                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

KAREN WHITNEY,                      NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D13-3709

R. J. REYNOLDS TOBACCO
COMPANY and PHILIP
MORRIS USA, INC.,

     Appellees.
____________________________/

Opinion filed December 5, 2014.

An appeal from the Circuit Court for Alachua County.
Toby S. Monaco, Judge.

Robert W. Kelley, Todd R. McPharlin and Eric S. Rosen of Kelley Uustal, PLC,
Fort Lauderdale; Steven L. Brannock, Celene H. Humphries, Ceci Culpepper
Berman and Tyler K. Pitchford of Brannock & Humphries, Tampa; Gregory D.
Prysock and Katherine M. Massa of Morgan & Morgan, P.A., Jacksonville; Keith
R. Mitnik of Morgan & Morgan, P.A., Orlando, for Appellant.

W. Randall Bassett and Frank T. Bayuk, William L. Durham, II, and Jennifer C.
Kane of King & Spalding, LLP, Atlanta; Ursula M. Henninger of King &
Spalding, LLP, Charlotte, NC; Jeffrey A. Yarbrough, Robert B. Parrish and David
C. Reeves of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, for
Appellee R. J. Reynolds Tobacco Company.

Mark J. Heise, Stephen N. Zack, Shani Salama and Jason S. Zack of Boies,
Schiller & Flexner LLP, Miami; Geoffrey J. Michael of Arnold & Porter LLP,
Washington, DC; Joseph H. Lang, Jr. of Carlton Fields Jorden Burt, P.A., Tampa,
for Appellee/Cross-Appellant Philip Morris USA, Inc.
THOMAS, J.

        In this non-Engle1 progeny tobacco case, Appellant appeals a directed

verdict in favor of Appellees on her negligence and strict liability claims, the trial

court’s denial of her request for a jury instruction addressing a claim of negligent

misrepresentation, and the final judgment in favor of Appellees on the claim for

failure to warn. As explained below, we reverse the directed verdict and affirm as

to the remaining issues without further comment.

                                  Factual Summary

        Appellant sued Appellees for negligence and strict liability, alleging that

various design defects in Appellees’ cigarettes increased the likelihood of

Appellant becoming addicted to smoking Appellees’ cigarettes and suffering

cancer.     Among Appellees’ defenses was their claim that Appellant was

comparatively at fault, which Appellant conceded at trial.

        Appellant presented extensive evidence in support of her claims, including

expert testimony, during the course of a lengthy trial.          Appellant’s expert,

Dr. Burns, testified extensively about the various design changes and alleged

1
    Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1256-57 (Fla. 2006).
                                           2
defects in Appellees’ cigarettes and the effect of these defects on smokers,

including making cigarettes easier to smoke, especially for beginning smokers,

thus increasing the likelihood that a person would continue to smoke and become

addicted.    He also testified that Appellees’ cigarettes delivered potential

carcinogens deeper into the lungs than regular full-flavored cigarettes. Thus,

Dr. Burns opined that these defects “would increase the likelihood that [Appellant]

would get cancer from smoking [Appellees’] cigarettes” and that the design

changes “were a substantial contributing cause to [Appellant’s] lung cancer.” He

testified further that the cigarettes “did not deliver, when smoked, what was

promised in the marketing of those products. That is, a reduction of tar delivery

and a reduction of risk.”

      In relevant part, during Appellees’ cross-examination of Dr. Burns, he

testified as follows:

             Q. . . . Are you saying that if [Appellant] had not
             switched to low-tar cigarettes, she would not have gotten
             lung cancer?

             A. I can't say that to a reasonable degree of medical
             certainty because it's not clear that there is a doubling of
             the risk produced by these design changes, which is what
             would be required to make a statement of more than 50
             percent or more likely or medically more likely than not.

             ...

             Q. Well, can you say to a reasonable degree of medical
             probability that if she had only smoked regular, full-
                                          3
            flavored cigarettes, she would not have gotten lung
            cancer? . . .

            A. I can't say that in a statement that is medically more
            likely than not. . . .

            Q. . . . [C]an you or can you not say to a reasonable
            degree of medical probability that if she had smoked only
            full-flavor cigarettes, she would not have gotten lung
            cancer?

            ...

            A. I don't believe I can say that that would be
            scientifically true . . . .

      At the conclusion of Appellant’s case, Appellees moved for a directed

verdict, arguing, inter alia, that Appellant failed to establish legal causation

between the alleged design defects and her lung cancer. Relying on Dr. Burns’

cross-examination testimony, Appellees argued that pursuant to Gooding v.

