PHILIP MORRIS USA INC. v. BERNICE MCCALL
16-2016
Fla. Dist. Ct. App.Dec 13, 2017Background
- Decedent began smoking in the 1950s, smoked filtered cigarettes for decades, was diagnosed with lung cancer in 1992, and died later that year; Plaintiff (his wife) sued Philip Morris USA (PM) in 2007 alleging Engle-progeny claims including negligence (survival/wrongful death), fraud by concealment, conspiracy to conceal, and an individual loss of consortium claim.
- Trial Phase I asked whether Decedent was an Engle class member (addicted to nicotine) and whether PM’s cigarettes were a legal cause of his lung cancer; jury found addiction and causation for cancer but found cancer was not a legal cause of death, so wrongful death damages were not awarded.
- Jury awarded survival damages ($175,000) and $175,000 for Plaintiff’s loss of consortium, but found for PM on the fraud/conspiracy claims (no detrimental reliance).
- PM moved for directed verdict at close of Plaintiff’s case arguing Plaintiff’s individual loss of consortium was time barred; the trial court denied the motion, and PM appealed.
- Plaintiff cross-appealed jury instructions: (1) the fraudulent-concealment/conspiracy reliance instruction required reliance on a "statement" rather than an act/omission, and (2) the court gave an instruction regarding the legal effect of federally mandated cigarette warning labels which Plaintiff argued was confusing and improper for her theories of fraud/omission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff’s individual loss of consortium claim was tolled by the Engle class or otherwise timely | Plaintiff: As a survivor of an Engle class member, she is an Engle class member entitled to tolling; alternatively loss of consortium was intertwined with Decedent’s timely survival claim | PM: Loss of consortium is a separate, individual cause of action with its own statute of limitations and not tolled by Engle membership | Held: Loss of consortium is a separate, free‑standing claim owned by the spouse, not an Engle class member right, and was time barred (filed ~15 years after accrual); trial court erred in denying directed verdict on that claim. |
| Whether the fraudulent concealment and conspiracy jury instructions improperly required reliance on a "statement" (excluding reliance on omissions) | Plaintiff: Instruction was too narrow; fraudulent concealment can be based on omissions/acts and jury should be able to find reliance on omissions | PM: Reliance on a statement is appropriate; omissions alone require special relationship/fiduciary duty | Held: Although reliance need not be limited to a "statement" as a matter of law, the instruction was proper here because evidence showed Decedent relied on specific advertising statements. |
| Whether the warning‑label jury instruction (stating federal warnings precluded claims that advertising neutralized warnings after July 1, 1969) was proper | Plaintiff: Instruction was inapplicable (no failure‑to‑warn claim) and misleading—could cause jurors to think PM had no liability for advertising contrary to warnings | PM: Instruction accurately stated federal law and was necessary to prevent liability based on an impermissible theory (failing to add or change warnings) | Held: Instruction was improper and confusing; federal labeling does not preempt fraud/advertising‑based claims and the instruction likely misled the jury. Trial reversible on this basis. |
| Whether Engle common‑core findings application or PM’s due process arguments required reversal | PM: Repeated due process challenge to application of Engle common‑core findings | Plaintiff: (not primary issue on cross‑appeal) | Held: Court rejected PM’s due process arguments consistent with existing precedent and did not reverse on that ground. |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (original class action and Phase I common‑core findings)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (U.S. 1992) (federal labeling preemption: advertising‑based fraud distinct from warning‑neutralization claims)
- Altria Group, Inc. v. Good, 555 U.S. 70 (U.S. 2008) (clarified Cipollone; deceptive advertising claims not preempted merely because warnings exist)
- R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590 (Fla. 2017) (Engle‑type negligence and strict liability claims not preempted by federal Labeling Act)
- Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016) (punitive damages as remedy tied to properly pled causes of action; relation to Engle tolling issues)
- Calloway v. R.J. Reynolds Tobacco Co., 201 So. 3d 753 (Fla. 4th DCA 2016) (fraudulent concealment instruction must address detrimental reliance; instruction tailoring depends on trial evidence)
- Gates v. Foley, 247 So. 2d 40 (Fla. 1971) (loss of consortium defined and treated as a separate cause of action)
- Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209 (Fla. 4th DCA 2017) (surviving spouse is not an Engle class member in her individual capacity; class membership focuses on the smoker)
Outcome: Trial court reversed and remanded for a new trial. On remand the trial court should enter judgment for PM on Plaintiff’s individual loss of consortium claim (time barred).