           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                   FOURTH DISTRICT

                            PHILIP MORRIS USA INC.,
                                   Appellant,

                                           v.

    BERNICE MCCALL, individually and as Personal Representative of the
                    Estate of MARTIN MCCALL,
                              Appellee.

                                    No. 4D16-2016

                                [December 13, 2017]

   Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case
No. 2007CV36888 (19).

  David F. Northrip and William P. Geraghty of Shook Hardy & Bacon
LLP, Kansas City, Missouri, and Miami, and Frances Daphne O’Connor
and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington,
DC, for appellant.

   Shea T. Moxon, Celene H. Humphries, Maegen Peek Luka and Thomas
J. Seider of Brannock & Humphries, Tampa, and Alex Alvarez of The
Alvarez Law Firm, Coral Gables, and Jordan L. Chaikin of Chaikin Law
Firm PLLC, Fort Myers, for appellee.

DAMOORGIAN, J.

   In this Engle 1 progeny case, Philip Morris USA Inc. (“PM”) appeals a
final judgment entered in favor of Bernice McCall (“Plaintiff”), individually
and as the personal representative of the estate of Martin McCall
(“Decedent”), on her survival and loss of consortium claims. PM argues
that the loss of consortium award must be vacated because the claim was
barred by the applicable statute of limitations. PM also argues, as it does
in every Engle appeal, that the court’s application of the Engle common
core findings violated its due process rights. Plaintiff cross-appeals,
asserting that the court erred in instructing the jury on the elements
necessary to establish fraudulent concealment and conspiracy to commit

1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
fraudulent concealment as well as the legal effect of cigarette warning
labels. Additionally, Plaintiff argues that the court erred in reducing the
jury’s award by its allocation of the Decedent’s comparative fault. We
continue to reject PM’s due process argument based on Philip Morris USA,
Inc. v. Douglas, 110 So. 3d 419, 435−36 (Fla. 2013), and likewise reject
Plaintiff’s comparative fault argument based on R.J. Reynolds Tobacco Co.
v. Schoeff, 178 So. 3d 487, 495−96 (Fla. 4th DCA 2015). We also find no
error in the court’s instructions on Plaintiff’s fraudulent concealment and
conspiracy to commit fraudulent concealment claims. However, we find
merit in both parties’ remaining positions and, for the reasons set forth
below, reverse and remand for a new trial.

                                    The Facts

   Plaintiff sued PM pursuant to Engle, alleging that her deceased
husband died from lung cancer caused by an addiction to smoking
cigarettes manufactured and marketed by PM. Plaintiff alleged causes of
action for strict liability, fraud by concealment, conspiracy to commit fraud
by concealment, and negligence. Plaintiff sought relief for her negligence
claims under the Florida Wrongful Death Act and, in the alternative,
asserted a survival claim for damages based on the injuries suffered by
Decedent prior to his death. 2 In conjunction with her alternative survival
claim, Plaintiff also asserted a loss of consortium claim. In response, PM
asserted several affirmative defenses, including bar by the statute of
limitations.

   The case was set to be tried in two phases. In the first phase, the jury
was asked to determine if Decedent was a member of the Engle class and,
if so, liability, compensatory damages, and entitlement to punitive
damages. The second phase was reserved for the determination of the
proper amount of punitive damages, if any.


2 Plaintiff’s alternative survival claim is dubbed a “survival” claim due to the
survival action statute, section 46.021, Florida Statutes (2007), which preserves
actions the decedent filed or may have filed prior to his or her death. Based on
this statute, a personal representative may bring and maintain a personal injury
action on behalf of the decedent. If, however, the personal injury was the cause
of the decedent’s death, the personal injury action “abates” and becomes a
wrongful death cause of action under the Florida Wrongful Death Act. § 768.20,
Fla. Stat. (2007). “[I]t is permissible for a personal representative to pursue both
a claim for survival damages and an alternative wrongful death claim where the
cause of the decedent’s death may be disputed by the parties.” Capone v. Philip
Morris USA, Inc., 116 So. 3d 363, 378 (Fla. 2013).


