294 So.3d 910
Fla. Dist. Ct. App.2020Background
- Johnny Burgess began smoking at 14, later switched to Winston filtered cigarettes because he believed the filter made them safer; he once cut open a used filter and showed brown residue to his wife.
- Burgess watched television programs (e.g., The Flintstones) on which RJR advertised; he had limited education and could not read. He repeatedly tried to quit, succeeded in 1982, but was diagnosed with lung cancer in 1993 and died that year.
- Plaintiff (Burgess’s personal representative) brought an Engle-progeny suit alleging fraudulent concealment and civil conspiracy by R.J. Reynolds to hide the health risks and addictive nature of cigarettes.
- At trial the jury found RJR liable on the concealment and conspiracy claims, assigned 20% fault to Burgess, awarded $3,000,000 in compensatory damages, and declined to award punitive damages.
- RJR moved for directed verdict and, after verdict, renewed for directed verdict or new trial arguing (1) plaintiff failed to prove individualized detrimental reliance and (2) the court should have instructed the jury that reliance must be on a statement by RJR or a co-conspirator; the trial court denied relief.
- The Fourth District affirmed, holding circumstantial evidence (industry-wide deceptive advertising/false controversy plus Burgess’s belief in filters) permitted an inference of individualized reliance; the court certified conflict with the First DCA’s Whitmire decision.
Issues
| Issue | Burgess's Argument | Reynolds's Argument | Held |
|---|---|---|---|
| Whether plaintiff adduced sufficient individualized evidence of detrimental reliance to submit concealment and conspiracy claims to the jury | Reliance can be inferred from (a) Burgess’s smoking history and belief that filters were safer and (b) pervasive, deceptive industry advertising and the false controversy the industry created | Plaintiff failed to present individualized proof that Burgess relied on RJR or co-conspirators; circumstantial evidence was insufficient | Affirmed: jury could infer individualized reliance from pervasive industry deception plus Burgess’s beliefs/actions (including his filter belief); directed verdict not warranted |
| Whether the jury should have been instructed that reliance must be on a statement made by RJR or a co-conspirator | The existing instructions adequately informed the jury of the reliance element; reliance need not be limited to a specific “statement” | A special instruction was required that the smoker relied on a statement by RJR or a co-conspirator | Affirmed: trial court did not abuse discretion; instructions sufficiently apprised jury of reliance without requiring “a statement” language |
| Whether this panel should follow First DCA precedent requiring more individualized proof (Whitmire) | General Engle-progeny precedent allows inference of reliance from pervasive advertising and false controversy; facts here suffice | Whitmire requires individualized proof and rejects reliance by general life-history evidence alone | Fourth DCA certified conflict with Whitmire and Prentice; affirmed judgment despite the tension |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (decertified class and left individual issues like reliance, causation, and damages to subsequent trials)
- Hess v. Philip Morris USA, Inc., 175 So. 3d 687 (Fla. 2015) (Engle-progeny plaintiffs must prove detrimental reliance for fraudulent concealment claims)
- R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010) (permitting inference of reliance from pervasive advertising and industry-created false controversy)
- R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018) (held that circumstantial evidence must establish individualized reliance; decision in tension with Martin)
- Philip Morris USA Inc. v. Putney, 199 So. 3d 465 (Fla. 4th DCA 2016) (reliance may be inferred from pervasive, misleading advertising and the false controversy)
- Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426 (Fla. 2d DCA 2017) (discussed appropriate jury instructions for reliance and cautioned against instructions that permit finding reliance without a showing the concealed information mattered to the smoker’s decisions)
- Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094 (11th Cir. 2018) (recognized Florida decisions allowing Engle-progeny plaintiffs to avoid proof of reliance on a specific statement)
- R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016) (jury instructions must be tailored to case facts to properly convey the reliance element)
- Philip Morris USA Inc. v. McCall, 234 So. 3d 4 (Fla. 4th DCA 2017) (confirmed that an instruction need not reference reliance on "a statement" unless facts warrant it)