R.J. Reynolds Tobacco Co. v. Rouse, No. 3D19-0629

• Decision Date: 15 July 2020
• Docket Number: No. 3D19-0629
• Citation: 307 So.3d 89
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Paul E. ROUSE, Appellee.
• Court: Florida District Court of Appeals

307 So.3d 89

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Paul E. ROUSE, Appellee.

No. 3D19-0629

District Court of Appeal of Florida, Third District.

Opinion filed July 15, 2020.

King & Spalding LLP., and Scott Michael Edson (Washington, DC) and William L. Durham II (Atlanta, GA), for appellant.

The Alvarez Law Firm and Alex Alvarez and Nicholas Reyes ; The Mills Firm, P.A., and John S. Mills and Courtney Brewer (Tallahassee), for appellee.

Before SALTER, MILLER and LOBREE, JJ.

LOBREE, J.

In this Engle-progeny¹ case, R.J. Reynolds Tobacco Company ("RJR") appeals from a final judgment entered pursuant to a jury verdict in favor of Paul E. Rouse ("Rouse"). We affirm on all issues but write to address RJR's challenge to the denial of its motion for directed verdict on Rouse's claim for civil conspiracy to commit fraudulent concealment on the basis that he failed to prove individual detrimental reliance as required for this claim.

Rouse sued RJR for strict liability, fraud by concealment, conspiracy to commit fraudulent concealment, and negligence, alleging that Rouse, an Engle-class member,² had developed coronary artery disease as a result of his addiction to smoking RJR's cigarettes. He sought both compensatory and punitive damages, and the matter proceeded to a jury trial. Like the plaintiffs in the original Engle litigation, Rouse presented extensive expert testimony that beginning in the early 1950s and for several decades thereafter, large tobacco companies in the United States, including RJR, engaged in a massive disinformation campaign designed to conceal the health hazards of smoking cigarettes and the addictive nature of nicotine. More particularly, in or about 1953, when the tobacco companies’ own scientific research first revealed that cigarettes caused cancer and other diseases and that the nicotine in tobacco was addictive, the tobacco companies bonded together to never reveal that cigarettes were harmful, and instead, they told the public that they would undertake an honest effort to determine the truth about whether there were any negative health consequences of smoking, and promised to share with the public the results of their investigation had it revealed that cigarettes caused harm. Further, not only did the tobacco companies hide information about the dangers of smoking available to them at that point, they subsequently started disseminating misleading information regarding the health effects of cigarettes to plant doubt in people's minds about whether smoking was indeed adverse to health, while still encouraging people to smoke through their pervasive marketing efforts. As part of this disinformation campaign, the tobacco companies, including RJR, also aggressively promoted filtered cigarettes, often using advertisements displaying features of filters as tools of persuasion, suggesting that filtered cigarettes were safer than unfiltered cigarettes, even though they knew that filters did nothing to make cigarettes healthier, as internal filtration was not possible.

Rouse testified about his personal background and life as a smoker. Born in 1954, he grew up in Rocky Mount, North Carolina, a small town where cigarette smoking was so prevalent that the town became known as the "heart of tobbacoland." Rouse tried his first cigarette at age eight or nine and became a regular smoker by age fifteen, smoking one pack of cigarettes per day. By age seventeen, he smoked two packs per day. Throughout his teen years, Rouse was exposed to cigarette advertisements on television, radio, billboards, magazines, and park and bus stop benches. The overall message he was getting from these advertisements was that smoking was normal and "everyone was doing it." Once he became a regular smoker, Rose smoked Winston filtered cigarettes because he believed filtered cigarettes to be safe, as they were so advertised. He specifically recalled an advertisement featuring a cut-open filter with brown residue inside, which gave him an impression that the filter was indeed working. He further testified that if Winston cigarettes did not have a filter, he would have not smoked them. He also acknowledged that he was aware of and believed the warnings on the packages of cigarettes he was purchasing, informing him that he could get diseases and die from smoking, but they did not stop him from smoking.