                                         2
   Evidence

   During the first phase of trial, Plaintiff presented the following evidence
concerning the Decedent’s smoking history, illness, and death.

    Decedent was born in 1940 and began smoking cigarettes in the early
1950s when he was twelve or thirteen years old and continued to smoke
them for the next thirty-plus years. Plaintiff testified that when she met
Decedent in 1971, he was smoking about a pack a day. Decedent primarily
smoked cigarettes with filters, which according to Plaintiff, Decedent
believed were “safe” to smoke. Plaintiff testified that Decedent’s belief
came from advertisements, specifically Parliament advertisements, which
stated that cigarettes with filters were “lower in tar and nicotine.”
Decedent went so far as to cut out the filter of a smoked cigarette and show
it to Plaintiff, explaining that the black spots on the filter were the filtered-
out nicotine and tar.

   Decedent was diagnosed with lung cancer in September of 1992, when
he was 52 years old. Shortly after his diagnosis, Decedent underwent
surgery to remove a cancerous lobe of his right lung. After his discharge
from the hospital, Decedent began radiation and chemotherapy treatment.
Not long thereafter, Decedent was readmitted to the hospital for breathing
complications. Decedent died in the hospital in November of 1992. The
causes of death listed on Decedent’s death certificate were “adult
respiratory distress syndrome” and “possible fungal pneumonia.”

    Plaintiff also presented testimony from several experts concerning the
actions of the tobacco companies and the health effects of smoking. This
testimony, like the testimony in almost every Engle case, established that
the tobacco companies knew of the addictive nature of nicotine and the
harmful effects of smoking well before the public health community did
and, over a fifty-year period of time, took concerted efforts to obfuscate
this information while encouraging people to smoke through marketing
efforts. For example, the tobacco companies marketed filtered cigarettes
as having fewer health risks because they contained less tar and nicotine
when in fact, they knew the opposite.

   PM’s Motion for Directed Verdict

   At the close of Plaintiff’s evidence, PM moved for a directed verdict on
Plaintiff’s alternative loss of consortium claim. PM argued that Plaintiff’s
claim accrued, at the latest, when Decedent died in 1992. As Plaintiff did
not file her suit until 2007, nearly fifteen years later, PM maintained that
Plaintiff’s loss of consortium claim was barred by the applicable four-year

                                       3
statute of limitations. Plaintiff countered that as Decedent’s survivor, she
was an Engle class member and, therefore, was entitled to the tolling effect
of the initial Engle lawsuit filing. The court agreed with Plaintiff and denied
PM’s motion.

   Jury Instructions

   On the reliance element of Plaintiff’s fraudulent concealment claim, the
court instructed the jury as follows:

      On this claim, the issue for your determination is whether
      [Decedent] reasonably relied to his detriment on any
      statement of material fact by PM USA that concealed or
      omitted material information not otherwise known or available
      concerning the health effects or addictive nature of smoking
      cigarettes and, if so, whether such reliance was a legal cause
      of [Decedent’s] lung cancer.

   Similarly, the conspiracy instruction contained the following direction:

      On this claim, the issue for your determination is whether
      [Decedent] reasonably relied to his detriment on statements
      made in furtherance of PM USA’s agreement to conceal or omit
      information concerning the health effects or addictive nature
      of cigarettes; and, if so, whether such reliance was a legal
      cause of his lung cancer.

   Plaintiff opposed these instructions, arguing that requiring reliance on
a “statement” was too narrow because it precluded liability based solely on
fraudulently concealed information. Instead, Plaintiff argued that the jury
should be instructed that PM could be liable if Decedent “reasonably relied
to [his] detriment on an act or omission taken in furtherance of [PM’s]
agreement to conceal or omit information concerning the health effects or
addictive nature of cigarettes . . . .”

