ORDER
This is an “Engle-progeny”
Pending is PMUSA’s Renewed Motion for Judgment as a Matter of Law on Plaintiffs Fraudulent Concealment' and Conspiracy Claims or, in the Alternative, Motion for New Trial and Incorporated Memorandum of Law (Doc. 136), to which Mrs. Berger responded (Doc. 147) and PMUSA replied. (Doc.149). PMUSA additionally filed supplemental authority in support of its motion (Doc. 153), and also requested leave to submit supplemental briefing. (Doc. 154).
For the reasons that follow, I grant PMUSA’s motion (Doc. 136) and enter judgment as a matter of law in favor of PMUSA and against Mrs. Berger as to Mrs. Berger’s fraudulent concealment and conspiracy to fraudulently conceal claims.
I. Background
Mrs. Berger began smoking in the late 1950s around age thirteen or fourteen. She started because school friends encouraged her to do so, and she “didn’t want to be the only one not to do it.”
Q. And, in fact, you blame Anita Russo, somewhat, for your decision to start smoking; correct?
A. I blame her for teaching me. I was quite happy just puffing it out.
Q. Okay. You blame her for teaching you how to inhale?
A. Inhale, right.
Q. And Mrs. Berger, if Anita Russo hadn’t taught you how to inhale that smoke, you believe that you would have ended up like your sister Ann, hating smoking; right?
A. I think so.
Mrs. Berger was smoking daily by age sixteen, and by the time she turned twenty, she was smoking a pack and a half per day.
Though Mrs. Berger tried to stop a couple of times during her lifetime, she was unsuccessful until her twin sister became fatally ill from congestive obstructive pulmonary disease (COPD). Nursing her sister, from whom Mrs. Berger had only been separated for any period of time during her honeymoon, while her sister suffered the agonies of dying from the condition brought an end to Mrs. Berger’s smoking in 1988. By then, Mrs. Berger had smoked cigarettes for just short of forty years, having smoked Marlboros and Parliaments for twenty-five of those years.
By the '90s, however, Mrs. Berger experienced the symptoms of COPD. Her condition has taken the predictable course. At trial, she was wheelchair bound and tethered to an oxygen tank. Her life expectancy was estimated at trial to be three to five years.
At issue now is the sufficiency of the evidence to sustain Mrs. Berger’s fraudulent concealment and conspiracy to fraudulently conceal claims; specifically, whether sufficient evidence exists as to Mrs. Berger’s detrimental reliance on the fraudulent conduct in which PMUSA and its tobacco company cohorts jointly engaged for decades before finally acknowledging that nicotine is addictive and that smoking causes various diseases, including COPD.
In summary, the evidence at trial persuasively showed that that fraudulent conduct involved, inter alia:
• Concealing from both the public and scientific community the knowledge that PMUSA and its co-conspirator tobacco companies had that:
• Nicotine was addictive;
• Cigarettes containing nicotine caused fatal disease, including lung diseases;
• Filter tip cigarettes were more addictive and more hazardous than non-filter tip cigarettes;
• On publication of the Surgeon General’s Report of 1964 and for an extended period of time thereafter, deliberately and knowingly making materially false statements (and doing so jointly and collusively with the other tobacco companies) intended to encourage people to smoke, and to continue smoking, and expecting and intending that those false statements would allay fears and increase cigarette consumption, and thus tobacco company profits, that:
• Debunked, discredited, denied, downplayed, and cast doubt on the accuracy and integrity of the authors of and underlying research supporting theSurgeon General’s Report and subsequent Reports and warnings about the health hazards of smoking, and, in general, seeking to defame, undercut, and marginalize the work of the Surgeon General and other organizations, such as the American Cancer Society, that sought to increase public awareness about the deleterious and deadly consequences of smoking;
• Presented, along with its tobacco company co-conspirators, perjurious testimony to Congress;
• The scientific evidence as to whether nicotine was addictive was inconclusive;
• Experts disagreed as to the addictive properties of nicotine;
• The scientific evidence as to the health hazards of smoking were inconclusive;
• Experts disagreed as to the health hazards of smoking;
• Engaging in a protracted public campaign that included, inter alia, saturation advertising and broadcast interviews with tobacco company spokesmen/apologists intended to communicate and appear to confirm the truthfulness of the above-noted materially false, deceptive, and misleading statements;
• Deliberately using false and deceptive multi-media saturation advertising to cause smokers concerned about the risks of smoking to switch to filter tip cigarettes and ‘light’ products because they were less harmful to health than traditional cigarettes; doing so knowing that such “more healthful” products were, in fact, more addictive and dangerous than unfiltered cigarettes.
