PHILIP MORRIS USA, INC., et al., Petitioners, vs. TINA RUSSO, etc., Respondent.
No. SC12-1401
Supreme Court of Florida
[April 2, 2015]
QUINCE, J.
QUINCE, J.
Philip Morris USA, Inc. (“PM USA“) and R.J. Reynolds Tobacco Company (“R.J. Reynolds“), seek review of the decision
FACTS AND PROCEDURAL HISTORY
In December 2007, Ms. Frazier filed a complaint against PM USA and R.J. Reynolds in the Eleventh Judicial Circuit in and for Miami-Dade County, alleging that her smoking of the defendants’ cigarettes proximately caused her to develop chronic obstructive pulmonary disease (COPD).2 Ms. Frazier brought claims of strict liability-defectivе design, negligent design, fraud by concealment, and civil conspiracy-fraud by concealment. Punitive damages were sought in her fraud by concealment and civil conspiracy-fraud by concealment claims. The defendants each raised statutes of limitations and statutes of repose defenses in their answers.
The testimony offered at trial includеd that Ms. Frazier started smoking in 1945, when she was fourteen or fifteen years old. Ms. Frazier smoked Winston cigarettes but switched to the Carlton brand of cigarettes because it advertised that it had the lowest tar and nicotine in its cigarettes. Ms. Frazier then switched to Parliaments because that brand advertised “the recessed filter” in its cigarettes, which she thought was better for her. In relying on advertising and believing that it was better for her, Ms. Frazier made a final switch to Benson & Hedges Ultra Lights. Ms. Frazier testified that the advertisements were “influential,” and that the “tobacco company” did not tell her that it was hazardous, which she relied on. Ms. Frazier stated that the correctness of the warning displayed on the cigarette packаges was “controversial” because “there wasn‘t any definite information.”
Ms. Frazier admitted that she was aware that cigarettes were addictive in 1963, and by the mid-1970s, she was aware that smoking could cause lung cancer, COPD, and emphysema. In 1991, Ms. Frazier was informed that she had an asthma attack. In that same year, Ms. Frazier‘s pulmonologist‘s impression was that she suffered from tobacco addiction with underlying COPD. In 1992, Ms. Frazier quit smoking. The pulmonologist testified that Ms. Frazier‘s first “real” documented COPD was in 1993, when she was told that she had COPD and emphysema. According to her physician,
Ms. Frazier presented the following testimony relating to the cоnduct on the part of the tobacco companies. In 1953, when the studies first linked cigarettes and cancer, the tobacco companies hired scientists who confirmed that cancer rose dramatically as people smoked more cigarettes. In response to public concerns, the tobacco compаnies issued “A Frank Statement,” wherein claims were made about the safety of cigarette smoking which were reinforced by advertisements and public interviews given by tobacco executives. The companies’ publicly made claims were contradicted by their internal research. As early as 1961, the tobacco companies’ internal dоcuments reflected the ineffectiveness of filters in removing cancerous components. Tobacco companies knew nicotine was addicting and that smoking causes lung cancer and emphysema.
Ms. Frazier also offered testimony that the head of research at PM USA said in a 1976 interview that the company is “sincere” in its belief that cigarettes are not harmful. The head of the Tobacco Institute testified during a 1978 Congressional subcommittee meeting that smoking is not causing deaths and that science does not know if smoking causes death. A Tobacco Institute spokesperson stated in 1983 that “I don‘t think that there has been a causal relationship established between cigarettе smoking and any other disease.” In 1984, R.J. Reynolds took out advertisements in major newspapers and magazines calling for an open debate regarding smoking‘s danger, which would show that smoking does not cause cancer. A tobacco spokesperson stated in 1984 that “[i]t is not known whether cigarettes cause cancer.” After the 1988 Surgeon Generаl‘s report asserted that nicotine was addicting, the Tobacco Institute released a statement that said “it has not been established that cigarette smoking produces a physical dependence to nicotine.” In 1994, tobacco company executives testified under oath before Congress that nicotine was not addictive аnd that “it has not been proven that cigarette smoking causes cancer.” In 1999, the tobacco companies admitted that smoking was harmful.
As to the fraudulent concealment and civil conspiracy of fraudulent concealment claims, the jury was instructed that the
defendants concealed or omitted material information not otherwise known or available knowing that the material was false and misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both, and defendants agreed with each other, with other companies, or both to conceal or omit information concerning the heаlth effects or the addictive nature of smoking cigarettes or both.
The defendants requested that the trial judge instruct the jury on
Please state as to each Defendant whether the Defendant, [after December 14, 1995] [after May 5, 1982], made a statement that concealed or omitted material information concerning the health effects and/or the addictive nature of smoking cigarettes and, if so, whether Ms. Frazier relied on the statement to her detriment such that, but for the statement, she would have acted differently and avoided her injuries.
Instead, the following question was submitted to the jury on the verdict form:
Please state as to each Defendant whether Plaintiff relied to her detriment on a statement by that Defendant that concealed or omitted mаterial information concerning the health effects and/or the addictive nature of smoking cigarettes and, if so, whether Plaintiff relied on the statement to her detriment such that, but for the statement, she would have acted differently and avoided her injuries.
Philip Morris USA Inc. Yes ____ No ____
R.J. Reynolds Tobacco Company Yes ____ No ____
The verdict form question concerning the conspiracy claim provided as follows:
Pleasе state as to each Defendant whether Plaintiff relied to her detriment on a statement made in furtherance of that Defendant‘s agreement with others to conceal or omit material information
regarding the health effects and/or addictive nature of smoking cigarettes and, if so, whether, but for the statement, she would have acted differеntly and avoided her injuries.