   Per PM’s request, the court also provided the jury with the following
instruction on the effect of cigarette warning labels:

      The warning labels placed on cigarette packs by [PM] and
      other tobacco companies complied with federal law. After July
      1, 1969, [PM], and other tobacco companies had no obligation
      to place any additional warnings on their cigarette packages.



                                      4
      Further, as long as the cigarette packs bear the federally
      mandated warnings, cigarette advertising after July 1, 1969
      cannot be the subject of any claim that the advertising
      undermined or neutralized the warnings or made them less
      effective.

Plaintiff objected to this instruction, arguing that it was inapplicable
because she was not bringing a failure to warn claim. Alternatively,
Plaintiff argued that the instruction implied PM was without liability for
cigarettes sold after July 1, 1969 so long as there were labels on the packs.
Therefore, Plaintiff asserted that the instruction should include language
making it clear that PM could still be liable for false and misleading
information provided in its advertising. The court rejected Plaintiff’s
arguments and provided the instruction requested by PM.

   Closing Arguments

   During its closing argument, PM’s counsel repeatedly referred to the
opposed warning label instruction. After arguing for some time that
Decedent was not truly addicted to cigarettes, PM’s counsel then argued
that, contrary to Plaintiff’s testimony, Decedent did not smoke filtered
cigarettes because he thought they were safe. It then asked the jury to
consider the cigarette warning label instruction, stating that “the
instruction kills the plaintiff’s whole claim. Kills the plaintiff’s whole
claim.” Plaintiff objected to this argument and, although the court
sustained her objection, PM’s counsel continued by arguing: “When you
go back and you read the instructions and you consider the evidence,
you’ll see that the plaintiff can’t maintain their claim when you consider
the evidence we’ve just talked about and the court’s instructions.”

   The Verdict

   In its verdict, the jury found that Decedent was a member of the Engle
class by virtue of its finding that Decedent was addicted to cigarettes
containing nicotine and that such addiction was the legal cause of his lung
cancer. It also found that smoking cigarettes manufactured by PM was a
legal cause of Decedent’s lung cancer. However, the jury found that lung
cancer was not a legal cause of Decedent’s death. Accordingly, the jury
did not award any wrongful death damages. It did, however, find in favor
of Plaintiff on her alternative survival and loss of consortium claims and
awarded Plaintiff $175,000 for Decedent’s pain and suffering and
$175,000 for Plaintiff’s loss of consortium.



                                     5
    The jury found in favor of PM on both of Plaintiff’s intentional tort
claims, finding that Decedent did not reasonably rely to his detriment on
any statement made by PM which concealed or omitted material
information not already known or available to him and that, likewise,
Decedent did not reasonably rely to his detriment on any statement made
in furtherance of PM’s agreement with other tobacco companies to conceal
or omit material information. Based on the jury’s intentional tort findings,
the matter did not proceed to the punitive phase. This appeal and cross-
appeal follows.

                                     Analysis

   On Direct Appeal

   PM argues that the court erred in denying its statute of limitations
based motion for directed verdict on Plaintiff’s loss of consortium claim.
Plaintiff counters that the court ruled correctly because she, individually,
is an Engle class member and, in the alternative, her loss of consortium
claim was timely because it was “intertwined” with the survival claim she
brought on behalf of Decedent. We hold that Plaintiff’s claim was time
barred.

    Our analysis on this issue necessarily begins with some procedural
background on the Engle class. The now-voluminous Engle litigation
commenced on May 5, 1994, when a group of smokers filed a class action
lawsuit against numerous tobacco industry organizations and cigarette
companies, including PM, seeking damages for smoking-related illnesses
and deaths. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 693 (Fla.
2015). On November 21, 1996, the trial court recertified the Engle class
as the more than 700,000 Florida “citizens and residents, and their
survivors, who have suffered, presently suffer or who have died from
diseases and medical conditions caused by their addiction to cigarettes
that contain nicotine.” Engle, 945 So. 2d at 1274, 1258. The Florida
Supreme Court later confirmed that the class recertification date was the
class membership cut-off date. Id. at 1275. Based on the foregoing, the
filing of the Engle lawsuit tolled the statute of limitations for Engle class
member causes of action accruing no earlier than May 5, 1990 (four years
before the filing date) and no later than November 21, 1996 (the class
recertification and membership cut-off date). See R.J. Reynolds Tobacco
Co. v. Ciccone, 190 So. 3d 1028, 1042 (Fla. 2016) (Polston, J., dissenting)
(explaining the effects of the filing and membership cut-off dates).