In light of the foregoing, there was ample evidence that the tobacco companies engaged in a massive, multi-faceted, protracted, and effective disinformation campaign. Mrs. Berger’s counsel aptly demonstrated the effect of that campaign in his closing argument, to wit: “[W]hat we’ve got here and what Philip Morris and this industry is doing is worse because there’s the truck driver, foot on the gas, about to go, looks out the window at the guy about to cross the street and goes, come on, come on; that’s the conduct we have.”
Proof of the foregoing fraudulent conduct and its likely impact on the tobacco companies’ targets, as extensive as it was, is not, however, enough, standing alone, to uphold the jury’s finding in this or any other Nm/Ze-progeny case. Mrs. Berger had to prove that she relied on what the tobacco companies were saying and doing, by both affirmation and concealment, as she began and/or continued to smoke.
Mrs. Berger’s testimony clearly indicates that she was not insulated from or oblivious to the tobacco companies’ disinformation. Her testimony shows that she was cognizant of representations made and messages broadcast by PMUSA and other tobacco companies. For example:
• She answered “[y]es” when asked whether she remembered cigarette advertising, and testified to seeing billboards, advertisements in trains, on buses, and on TV as a youth and/or in high school;
• She remembered the Marlboro Man as “a good looking guy on a horse smoking,” portraying the image “[t]hat [smoking] wasn’t bad ... it was okay”;
• She recalled famous people smoking, including “[m]ostly all” movie stars;
• When asked whether she knew the health hazards of cigarette smoking at age 16 in 1960, she replied: “[n]o. They were smoking in the movies, restaurants. No.” It was, as she recalled: “like nothing ... like having a hamburger or — I don’t know how to explain it. We took it for granted. It was nothing.”;
• When asked about what she thought of warnings placed on cigarette packages in 1966, she answered “I thought they weren’t sure at the time ... they were speculating.” She recalled many of her Mends sharing the same impression with her, further noting: “At that date and time, I don’t think anybody [took the warnings seriously] ... [t]hey were working on it, but it wasn’t a sure thing yet.”;
• When asked if she knew smoking cigarettes was hazardous to her health in 1966, she responded: “[not] with 100 percent, no.”;
• She also confirmed previous testimony that “[she] kind of figured [smoking was hazardous to her health] ... kind of knew,” adding: “I wanted to believe what the Surgeon General would say, but I didn’t take it seriously enough. I knew a lot of people that smoked and they were in their 90s.”
Like many other smokers whom the disinformation campaign targeted, Mrs. Berger decided to switch, at her sister’s suggestion, from unfiltered Marlboros to a filtered brand, Parliament Lights (another PMUSA product).. When asked why she did so, Mrs. Berger testified that she thought the filtered cigarette tasted better. She also enjoyed the recessed filter feature, which she recalled seeing advertised.
Mrs. Berger further explained that she switched to filtered cigarettes to keep loose pieces of tobacco out of her mouth. She did not like the taste of tobacco and having to spit out pieces. She also testified that she preferred the feel of the filter tip cigarette in her mouth. She had found smoking unfiltered cigarettes to be “kind of unpleasant.”
When asked whether any other reason existed behind her switching to filtered cigarettes, she answered: “No reason ... just didn’t like the unfiltered ones.”
Mrs. Berger was also asked what caused her to prefer the “light” brand. Her answers to that line of questions are crucial:
Q. You told us on direct examination today in your testimony that there was some point you switched to light cigarettes; is that correct?
