        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                         PHILIP MORRIS USA INC.,
                                Appellant,

                                        v.

    MICHAEL GENTILE, as Personal Representative of the ESTATE OF
                       BRENDA GENTILE,
                            Appellee.

                                No. 4D18-1439

                             [September 18, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Meenu      Sasser,     Judge;    L.T.    Case     No.
502015CA005405XXXXMB.

  Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington,
DC, and Scott A. Chesin of Mayer Brown LLP, New York, New York, for
appellant.

  Courtney Brewer and John S. Mills of The Mills Firm, P.A., Tallahassee,
and Robert W. Kelley and Eric S. Rosen of Kelley Uustal, PLC, Fort
Lauderdale, for appellee.

DAMOORGIAN, J.

    In this non-Engle 1 wrongful death action, Philip Morris USA Inc. (“PM”)
appeals the final judgment entered in favor of Michael Gentile as
Representative of the estate of his deceased wife, Brenda Gentile
(“Plaintiff”). PM maintains the court erred on two grounds. First, PM
argues that the court improperly denied its motion for directed verdict on
its three fraud-based claims because Plaintiff failed to prove PM made a
false or misleading statement about its light or low-tar cigarettes after May
12, 2003, as required by Florida’s statute of repose. 2 Second, PM asserts


1Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2 Florida’s statute of repose provides that a fraud claim must be filed “within 12
years after the date of the commission of the alleged fraud, regardless of the date
the fraud was or should have been discovered.” § 95.031(2)(a), Fla. Stat. (2015).
that certain comments made by Plaintiff’s counsel during closing
arguments necessitate a new trial. As to the comments made during
closing, we affirm without comment. With respect to the fraud-based
claims, we find that PM is entitled to a directed verdict and, for the reasons
set forth below, reverse and remand for a new trial on the remaining strict
liability and negligence claims.

Background

   Plaintiff filed a wrongful death action against PM asserting Mrs. Gentile
died from lung cancer caused by her addiction to cigarettes designed,
manufactured, advertised, marketed, distributed and/or sold by PM. In
his suit, Plaintiff alleged causes of action for strict liability, negligence,
fraud by concealment, fraud by misrepresentation, and conspiracy to
commit fraud by concealment. At trial, it was established that Mrs. Gentile
smoked at least a pack of cigarettes a day for over 30 years. She smoked
several brands throughout the years, but her main brand was PM’s
Virginia Slims, both lights and ultra-lights. Mrs. Gentile was diagnosed
with Stage IV lung cancer in 2014. She passed away less than six months
later.

   At trial, Plaintiff presented testimony from various experts concerning
the American tobacco industry, generally, and the actions the tobacco
companies took to market their products to consumers while concealing
their harm. For example, in the 1970s, the tobacco companies began
marketing “light” and “ultra-light” cigarettes as having fewer health risks
because they contained less tar and nicotine despite knowing the opposite
to be true. In 1999, PM admitted as much when it created a public website
informing the public that cigarettes were highly addictive and caused
diseases and that “[s]mokers should not assume Light or Ultra Light
brands are safe or are safer than full flavor brands.” The website also
provided links to various health authorities concerning light and low-tar
cigarettes.

   In 2000, PM issued its official position regarding “smoking and health
issues” on its public website, stating:

      Philip Morris USA agrees with the overwhelming medical and
      scientific consensus that cigarette smoking causes lung
      cancer, heart disease, emphysema and other serious diseases
      in smokers. Smokers are far more likely to develop such

As Plaintiff filed his action on May 12, 2015, he had to prove PM made a false or
misleading statement about its light or low-tar cigarettes after May 12, 2003.

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      serious diseases than non-smokers.

      There is no safe cigarette. Cigarettes are addictive and cause
      serious disease in smokers. For those concerned about the
      health risks of smoking, the best thing to do is to quit.

    Then, in November 2002, PM provided newspaper inserts, a 20-page
booklet detailing the health risks of light cigarettes, in several major
newspapers stating that “[l]ow-tar cigarettes evidence does not indicate a
benefit to public health.” Also, in November 2002, PM added onserts, a
folded leaflet placed under the cellophane packaging, to its light and ultra-
light cigarettes. Between 2002 and 2008, every pack of Virginia Slims light
cigarettes contained the onsert which included the following “Information
for Smokers”:

      There is no such thing as a safe cigarette. The terms “Ultra
      Light”, “Light”, “Medium” and “Mild” are used as descriptors
      of the strength of taste and flavor. These terms, as well as
      “low tar” or “lowered tar and nicotine” also serve as a relative
      indication of the average tar and nicotine yield per cigarette,
      as measured by standard government test method.

