contained "abundant, adequate evidence" of misleading advertising campaigns and false controversy perpetrated by tobacco industry, from which reliance element could be inferred, as well as evidence of deceased smoker's direct reliance on that misleading advertising); Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139, 1140 (Fla. 2d DCA 2015) ("We conclude the trial court erred in directing a verdict in favor of the tobacco companies where there was circumstantial evidence from which the jury could have concluded that [the smoker] relied on the tobacco companies’ misleading advertising campaigns."); Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 470 (Fla. 4th DCA 2016) (holding that record contained sufficient evidence that deceased smoker relied "on pervasive, misleading advertising campaigns for cigarettes in general," as well as "on the false controversy created by the tobacco industry during the years she smoked"), disapproved of on other grounds by Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018).
The special jury instructions provide that, if the jury decides Mr. Chadwell is an Engle class member, then they must be bound by certain Engle findings.
We hold that the trial court did not abuse its discretion when instructing the jury on the elements of reliance. The trial court's jury instructions adequately apprised the jury of the elements of reliance, were not improper, and did not mislead the jury. As in Burgess, because the First District has found substantially similar evidence of detrimental reliance to be insufficient as a matter of law, we certify conflict with R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018) and R.J. Reynolds Tobacco Co. v. Prentice, 290 So. 3d 963 (Fla. 1st DCA 2019). See Burgess, 294 So.3d 910.
We find the remaining issues to be without merit.
Affirmed; conflict certified.