A. Right.
Q. And the reason you switched to light cigarettes is because you liked the taste of those cigarettes better; correct?
A. They weren’t as harsh.
Q. They weren’t as strong or harsh; correct?
A. Right, correct.
Q. And there’s no other reason that you chose to smoke a light cigarette; correct?
A. Just that reason.
Q. You did not choose to smoke a light cigarette because you thought they were better for your health; correct?
A. Correct.
Q. And you didn’t choose to smoke the Parliament cigarettes because you thought they were better for your health; correct?
A. Correct. No, to me they were all the same.
Mrs. Berger acknowledged that she had enjoyed the taste of cigarettes, enjoyed smoking with a cup of coffee, and enjoyed the social aspect of smoking. During the occasional periods when she tried to quit, she would feel outcast because all her Mends smoked. When asked whether she thought cigarettes helped her relax, she responded “I guess I did.”
Mrs. Berger gave no testimony that suggested that the false and fraudulent disinformation campaign, as manifest in the saturation advertising, influenced her deci
Q. And the fact is, Mrs. Berger, that you never bought or chose a particular brand of cigarette because of an advertisement; right?
A. No.
Q. Am I correct?
A. You’re correct.
She testified that the only influence from advertising on her decision to switch to Parliament Lights was the assertion that they were less harsh.
With regard to the disinformation, as reported in the media, Mrs. Berger testified that she never saw or heard a tobacco representative discuss or dispute the health risks of smoking in the 1950s, '60s, '70s, '80s or '90s. She testified to having been unfamiliar with the industry’s false efforts to put a respectable front on its disinformation campaign via such false flag entities as the Tobacco Industry Research Committee, the Council for Tobacco Research, and the Tobacco Institute. She acknowledged that she never directly communicated with a tobacco representative. Nor had she ever read- anything in the newspapers reporting cigarette smoking was not hazardous to health.
The only concerns about the health risks of smoking she recalled were her mother’s mention that she had read in a newspaper that the Surgeon General intended to place warnings on cigarette packages. Mrs. Berger’s response to those warnings at the time, as already noted, was that she thought they were speculative.
When Mrs. Berger completed her case, PMUSA timely moved under Fed.R.Civ.P. 50(a) for judgment as a matter of law as to Mrs. Berger’s fraud and conspiracy claims. (Doc 86). I denied the motion, without prejudice to PMUSA’s right to renew. (Doc. 130). The jury subsequently returned the verdict noted above and I entered judgment accordingly. (Doc. 131). Thereafter PMUSA timely renewed its motion, which I now grant.
II. Standard
The standard for granting a renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) is the same as the Standard for granting the pre-sub-mission motion under Rule 50(a). Chaney v. City of Orlando, Fla.,
While I review all evidence of record, I am to draw all reasonable'inferences in favor of the nonmoving party. I “must disregard all evidence favorable to the moving party that the jury is not required to believe ... [giving] credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unim-peached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Products, Inc.,
Moreover, I may not make credibility determinations or weigh the evi
III. Discussion
A. Standard for Determining the Adequacy of the Evidence as to Plaintiffs Reliance on Defendant’s Fraudulent Conduct
The dispositive issue before me is whether Mrs. Berger produced sufficient evidence to sustain the jury’s finding that she relied on the tobacco companies’ conspiratorially engendered fraudulent misrepresentations and misleading failure to disclose known and material facts about the addictive nature and health hazards of smoking.
Florida law is clear that an Engle-progeny claimant must establish detrimental reliance to prevail on fraudulent concealment and conspiracy to fraudulently conceal claims. E.g., Hess v. Philip Morris USA, Inc.,
In support of her contention that her proof sufficed, Mrs. Berger relies on the First District Court of Appeal’s 2010 decision, R.J. Reynolds Tobacco Co. v. Martin,
Other Districts have incorporated the reasoning in Martin into subsequent decisions. In Philip Morris USA, Inc. v. Hallgren,
Unfortunately for Mrs. Berger, the decision in Martin does not control my review under Fed.R.Civ.P. 50(b). This is so because, even when sitting in diversity, I am to apply the federal sufficiency of evidence standard. As the predecessor Fifth Circuit stated in King v. Ford Motor Co., “[i]n diversity cases in this circuit, a district court applies the federal, rather than the state, standard for determining whether a party’s evidence is sufficient.”