University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984), Appellant failed to

meet her burden as to causation. Appellant countered that the defects in question

could be a legal cause of injury, if they operated in combination with other causes,

because, as Dr. Burns testified, they “substantially contribute[d]” to producing the

injury.

      The court agreed with Appellees, ruling that “on cross-examination,

[Dr. Burns] explained that his definition of substantial contributing cause does not




                                         4
meet the legal test that was illustrated” in Gooding. The trial court further found

that, on cross-examination, Dr. Burns “disavowed” his earlier testimony.

      The jury returned with a defense verdict on the sole remaining claim of

failure to warn before 1969. Appellant’s motion for a new trial was denied, and

this appeal ensued.

                                     Analysis

      A trial court’s ruling on a motion for directed verdict is reviewed de novo.

Williams v. Washington, 120 So. 3d 1263, 1264 (Fla. 1st DCA 2013). “[I]n

reviewing the propriety of a directed verdict, an appellate court must weigh the

facts and inferences to be drawn therefrom in the light most favorable to the person

against whom judgment has been granted. A directed verdict can be upheld only if

there is no evidence or inference from the evidence which will support the non-

moving party’s position. Moreover, a directed verdict in a negligence action

should only be entered if the plaintiff could not recover under any reasonable

view of the evidence.” Kowkabany v. Home Depot, Inc., 606 So. 2d 716, 719-20

(Fla. 1st DCA 1992) (emphasis added; citation omitted).

      In a negligence or strict liability action in a tobacco case based on design

defect, at issue are causation, comparative fault, and damages, regardless of

whether the plaintiff is a member of the Engle class. See R.J. Reynolds Tobacco

Co. v. Martin, 53 So. 3d 1060, 1063 (Fla. 1st DCA 2010) (explaining that the court

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in Engle decertified the class for “Phase III” of the litigation, as class treatment

was infeasible, “‘because individualized issues such as legal causation,

comparative fault, and damages predominate . . . .’”) (quoting Engle, 945 So. 2d at

1268, 1277); see also, R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 715

(Fla. 4th DCA 2011) (holding that, in post-Engle cases, “the remaining elements of

the underlying claims, i.e. legal causation and damages, must be proven in the

second phase of trial.”).

      In Gooding, the Florida Supreme Court stated:

            In negligence actions Florida courts follow the more likely than
      not standard of causation and require proof that the negligence
      probably caused the plaintiff's injury. Prosser explored this standard
      of proof as follows:

                 On the issue of the fact of causation, as on other
             issues essential to his cause of action for negligence, the
             plaintiff, in general, has the burden of proof. He must
             introduce evidence which affords a reasonable basis for
             the conclusion that it is more likely than not that the
             conduct of the defendant was a substantial factor in
             bringing about the result. A mere possibility of such
             causation is not enough; and when the matter remains
             one of pure speculation or conjecture, or the
             probabilities are at best evenly balanced, it becomes the
             duty of the court to direct a verdict for the defendant.

         Prosser, Law of Torts § 41 (4th Ed. 1971) (footnotes omitted).

Gooding, 445 So. 2d at 1018 (citations omitted) (emphasis added). In other words,

a defendant’s conduct need not be the only cause of a plaintiff’s injuries, or even

fifty-one percent of the cause; rather, the plaintiff must present evidence that the
                                         6
defendant’s conduct was, more likely than not, a “substantial factor” in causing the

injury. Thus, the plaintiff is not required to prove that the defendant’s conduct

alone was more likely than not the sole proximate cause.

      Here, in directing a verdict in Appellees’ favor on the issue of causation, the

learned trial court erred in its interpretation of Dr. Burns’ testimony and the

standard for establishing causation. Dr. Burns was essentially asked whether he

could say that Appellant would not have developed lung cancer at all, if she had

only smoked regular cigarettes rather than the cigarettes with the alleged design

defects. Dr. Burns replied that he could not say that, “because it’s not clear that

there is a doubling of the risk produced by these design changes, which is what

would be required to make a statement of more than 50 percent . . . more likely

than not.” But this was neither the ultimate issue nor the correct legal standard for

causation.

      Appellant did not claim that she never would have developed lung cancer if

she had smoked non-filtered, full-flavored cigarettes instead of Appellees’

engineered cigarettes.   Such a claim would have been unsupportable on the

evidence, and Appellees themselves conceded that all cigarettes can cause lung

cancer. Rather, Appellant’s claim asserted that Appellees’ cigarettes with the

defective designs increased her risk of becoming and remaining addicted to

smoking and of developing lung cancer. The design changes underlying this

                                         7
theory included filters, chemical adjustments, and flavoring.            Also, despite

Appellees’ marketing which suggested the contrary, their cigarettes did not have

less tar than regular cigarettes, and thus were potentially more injurious to health

by falsely lulling smokers into a dangerous complacency.

