R.J. Reynolds Tobacco Co. v. Prentice

• Decision Date: 24 October 2019
• Docket Number: No. 1D17-2104,1D17-2104
• Citation: 290 So.3d 963
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Linda PRENTICE, as Personal Representative of the Estate of John C. Price, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

290 So.3d 963

R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee,

v.Linda PRENTICE, as Personal Representative of the Estate of John C. Price, Appellee/Cross-Appellant.

No. 1D17-2104

District Court of Appeal of Florida, First District.

October 24, 2019

Rehearing Denied January 29, 2020

Jeffrey A. Yarbrough, Robert B. Parrish, and David C. Reeves, of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville; Jason T. Burnette, Charles R.A. Morse, Stephanie E. Parker and John M. Walker of Jones Day, New York, NY; Tony A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, Tampa, for Appellant/Cross-Appellee.

Celene H. Humphries, Maegen Peek Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory D. Prysock and Katherine M. Massa of Morgan & Morgan, P.A., Jacksonville; and Keith R. Mitnik of Morgan & Morgan, P.A., Orlando, for Appellee/Cross-Appellant.

Rowe, J.¹

R.J. Reynolds Tobacco Company (RJR) appeals from a final judgment entered in favor of Linda Prentice, as personal representative of the Estate of John C. Price (the Estate), on her wrongful death claim. RJR raises several grounds for reversal and the Estate raises several issues on cross-appeal. We write only to address RJR's argument that the trial court erred by denying RJR's request for a special jury instruction on conspiracy to commit fraudulent concealment. The trial court's refusal to give the special jury instruction on conspiracy to commit fraudulent concealment was an abuse of discretion because the proposed instruction was a correct statement of the law, was supported by the facts, was necessary for resolving the issues, and the failure to give the instruction was prejudicial.

Facts

Price filed an individual Engle² lawsuit before his death, alleging that his Chronic Obstructive Pulmonary Disease

was caused by his addiction to smoking cigarettes manufactured and marketed by RJR. After Price died, the Estate maintained the suit as a wrongful death action. The Estate alleged causes of action for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment.

Price began smoking when he was 12 years old. By the time he was 16, Price was smoking a pack a day. Price smoked two to three packs of cigarettes a day for most of his adult life. He did not quit smoking until he was 58, when he was diagnosed with COPD. He died 16 years later, at the age of 74.

As with other Engle -progeny cases, the Estate presented evidence that major tobacco companies in the United States, including RJR, made fraudulent statements about the hazards of smoking as early as December 4, 1953. Over a fifty-year period, the tobacco companies concealed information about the addictive nature of nicotine and the harmful effects of smoking while engaging in marketing efforts to encourage people to smoke.

The jury returned a verdict for the Estate on the negligence and strict liability counts. And while the jury found that the major tobacco companies conspired to conceal health information or information about addiction, the jury did not find that RJR's concealment or omission of material information about the health effects and addictive nature of smoking cigarettes was a legal cause of Price's death.

The jury awarded $6.4 million dollars in compensatory damages, apportioning 60% of the fault for the legal cause of Price's death to Price and 40% to RJR. The jury found that punitive damages were warranted but awarded none.

Analysis

We review the failure to give a proposed jury instruction for an abuse of discretion. See R.J. Reynolds Tobacco Co. v. Jewett , 106 So. 3d 465, 467 (Fla. 1st DCA 2012). A trial court abuses its discretion when it does not give a requested instruction that (1) accurately states the law, (2) is supported by the facts of the case, and (3) is necessary for the proper resolution of the issues by the jury—if the requested instruction is not covered by other instructions given to the jury and the failure to give the requested instruction is prejudicial. Id.

RJR argues that the trial court abused its discretion when it instructed the jury on the count of conspiracy to commit fraudulent concealment. RJR argued that for the Estate to prove its conspiracy claim, it would need to show that Price relied to his detriment on a specific statement that concealed or omitted material information about the health risks of smoking. During the charge conference, RJR requested the following instruction:

The next issue for your determination is whether Mr. Price reasonably relied to his detriment on a statement that concealed or omitted material information regarding the health effects of smoking cigarettes or their addictive nature, and that was made in furtherance of Defendant's agreement to conceal health information or information regarding addiction and, if so, whether such reliance was a legal cause of Mr. Price's COPD and death. In order to be a legal cause of COPD and death, Plaintiff must show that Mr. Price relied on statements by Defendant or any of the other companies involved in the agreement that omitted material information concerning the health effect of cigarettes or their addictive nature or both made at any time during or after December 1953. I hereby instruct you that Plaintiff has made no claim for conspiracy to conceal information regarding smoking and health or addiction before December 1953.