Furthermore, even if Martin applied as Mrs. Berger contends,
This principle of individualized adjudication is the foundation on which Engle-progeny trials stand. It is a structure the Douglas court recognized to be not only the most accurate expression of Engle III, but also as one that provided necessary procedural safeguards against the arbitrary deprivation of property — namely, the Engle defendants’ ability to defend the remaining elements of each progeny-plaintiffs prima facie case. See Douglas, supra,
In light of Engle III and Douglas, it appears likely that, if given the opportunity, the Florida Supreme Court would elect not to follow Martin to the extent proposed by Mrs. Berger. Though the crystal ball is always cloudy when a federal court seeks to discern the future course that state jurisprudence will take through a dimly charted realm, I am persuaded that that Court would opt for requiring some proof of individualized reliance on the tobacco companies’ fraudulent misconduct. Cf. Baker v. R.J. Reynolds
In any event, I conclude that Martin does not properly state the appropriate standard as to the proof of Mrs. Berger’s alleged detrimental reliance.
The evidence at trial amply confirmed the tobacco companies’ decades-long fraudulent conduct — fraudulent conduct in which PMUSA was actively and deeply complicit. But that evidence alone, without an additional link to Mrs. Berger’s individual detrimental reliance, is not enough to sustain her fraud and conspiracy claims. The jury cannot sanction PMUSA simply because of the wrongfulness of its conduct, no matter how frightfully inhumane, vile, and unconscionable — Mrs. Berger must prove that she has cause to recover because PMUSA’s conduct helped lure her to begin and/or continue smoking despite the jeopardy into which she placed herself.
B. The Plaintiffs Evidence Failed to Establish Detrimental Reliance on the Fraudulent Conduct
While the evidence of PMUSA’s fraudulent misconduct was extensive, evidence as to whether that fraudulent conduct had any impact on Mrs. Berger was not.
Dr. Grunberg’s more generic testimony covered a broad range of topics. He testified about tobacco companies’ decades-long withholding of scientifically valid evidence regarding nicotine addiction and cigarette structure, the potentially positive impact that evidence would have had if the companies had shared their knowledge with scientists, the government, and the public, as well as the consequent delay in development of remedies for nicotine addiction.
Moreover, Dr. Grunberg testified about the social and psychological reasons individuals begin smoking, typically before and sometimes well before they are twenty years old, as well as the blend of biological and psychological reasons that cause individuals to continue to smoke, the effect PMUSA and other companies’ actions had on people similar to Mrs. Berger, and the addiction treatments available during Mrs. Berger’s lifetime, including those treatments that would have been available but for the withheld research.
With regard to the second category of Dr. Grunberg’s testimony, much of which I admitted under Fed.R.Evid. 703 solely for evaluating the reliability of his principal conclusion, Dr. Grunberg testified that Mrs. Berger was heavily biologically addicted to nicotine and described how nicotine inhibited and impaired Mrs. Berger’s “free choice” and ability to control her craving for nicotine. Dr. Grunberg based his opinions, in part, on Mrs. Berger having attributed her decision to smoke to peer pressure and the easy availability of cigarettes. He further noted Mrs. Berger’s testimony about enjoying the taste of a cigarette, the relaxing effect smoking cigarettes had on -her, and the pleasure of having cigarettes while drinking at a bar and when drinking coffee.
Dr. Grunberg also based his testimony, in part, on Mrs. Berger’s assertions that she never chose a cigarette brand based on an advertisement, had neither seen a cigarette advertisement before she started smoking nor paid any attention thereafter to cigarette advertising, and that she opted for filter tip cigarettes because she did not like tobacco getting in her mouth. He also acknowledged that she had not chosen to smoke light cigarettes due to any concerns about the effect of smoking on her health; rather, she preferred their flavor and taste. He further recognized that from the 1950s through the 1990s she had never read, seen, or heard anything about the industry’s faux “research” entities or company representatives disputing or seeking to negate concerhs about smoking-related or caused health risks. The same was true with regard, to the companies’ “Frank Statement” to cigarette smokers. He additionally noted Mrs. Berger’s statement that she had -not taken warning labels on cigarettes seriously.