      The tar and nicotine yield numbers are not meant to
      communicate the amount of tar or nicotine actually inhaled
      by any smoker, as individuals do not smoke like the machine
      used in the government test method. The amount of tar and
      nicotine you inhale will be higher than the stated tar and
      nicotine yield numbers if, for example, you block ventilation
      holes, inhale more deeply, take more puffs or smoke more
      cigarettes. Similarly, if you smoke brands with descriptors
      such as “Ultra Light”, “Light”, “Medium” or “Mild,” you may
      not inhale less tar and nicotine than you would from other
      brands. It depends on how you smoke.

      You should not assume that cigarette brands using
      descriptors like “Ultra Light”, “Light”, “Medium” or “Mild” are
      less harmful than “full flavor” cigarette brands or that
      smoking such cigarette bands will help you quit smoking. If
      you are concerned about the health effects of smoking, you
      should quit. For more information about the numbers, brand
      descriptors or quitting smoking, please go to www.pmusa.com
      or call 1-800-343-0975.



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    In order to establish that PM made a false or misleading statement
about its light or low-tar cigarettes within the repose period
notwithstanding the above disclosures, Plaintiff presented testimony of
two PM corporate representatives, Dr. Lipowicz and Jennifer Pike.
Through his prerecorded deposition testimony taken in 2017, Dr. Lipowicz
explained that light and ultra-light cigarettes have a longer filter, making
the smoke more diluted, which meant less tar and less nicotine. He stated
that light cigarettes are safer than regular full-flavored cigarettes because
“when you lower tar of a cigarette, you reduce exposure of the smokers to
tar and other components, and it . . . makes some reduction in the chance
of getting cancer or other diseases.”

   Jennifer Pike testified that PM continued marketing and advertising
with the terms light and ultra-light until 2010. She further testified that
the terms light and ultra-light “would generally indicate strength of taste
and flavor, and it is also related to a relative level of tar that you could
compare from one style to the other, as measured by the [Federal Trade
Commission] method.”

    At the close of Plaintiff’s case, PM moved for a directed verdict on all
counts. Relevant to the fraud claims, PM argued that Plaintiff did not
provide evidence PM made a false or misleading statement about its light
or low-tar cigarettes during the repose period. The court denied the
motions, finding that the statute of repose presented a “jury issue” in light
of the “advertising” evidence. The court did not specify which “advertising”
evidence created a triable issue for the jury. The jury ultimately returned
a verdict in favor of Plaintiff on all claims and awarded a total of $7.1
million in compensatory damages. The verdict form did not specify the
amounts attributed to each cause of action. This appeal follows.

Analysis

    “The standard of review on appeal of the trial court’s ruling on a motion
for directed verdict is de novo.” Contreras v. U.S. Sec. Ins. Co., 927 So. 2d
16, 20 (Fla. 4th DCA 2006). A directed verdict “must be granted where the
evidence is of such a nature that under no view which the jury might
lawfully take of it, favorable to the adverse party, could a verdict for the
latter be upheld.” Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534,
536 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted).

    PM argues that the court improperly denied its motion for directed
verdict on its fraud-based claims because Plaintiff failed to prove PM made
a fraudulent statement or omission about the safety of its light or low-tar
cigarettes after May 12, 2003. PM maintains that it expressly disclaimed

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any misrepresentation that light or low-tar cigarettes were safer or less
addictive than its full-flavored cigarettes prior to the repose period. We
agree.

    In general, a party cannot recover in fraud for alleged
misrepresentations that have been expressly disclaimed or contradicted in
a later disclosure. See Mac-Gray Servs., Inc. v. DeGeorge, 913 So. 2d 630,
634 (Fla. 4th DCA 2005). The holding in Gurevitch v. Philip Morris USA
Inc., 2009 WL 3848422 (Cal. Super. Ct. Nov. 9, 2009) is instructive. In
Gurevitch, plaintiffs brought a putative class action claiming that PM
misrepresented that its “self-extinguishing” cigarettes were less likely to
start fires. Id. at *1-2. The court ultimately dismissed the action,
reasoning that PM’s “advertisements expressly disclaim[ed] the very
assertions posited by the plaintiff as misleading.” Id. at *3. Specifically,
the advertisements stated the following: “these cigarettes are not fire safe;”
“[d]o not handle or dispose of cigarettes made with this special paper with
any less care than other cigarettes;” and “[a]nything that burns, including
cigarettes or cigarette ashes, can cause a fire if handled carelessly.” Id.