        The “more likely than not” or “but for” standard of causation did not require

Appellant to prove Appellees’ negligence or defective product doubled the risk of

injury, i.e., that it was more than fifty percent of the cause of her injury, or that it

was the only cause of her cancer.          Thus, Florida Standard Jury Instruction

401.12(a) provides:2

        Negligence is a legal cause of [loss] [injury] [or] [damage] if it
        directly and in natural and continuous sequence produces or con-
        tributes substantially to producing such [loss] [injury] [or]
        [damage], so that it can reasonably be said that, but for the
        negligence, the [loss] [injury] [or] [damage] would not have occurred.
(Emphasis added.) The second “Notes for Use” for this instruction explains that a

“jury will properly consider instruction 401.12(a) not only in determining whether

defendant’s negligence is actionable but also in determining whether claimant’s

negligence contributed as a legal cause to claimant’s damage, thus reducing

recovery.”

       In addition, Florida Standard Jury Instruction 401.12(b) provides:

        In order to be regarded as a legal cause of [loss] [injury] [or] [damage]
        negligence need not be the only cause. Negligence may be a legal
        cause of [loss] [injury] [or] [damage] even though it operates in
        combination with . . . [some other cause] if the negligence
        contributes substantially to producing such [loss] [injury] [or]
2
    Appellees themselves proposed using this instruction.
                                          8
      [damage].
(Emphasis added.) And as the court explained in Hoffman v. Jones, the very

purpose of a comparative fault determination is “[t]o allow a jury to apportion fault

as it sees fit between negligent parties whose negligence was part of the legal and

proximate cause of any loss or injury . . . .” 280 So. 2d 431, 439 (Fla. 1973),

(emphasis added).

      In the context of a tobacco case such as this, the plaintiff must typically

prove an addiction to cigarettes containing nicotine and that this addiction was a

legal cause of the illness at issue. “‘Addiction is a legal cause of death if it directly

and in a natural and continuous sequence produces or contributes substantially to

producing such death . . . so that it can reasonably be said that, but for the

addiction to cigarettes containing nicotine, the death would not have occurred.’”).

Martin, 53 So. 3d at 1065 (quoting with approval the trial court’s jury instruction)

(emphasis added). Accord Philip Morris USA, Inc. v. Allen, 116 So. 3d 467, 472

(Fla. 1st DCA 2013).        “Whether the addicted individual kept smoking after

learning of cigarettes’ deleterious health effects is a question of comparative fault,

and thus, of liability to be determined at trial.” Lorillard Tobacco Co. v. Mrozek,

106 So. 3d 479, 481 (Fla. 1st DCA 2012). See e.g., Brown, 70 So. 3d 707 (finding

plaintiff fifty percent liable); Philip Morris USA, Inc. v. Hess, 95 So. 3d 254 (Fla.

4th DCA 2012) (finding plaintiff fifty-eight percent at fault).


                                           9
      In Cox v. St. Josephs Hospital, the court explained the proper application of

Gooding is as follows: “while a directed verdict is appropriate in cases where the

plaintiff has failed to provide evidence that the negligent act more likely than not

caused the injury, . . . [i]f the plaintiff has presented evidence that could support a

finding that the defendant more likely than not caused the injury, a directed verdict

is improper.” 71 So. 3d 795, 801 (Fla. 2011) (italicized emphasis supplied; bolded

emphasis added). Thus, the phrase “but for” is meant to convey the principle that a

defendant’s actions must, “more likely than not,” have been “a substantial factor”

in producing the injury. However, if the evidence supports only speculation that a

defendant’s conduct contributed substantially to causing the injury, the defendant

cannot be held liable. Gooding, 445 So. 2d at 1018.

      Here, Appellant “presented evidence that could support a finding that

[Appellees] more likely than not caused” her lung cancer, making a directed

verdict improper. Cox, 71 So. 3d at 801 (emphasis added). And to the extent that

Dr. Burns’ cross-examination testimony quoted above may, as the trial court

found, have operated to “disavow” his testimony on direct, it was not a proper

ground for a directed verdict, because it would go to the weight of the evidence,

which is for the jury to consider. See, e.g., Hildwin v. State, 141 So. 3d 1178,

1187 (Fla. 2014) (holding: “Questions surrounding the materiality of the evidence

and the weight to be given such evidence are for the jury.”). Thus, we reverse the

                                          10
ruling granting Appellees’ directed verdict on the negligence and strict liability

claims. We affirm on all other issues.

      AFFIRMED in part, REVERSED in part, and REMANDED.

BENTON and ROBERTS, JJ., CONCUR.




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