Because most of Dr. Grunberg’s ‘specific’ testimony on this matter is not admissible without limitation and thus cannot properly give rise to inferences of reliance, Mrs. Berger’s claim of reliance rises or falls on her own testimony. While the evidence of record, especially the evidence regarding the saturation of cigarette advertising, may raise an inference that Mrs. Berger was cognizant of and subliminally affected by the companies’ massive disin
I have undertaken above to comprehensively recount Mrs. Berger’s testimony with regard to why she began smoking (and inhaling) and how and why, according to her, she continued to smoke until finally stopping upon her sister’s death. The only indication that the companies’ pervasive efforts to allay the fears the Surgeon General had engendered came in her response to what she thought of the warnings on cigarette packages beginning in 1966. In response, she stated, “I thought they weren’t sure at the time ... they were speculating.” Many of her friends shared the same impression with her. “At that date and time, I don’t think anybody [took the warnings seriously],” she testified, further noting that “[t]hey were working on it, but it wasn’t a sure thing yet.”
Moreover, when directly asked whether she knew smoking cigarettes was hazardous to her health in 1966, she responded: “[not] with 100 percent, no.” Mrs. Berger also confirmed previous testimony that “[she] kind of figured [smoking was hazardous to her health] ... kind of knew,” adding further: “I wanted to believe what the Surgeon General would say, but I didn’t take it seriously enough. I knew a lot of people that smoked and they were in their 90s.”
While Mrs. Berger’s recollections show that she, like most people in that era, was aware of the disinformation tobacco companies were pervasively and successfully spreading, awareness of the fraudulently made statements is not enough. There must be a link, a nexus between awareness of the lies and acting on those lies. The evidence in this case did not create that link, much less do so with sufficient strength to overcome Mrs. Berger’s own testimony directly disclaiming any such link.
Advertising did not influence her decision to smoke and then inhale: peer pressure did.
After the Surgeon General’s 1964 report and cigarette package labeling in 1966, at which point the disinformation campaign went into high gear, Mrs. Berger chose Parliament — which PMUSA’s advertising suggested was not harmful, or at least not as much so, as unfiltered cigarettes — but not in response to those falsehoods. She was completely unaware of the work and proclamations of the faux “research” entities and their affiliated spokespersons. Mrs. Berger instead chose that brand on its actual, rather than illusory qualities — the less harsh taste and to avoid getting bits of tobacco in her mouth. "When asked whether any other reason existed behind her switching to filtered cigarettes, she answered: “[n]o reason ... just didn’t like the unfiltered ones.” Concerns about health played no role in her decision to change brands. The advertising that surrounded everyone at that time had no effect on' her decision to change from unfiltered to filtered cigarettes — personal preference, not the fraudulent conduct, motived her decision.
In the absence of a Florida case defining “reliance” in this context,
Here, there is but little evidence that Mrs. Berger was aware of the false disinformation and even less evidence that she acted or refrained from action due to it. To be sure, Mrs. Berger thought that the question of smoking’s addictive effects and risks-to health was uncertain and the basis for the Surgeon General’s warnings, which she admitted ignoring, was speculative. This testimony fairly gives rise to an inference that the disinformation affected her smoking-related decisions.
Those inferences are, however, insufficient to support the verdict in light of Mrs. Berger’s own explicit testimony. Though she was aware of the Surgeon General’s warnings and was under the .impression that the science relating to health risks appeared in dispute and uncertain, her testimony failed to connect, and even served to disconnect, her ensuing decisions with the companies’ false pronouncements about those issues.
Instead, as detailed above, Mrs. Berger expressly attributed her decision to begin smoking to peer pressure alone.
