Evers v. R.J. Reynolds Tobacco Co.

• Decision Date: 06 November 2015
• Docket Number: No. 2D13–2553.,2D13–2553.
• Parties: Cindy EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellant/Cross–Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross–Appellant.
• Court: Florida District Court of Appeals

195 So.3d 1139

Cindy EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellant/Cross–Appellee,

v.R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross–Appellant.

No. 2D13–2553.

District Court of Appeal of Florida, Second District.

Nov. 6, 2015.

Steven L. Brannock, Celene H. Humphries, Ceci Culpepper Berman, and Tyler K. Pitchford of Brannock & Humphries, Tampa; Hendrik Uiterwyk and Brent R. Bigger of Abrahamson & Uiterwyk, Tampa; and Michael J. Trentalange of Trentalange & Kelley, P.A., Tampa, for Appellant/Cross–Appellee.

Troy A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; Elliot H. Scherker, Julissa Rodriguez, and Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami; and Gregory G. Katsas and Edward M. Wenger of Jones Day, Washington, D.C., for Appellee/Cross–Appellant.

KELLY

, Judge.

This lawsuit originated as part of a class action against the appellees, R.J. Reynolds Tobacco Company and Lorillard Tobacco Company,¹ and other tobacco companies seeking damages for diseases caused by smoking cigarettes. The class consisted of all Florida residents who have suffered or have died from diseases and medical conditions caused by their addiction to cigarettes. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1256 (Fla.2006)

. In Engle, the Florida Supreme Court held that individual class members could file separate, individual actions, and that the findings reached by the Engle jury in Phase I of the trial concerning the defendants' misconduct would have a res judicata effect in subsequent individual trials by class members. Id. at 1269.

In this “Engle progeny” case, Cindy Evers, as personal representative of her mother's, Jacqueline Loyd's, estate, challenges the trial court's order that granted the tobacco companies' motion for directed verdict on claims for fraud by concealment and conspiracy to commit fraud by concealment and seeks reinstatement of the punitive damages awarded in connection with those claims. R.J. Reynolds has cross-appealed, challenging the order denying its motion for a new trial. 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 Ms. Loyd relied on the tobacco companies' misleading advertising campaigns. We find no merit in the various points raised on cross-appeal and affirm the trial court's rulings on those issues without further comment.

In her lawsuit, Ms. Evers alleged claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. Posttrial, the trial court directed a verdict on Ms. Evers' fraud and conspiracy claims, concluding that Ms. Evers had “failed to introduce any evidence that Ms. Loyd saw, heard or read any statement that omitted material information or that she relied on such a statement when she chose to begin smoking or to continue smoking.” In granting the motion, the trial court declined to follow R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010)

, which held that a jury could infer reliance based on what the First District described as evidence of “pervasive” cigarette advertising and “the false controversy created by the tobacco industry” about the health risks of smoking. Id. at 1069. Instead, the court accepted the tobacco companies' argument that this court's decision in Humana, Inc. v. Castillo, 728 So.2d 261 (Fla. 2d DCA 1999), stood for the proposition that reliance cannot be inferred from circumstantial evidence.

During the pendency of this appeal, this court issued its decision in Philip Morris USA, Inc. v. Hallgren, 124 So.3d 350 (Fla. 2d DCA 2013)

, in which we cited with approval the holding in Martin that the element of reliance may be inferred from “pervasive and misleading advertising campaigns perpetuated by the Tobacco Companies.” Id. at 353. In light of Hallgren, R.J. Reynolds has abandoned its reliance on Humana and instead contends that notwithstanding Hallgren we can affirm the directed verdict because there was evidence Ms. Loyd was aware of the...