    Because these “uncontroverted disclaimers” put smokers on notice that
the cigarettes could cause injury from ash drop off or any other event
resulting from a burning cigarette, the advertisements were not misleading
as a matter of law. Id.; see also In re AIG Advisor Grp. Sec. Litig., 309 F.
App’x 495, 498 (2d Cir. 2009) (affirming dismissal of fraud claim where
defendant’s website detailed the allegedly undisclosed facts); City of
Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F. 3d 651, 676 (6th Cir.
2005) (“It makes logical sense that a claim based on the alleged
withholding from the public of information that contradicts information
publicly stated is defeated by a demonstration that the allegedly withheld
information was in fact disclosed to the public . . . .”); Ray v. Spirit Airlines,
Inc., 2015 WL 11143079, at *6 (S.D. Fla. June 4, 2015) (“While it is true
that the nondisclosure of material information, even in the absence of any
patently false statements, can also constitute a violation of the mail and
wire fraud statutes where a defendant has a duty to disclose, [the airline’s]
website did disclose the material information Plaintiffs argue is missing.”
(citations and internal quotation marks omitted)); Trujillo v. Apple Comput.,
Inc., 581 F. Supp. 2d 935, 937–39 (N.D. Ill. 2008) (granting summary
judgment in defendant’s favor on concealment claim because the “exterior
of the box in which the customer receives [the product] discloses what
[plaintiff] . . . alleged was hidden”).

   Here, similar to Gurevitch, PM’s pre-May 12, 2003 disclosures
adequately explained “there is no such thing as a safe cigarette” and put
consumers on notice that light and ultra-light cigarettes are of no benefit

                                        5
to public health.       Moreover, the onserts explicitly stated that the
descriptors light and ultra-light referred to strength of taste and that light
and ultra-light cigarettes were not less harmful than regular cigarettes.
The onserts also explained that the terms “low tar” or “lowered tar and
nicotine” referred to the tar and nicotine yield as measured by a
government test method, and “the amount of tar and nicotine you inhale
will be higher” if “you block ventilation holes, inhale more deeply, take
more puffs or smoke more cigarettes.”             Accordingly, any alleged
misrepresentations that PM made in the past regarding light and ultra-
light cigarettes were expressly disclaimed prior to the repose period, thus
foreclosing Plaintiff from recovering in fraud.

   Plaintiff nonetheless argues that the following constituted evidence of
misrepresentation and concealment sufficient to create a jury issue on the
fraud claims: (1) PM’s continued use of the descriptors light and ultra-light
during the repose period; and (2) the testimony of PM’s corporate
representatives. We disagree.

    First, because the pre-May 12, 2003 disclosures adequately disclaimed
any prior misrepresentations regarding light and ultra-light cigarettes, the
continued use of the descriptors light and ultra-light during the repose
period could not constitute a misrepresentation. Second, the testimony of
PM’s corporate representatives did not constitute evidence of fraud.
Although Dr. Lipowicz testified that light cigarettes were safer, his
deposition testimony was taken in August 2017, well after the repose
period ended. Also, Jennifer Pike’s testimony regarding light and ultra-
light cigarettes containing less tar was in reference specifically to the
measuring method employed by the Federal Trade Commission via a
smoking machine. This exact explanation was also included in the
cigarette packaging onserts issued in 2002.

Conclusion

    For the foregoing reasons, we reverse and remand with instructions
that the trial court enter a directed verdict in favor of PM on Plaintiff’s
fraud-based claims. Moreover, because the jury awarded compensatory
damages without specifying the amounts attributable to the non-fraud
claims, we remand for a new trial on the remaining negligence and strict
liability claims. See Flagship Nat’l Bank v. Gray Distribution Sys., Inc., 485
So. 2d 1336, 1341 (Fla. 3d DCA 1986).

   Reversed in part and remanded for a new trial on the limited issues
specified in this opinion.


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LEVINE, C.J., and KUNTZ, J., concur.

                           *           *   *

   Not final until disposition of timely filed motion for rehearing.




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