IV. New Trial
I turn finally to PMUSA’s alternative motion for new trial. Federal Rule of Civil Procedure 50(c)(1) expressly requires that I conditionally rule on a motion for new trial when granting a renewed motion for judgment as a matter of law. Upon review of the motion, I conditionally grant PMUSA’s motion for new trial on Mrs. Berger’s fraudulent concealment and conspiracy to fraudulently conceal claims.
I may grant a motion for a new trial if I find the jury’s verdict to be contrary to the great weight of the evidence. E.g., Watts v. Great Atl. & Pac. Tea Co.,
As detailed at length above, the great weight of the evidence is contrary to Mrs. Berger’s fraudulent concealment and conspiracy verdict. Mrs. Berger’s own testimony is uncontradicted, direct evidence that she did not rely to her detriment on incomplete representations regarding the health effects and/or addictive nature of smoking cigarettes. This alone is sufficient support for my conditionally granting a new trial on said claims.
Additionally, while I reserve judgment PMUSA’s motion for judgment as a matter of law on all claims (Doc. 135), I take note of the Eleventh Circuit Court of Appeals’s intervening decision Graham v. R.J. Reynolds Tobacco Co. (Graham),
As in Graham, the jury here was instructed in accordance with the Douglas framework: a finding of Engle-class membership necessarily compelled a finding for Mrs. Berger on her negligence and strict liability claims. Thus, I instructed the jury that it must “apply” the Engle findings in further deliberations, including PMUSA’s negligence and strict liability.
that Philip Morris and others concealed or omitted material information, not otherwise known or available, knowing that the concealed or omitted information was false or misleading, or failed to disclose a material fact concerning the health effects and/or addictive nature of smoking cigarettes, or both.
(Doc. 94).
Assuming Graham remains binding precedent, the lens through which the jury viewed the elements of Mrs. Berger’s fraudulent concealment and conspiracy claims was prejudiced by legal error. See Williams,
V. Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT
1. PMUSA’s motion for judgment as a matter of law (Doc. 136) be, and the same hereby is granted;
2. The award of punitive damages against PMUSA and in favor of Mrs. Berger be, and the same hereby is vacated;21
3. PMUSA’s alternative motion for new trial on .the subject claims is conditionally granted;
4. Judgment previously entered in this case (Doc. 131) is hereby vacated and held in abeyance pending the entry of final mandate in Graham v. R.J. Reynolds Tobacco Co., et al., No. 13-14590 (Graham); and
5. PMUSA’s motion for leave to file supplemental briefing (Doc. 154) is denied without prejudice to refiling subsequent to the entry of final mandate in Graham. Ruling is held in abeyance on PMUSA’s remaining motion for judgment as a matter of law (Doc. 135). All post-trial proceedings in this action are stayed pending resolution of any petition for en banc consideration and rehearing in Graham. The parties shall file notice when this matter is resolved.
So ordered.
Notes
. Senior U.S. District Judge, N.D. Ohio, sitting by designation.
. I refer to the cases filed pursuant to the Florida Supreme Court’s opinion in Engle v. Liggett Group, Inc. (Engle III),
.Mrs. Berger testified that students would smoke outside at school, in a "hangout called Cozy’s Comer.”
. Most of those new customers could not and did not know, of course, that they would be reducing their life expectancy, on average, by ten years, and, in any event, exposing themselves to a host of incapacitating and deadly cigarette-caused diseases. By the 1950s and 1960s the tobacco companies joined and often collusively acted to conceal those consequences, despite their own knowledge of the addictive and deadly effects of their products.
. I also instructed the jury that, on her claim of conspiracy to fraudulently conceal, Mrs. Berger had to prove she "relied to her detriment on a statement(s) made or an act(s) done by the defendant, or someone for whose conduct the defendant was responsible ... done in furtherance of an agreement to conceal or omit material information from its representations ... [and that] [h]er reliance was a legal cause of Mrs. Berger’s COPD.” (Doc. 94).
. As the Fifth Circuit noted in Shipman, supra,
. While unfamiliar with the trial record in Martin, I am not convinced Martin itself intended to stand for the proposition advanced by Mrs. Berger. As noted in Searcy, supra,
rejected the [] defendant’s argument that plaintiff failed to prove the reliance element of her fraudulent concealment claim because she put on no direct evidence showing decedent relied on information put out by the tobacco companies omitting scientific findings on the harmful effects of smoking.