Rouse first manifested symptoms of coronary artery disease, chest pains, in 1995, and eventually underwent triple bypass surgery in 1999. While he had previously made multiple attempts to quit smoking, he did not actually quit until after his surgery. To prove his addiction to cigarettes containing nicotine, and that such addiction was a legal cause of his coronary heart disease, Rouse presented expert testimony of Dr. Benjamin Toll, an addiction expert, and Dr. Theodore Feldman, a cardiologist. Drs. Toll and Feldman had not previously treated Rouse, but reviewed medical records prepared by Rouse's former treating physicians. From these medical records, Dr. Toll concluded that prior to undergoing his bypass surgery, Rouse was a heavy tobacco user who was repeatedly counseled by his cardiologist and cardiac surgeon to stop smoking, which was a sign of addiction. Dr. Feldman used the records to conclude that Rouse's history of smoking was "by far and away the most significant risk factor" leading to his coronary artery disease. Dr. Feldman also concluded that Rouse's heart disease manifested before the Engle-class period closed on November 21, 1996, as the records reflected that Rouse had suffered from angina pectoris since 1995.

At the close of Rouse's case-in-chief, RJR moved for a directed verdict on the conspiracy claim, arguing that Rouse failed to show reliance on a specific false or misleading statement made by RJR or any other Engle defendant in furtherance of their agreement to conceal or omit information regarding the health effects of cigarettes or their addictive nature. The trial court denied the motion based on the First District Court of Appeal's decision in R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st DCA 2010), which held that an Engle-progeny plaintiff can prove reliance by showing that the smoker was exposed to the tobacco companies’ broad scope of pervasive misleading advertisements.

The jury found that Rouse qualified as a member of the Engle class, returned a verdict in his favor on his conspiracy claim,³ and awarded him $5 million in compensatory damages. Further, the jury found that the punitive damages were warranted and awarded Rouse $2.25 million in punitive damages in the second phase of the trial. Thereafter, the trial court denied all of RJR's post-trial motions. While the jury found that Rouse was fifty percent responsible for his injuries, the court entered judgment on the full amount of the jury's verdict because Rouse prevailed on one of his intentional tort claims.⁴ This appeal ensued.

RJR argues that the court erred in denying its motion for directed verdict on the conspiracy claim because Rouse presented insufficient evidence to support it. More particularly, RJR contends that Rouse failed to prove that he relied upon any specific false or misleading statement made by any of the alleged co-conspirators in furtherance of their agreement to conceal or omit information regarding the health effects of cigarettes or their addictive nature. We review the issue de novo, "view[ing] the evidence and all inferences of fact in the light most favorable to the nonmoving party," Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017), and reject this contention.

Under Florida law, "[a] claim for conspiracy to fraudulently conceal requires proof that the defendant and others agreed to do an unlawful act or to do a lawful act by unlawful means, an overt act was done to further the conspiracy, and the plaintiff[ ] w[as] damaged as a result." Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1106 n.6 (11th Cir. 2018) (citing Martin, 53 So. 3d at 1068 ). Because the Engle findings conclusively established that RJR and other Engle defendants "agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment," Engle, 945 So. 2d at 1257 n.4, to prevail on his conspiracy claim, Rouse was only required to show that he relied to his detriment on a misapprehension concerning a material fact that RJR and other co-conspirators had concealed about the health effects and/or addictive nature of smoking, and that his reliance was a legal cause of his coronary disease, see Cote, 909 F.3d at 1106 ; cf. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 698 (Fla. 2015) (" Engle-progeny plaintiffs must ... prove detrimental reliance in order to prevail on their fraudulent concealment claims."). Florida courts have long recognized that to prevail on a conspiracy claim in an Engle-progeny case, a plaintiff does not have to categorically demonstrate reliance on a specific statement from RJR or another co-conspirator made in furtherance of their agreement. See Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426, 440-41 (Fla. 2d DCA 2017) (stating that under facts of that case, plaintiff was only required to show reliance on misapprehension as to material facts or information concealed or omitted by tobacco companies, rather than on direct statement they made); Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 469 (Fla. 4th DCA 2016) (holding that plaintiff adduced sufficient evidence to establish that deceased smoker relied on tobacco companies’ misleading advertising campaigns in general without necessity of showing his reliance "on any specific statement from a specific co-conspirator"), disapproved of on other grounds by Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018) ; R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 766 (Fla. 4th DCA 2016) ("The instruction...