Reliance on a statement made in furtherance of an agreement to conceal is a legal cause of COPD and death if it directly and in natural and continuous sequence produces or contributes substantially to producing such COPD and death so that it can reasonably be said that, but for the reliance on the statement omitting the material fact, the COPD and death would not have occurred.

RJR argued that the proposed instruction was proper because conspiracy to commit fraudulent concealment requires proof of reliance on a false or misleading statement made by RJR.

The trial court declined to give the requested instruction and instead gave the following instruction that did not require the jury to find that Price relied on a specific statement:

The next issue for your determination is whether the conspiracy to withhold health information or information regarding addiction and any acts proven in furtherance of that conspiracy were relied upon by John Price to his detriment and were a legal cause of John Price's death.

In regard to this civil conspiracy finding I instruct you that R.J. Reynolds is responsible for every act committed by each of the co-conspirators taken in furtherance of the conspiracy. John Price's reliance to his detriment on a concealment or omission by any of the tobacco companies or tobacco industry groups involved in the conspiracy is a legal cause of John Price's death if it directly and in a natural and continuous sequence produced or contributed substantially to producing his death so that it can reasonably be said that but for John Price's reliance his death would not have occurred.

Based on this Court's recent decision in R.J. Reynolds v. Whitmire , 260 So. 3d 536 (Fla. 1st DCA 2018),³ this was error.

In Whitmire , RJR argued on appeal that the trial court erred when it denied RJR's motion for directed verdict because the Engle plaintiff in that case failed to allege that he detrimentally relied on a fraudulent statement by RJR. This Court acknowledged that "the Engle findings generally establish that [RJR] made misleading statements and concealed material information." Id. at 540. But we agreed with RJR's argument about individual reliance on specific statements and held that to support a claim for fraudulent concealment, an Engle plaintiff must "prove that they relied to their detriment on false statements from the tobacco companies." Id. at 539.

Here, no other jury instruction informed the jury of the need to find that Price detrimentally relied on a false or misleading statement by RJR. RJR's proposed instruction was a correct statement of the law supported by the facts of the case and necessary for the jury to resolve properly the issues. Jewett , 106 So. 3d at 467. The failure to give the requested instruction was prejudicial because the jury might have reasonably been misled by the instruction that was given. See Fla. Power & Light Co. v. McCollum , 140 So. 2d 569, 569 (Fla. 1962) (concluding that the proper "inquiry is whether the jury might reasonably have been misled" and concluding that such constitutes a miscarriage of justice under the civil harmless error statute in effect then); Veliz v. Am. Hosp., Inc. , 414 So. 2d 226, 228 (Fla. 3d DCA 1982) ("An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that otherwise they may not have reached."). Thus, reversal is required.

Disposition

Having reversed the judgment on the conspiracy count, we must consider the appropriate scope of remand. In the concluding sentence of the Initial Brief, RJR asks this Court to "order a new trial or, in the alternative, reduce the judgment by Mr. Price's share of comparative fault."⁴ See Fla. R. App. P. 9.210(b) (requiring that an initial brief contain "a conclusion, of not more than 1 page, setting forth the precise relief sought"). We begin by observing the discretion vested in an appellate court to direct a new trial on one or more issues. See Tracey v. Wells Fargo Bank, N.A. , 264 So. 3d 1152 (Fla. 2d DCA 2019) (discussing the principles governing an appellate court's authority when reversing a trial court judgment). Section 59.35, Florida Statutes (2017), provides:

An appellate court may, in reversing a judgment of a lower court brought before it for review by appeal, by the order of reversal, if the error for which reversal is sought is such as to require a new trial, direct that a new trial be had on all the issues shown by the record or upon a part of such issues only.

Thus, remand directions are within the...