Rather, Martin appears to stand for a pledge of allegiance to the power of properly applied, rational, circumstantial evidence. Indeed, one of the two cases cited by Martin in its holding, Bullock v. Philip Morris USA, Inc., stressed the importance of plaintiff not being required to directly prove reliance. See
. Such an approach would seriously alter an Engle-progeny plaintiff’s burden at trial. At a minimum, it would shift the quantum of proof required to prevail on the subject causes of action, and, at worst, eviscerate the plaintiff's burden altogether. It would also, at the same time, damage an Engle defendant’s ability to defend against those remaining elements of plaintiff’s claims.
. As noted above, in his closing argument, Mrs. Berger’s counsel powerfully illustrated PMUSA's conduct. Bending forward and gesturing, he compared that conduct to a truck driver, foot on the gas, beckoning to a pedestrian, and thereby telling her to “come on, come on,’’ cross on over, knowing that he was about to run her down when she did so. Proof of that sort of devious and malicious conduct is, though not enough — the deliberately injured pedestrian must still show that she saw the beckoning finger, and that it lured her into a mistaken sense that it was safe to start walking, and to keep on walking as the truck was about to run her down.
. At trial, the jury found Mrs. Berger to have relied on incomplete representations by PMU-SA and on statement(s) made or act(s) done in furtherance of the conspiracy, both before and on or after May 5, 1982. (Doc. 92). PMUSA contends that judgment as a matter of law is warranted because Mrs. Berger failed to introduce evidence of her alleged detrimental reliance on PMUSA’s fraudulent concealment and conspiracy after May 5, 1982. During the pendency of this motion, however, the Florida Supreme Court rendered decisions in Hess v. Philip Morris USA, Inc.,
. As noted above, Mrs. Berger testified that she had enjoyed the taste and relaxing effect of cigarettes, enjoyed smoking with a cup of coffee, enjoyed the social aspect of smoking, and would feel outcast during her attempts to quit because all her friends smoked.
. The closest a Florida court appears to have come to defining “reliance” in a commercial setting is Sanchez v. Crandon Wholesale Drug Co.,
. I look to the Restatement (2d) as there is some doubt whether Florida will adopt, at least in toto, the Restatement of Torts (3d). See Liggett Group, Inc. v. Davis,
. Section 557A concerns "Fraudulent Misrepresentations Causing Physical Harm,” and, with exception, incorporates rules from sections 525 to 551. Restatement (Second) of Torts § 557A, Cmt. a (1977).
. This, of course, is not to say that a specific incomplete representation, statement, or act must be identified to have directly found its way into a claimant’s reasoning, see Philip Morris USA Inc. v. Putney,
.While detrimental reliance does not require that a representation be made directly to Mrs. Berger, see Naugle, supra,
.Under federal law, nothing precludes jurors from pyramiding inferences so long as the inference relied upon is reasonable under federal standards. See Daniels, supra,
. Florida law is similar in this regard. See Child v. Child,
. Because I find Mrs. Berger did not prove she relied to her detriment, I need not consider whether sufficient evidence supports the jury's determination that Mrs. Berger’s detrimental reliance was a legal cause of her COPD.
. The jury was instructed as follows: 1) Philip Morris was negligent; 2) Philip Morris placed cigarettes on the market that were defective and unreasonably dangerous; 3) Philip Morris and others concealed or omitted material information, not otherwise known or available, knowing that the concealed or omitted information was false or misleading, or failed to disclose a material fact concerning the health effects and/or addictive nature of smoking cigarettes, or both; 4) Philip Morris and others agreed to conceal or omit material information regarding the health effects of cigarettes or their addictive nature with the intention that smokers in the public would rely on the concealed or omitted information
. I take note of the pendency of Lucille Ruth Soffer, etc. v. R.J. Reynolds Tobacco Company, SC13-139, see R.J. Reynolds Tobacco Co. v. Soffer,