Philip Morris USA Inc. Yes ____ No ____
R.J. Reynolds Tobacco Company Yes ____ No ____
The jury found that Ms. Frazier was addicted to cigarettes containing nicotine and that her addiction was a legal cause of her COPD or emphysema. However, the jury determined that prior to May 5, 1990—which was four years prior to the filing of the Engle class complaint—Ms. Frazier knew or should have known in the exercise of reasonablе care that she had been injured and that there was a causal connection between her smoking and her injury. Ms. Frazier‘s claims were thus barred by the applicable four-year statutes of limitations. As instructed, the jury did not decide the issues of causation, the fraudulent concealment and conspiracy claims, comparative fault, compensatory damages, and the entitlement to punitive damages.
Thereafter, Ms. Frazier moved for a directed verdict on the statutes of limitation defense and for a new trial, contending that the defendants failed to present any evidence that Ms. Frazier was on notice of a causal connection between her smoking and her develоpment of COPD or emphysema on or before May 5, 1990. Her motions were denied, and accordingly, final judgment was entered in favor of the defendants.
Ms. Frazier appealed the trial court‘s denial of her motions for directed verdict and for a new trial. Frazier, 89 So. 3d at 939. Finding no competent record evidence that Ms. Frazier‘s claims accrued before the statute of limitations bar date, the Third District reversed and remanded for a new trial with instructions that the trial
PM USA and R.J. Reynolds cross-appealed, asserting that Ms. Frazier‘s fraudulent concealment and conspiracy to conceal claims were barred by
Therefore, the Third District found no error in the trial court‘s denial of the instruction on the fraud statute of repose. Id. at 948.5 PM USA and R.J. Reynolds then sought review of the district court‘s decision in Frazier relating to their cross-appeal claims.6
ANALYSIS
Pursuant to the statute of repose contained in
In Engle, 945 So. 2d 1246, we concluded that certain Phase I jury findings, including findings pertinent to fraudulent concealment7 and civil conspiracy-concealment claims,8 were entitled to res judicata effeсt in individual actions, provided that they were filed against the defendants within one year of our mandate. Id. In Hess v. Philip Morris USA, Inc., No. SC12-2153 (Fla. Apr. 2, 2015), we recently held that the statute of repose provided in
Engle-progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims. While we look to reliance in determining when an action accrued for the application of the fraud statute of limitations, the accrual of an action has no bearing on the fraud statute of repose. Because statutes of repose “run[] from the date of a discrete act on the part of the defendant,” Kush [v. Lloyd], 616 So. 2d [415,] 418 [(Fla. 1992)], we hold that the defendant‘s last act or omission triggers Florida‘s fraud statute of repose. In other words, we find that “the date of the commission of the alleged fraud” under section 95.031(2), refers to the defendant‘s wrongful conduct. Thus, we conclude that for statute of repose purposes it is not necessary that the smoker relied during the twelve-year repose period. Where there is evidence of the defendant‘s wrongful conduct within the repose period, the statute of repose will not bar a plaintiff‘s fraudulent concealment claim. In its Phase I verdict form, the Engle jury found that the Engle defendants committed fraud by concealment based on conduct that occurred after May 5, 1982, i.e., during the statute оf repose period.
Because we hold that the defendants’ last act or omission triggers the fraud statute of repose and since the Engle jury found that the Engle defendants’ fraudulent concealment conduct occurred within the repose period, we conclude that the Engle defendants are precluded as a matter of law from asserting the fraud statute of repose defense in Engle-progeny cases.
Hess, No. SC12-2153 at 22-23.
In the instant case, unlike in Hess, both fraudulent concealment and conspiracy to commit fraud by concealment claims were submitted to the jury.9 Consistent with our decision in Hess, we conclude that the district court below properly determined that the trial court did not err in denying PM USA and R.J. Reynolds’ requested jury instruction on the fraud statute of repose. We emphasize that evidence of reliance need not be established within the fraud statute of repose period. PM USA and R.J. Reynolds’ requested jury instruction would have precluded the jury from considering any evidence of reliance prior to the repose period.10
We therefore disapprove the decisions of the Fourth District in Naugle and Cohen, which require reliance during the statute оf repose period. See Naugle, 103 So. 3d at 947 (“Because fraudulent concealment requires proof of reliance, Naugle‘s claim is barred unless the record demonstrates that she justifiably relied on statements or omissions made after that date [May 5, 1982].“); Cohen, 102 So. 3d at 15 (“[A]ppellee‘s fraudulent concealment claim had to be based on conduct that occurred after May 5, 1982—she must prove that Nathan relied upon statements or omissions by
CONCLUSION
In light of the foregoing, we approve the Third District‘s decision in Frazier to the extent of its conclusion concerning the statute of repose and disapprove Naugle and Cohen.11
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions
Third District - Case No. 3D11-580
(Miami-Dade County)
William Patrick Geraghty, Frank Cruz-Alvarez, and Alexandria Bach Lagos of Shook, Hardy & Bacon L.L.P., Miami, Florida; Raoul G. Cantero, III of White & Case LLP, Miami, Florida; Gregory George Katsas of Jones Day, Washington, District of Columbia; Benjamine Reid, Alina Alonso Rodriguez, аnd Olga Marie Vieira of Carlton Fields Jorden Burt, P.A., Miami, Florida; and Lauren R. Goldman and Scott A. Chesin of Mayer Brown LLP, New York, New York,
for Petitioners
Philip Maurice Gerson and Edward Steven Schwartz of Gerson & Schwartz, P.A., Miami, Florida,
for Respondent