   The Engle class action jury went on to find the tobacco defendants liable
for the class’ injuries and in doing so, made a myriad of “common core”

                                     6
findings regarding the health effects of smoking cigarettes, the addictive
properties of nicotine, and the tobacco companies’ actions. Engle, 945 So.
2d at 1257 n.4. After prolonged litigation regarding the propriety of
continued class action treatment, on December 21, 2006, the Florida
Supreme Court decertified the class and vacated the class action jury’s
punitive damages award. Id. at 1254. However, the court “did not
decertify the class in the traditional sense, but conferred upon the class
members two benefits: (1) each class member’s time to file an individual
suit would be equitably tolled to allow filing within one year of the court’s
decision, and (2) in the individual action, the Engle jury’s common core
findings in Phase I would be given res judicata effect.” Ciccone, 190 So.
3d at 1037 (internal quotation marks and citations omitted). Based on
this decision, persons meeting the Engle class member definition could file
lawsuits as late as December 21, 2007, for causes of action which accrued
between May 5, 1990, and November 21, 1996. Id. at 1042

   This Court has previously rejected the notion that a surviving spouse
of a smoker is an Engle class member in his or her individual right. In
Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209, 1210−11 (Fla. 4th
DCA 2017), the surviving spouse of a deceased smoker sued a tobacco
company under the Florida Wrongful Death Act.             Because it was
undisputed that the deceased smoker knew he had a smoking related
injury before May 5, 1990, the statute of limitations bar date for Engle
class membership, the tobacco company moved for and was granted
summary judgment. Id. The surviving spouse appealed, arguing, just as
Plaintiff does here, that she met the definition of an Engle class member
because she was a survivor of a Florida resident who died from a smoking
related disease. Id. Since the deceased smoker did not die until 1993 and
the statute of limitations on a wrongful death claim is two years, the
surviving spouse maintained that the statute of limitations on her
wrongful death claim did not begin to run, much less expire, before the
May 5, 1990 bar date. Id.

    We rejected the surviving spouse’s class membership argument. Id.
Reasoning that “[t]he determination of membership in the Engle class has
always focused on the smoker, not on the survivors,” we concluded that
“[t]he term ‘survivors’ in the class definition is best interpreted as including
survivors of addicted smokers who were Engle class members.” Id. at
1211−12 (emphasis added). This holding establishes that smokers whose
claims accrued during the May 5, 1990−November 21, 1996, Engle window
are the only potential Engle class members and that any survivor filing
suit via Engle must establish the smoker’s class membership as to each
claim. Id. In line with our decision in Fanali, we now conclude that
Plaintiff, a survivor of a smoker who suffered from a smoking-related

                                       7
disease, is not an Engle class member for purposes of her own individual
claims. Id. at 1212. Although not binding, it is worth noting that federal
courts considering Engle cases have reached the same conclusion. See,
e.g., Elkins v. R.J. Reynolds Tobacco Co., 65 F. Supp. 3d 1333, 1338 (M.D.
Fla. 2014) (affirming that “spouses asserting loss of consortium claims are
not Engle plaintiffs for purposes of entitlement to Engle tolling”).

    Having determined that Plaintiff is not entitled to the tolling benefit of
Engle class membership for purposes of claims brought in her individual
right, we must next consider whether her loss of consortium claim was a
separate and distinct cause of action belonging to Plaintiff individually or
merely an additional remedy available for the survival claim Plaintiff
brought on Decedent’s behalf. If it was nothing more than an additional
remedy which could be sought based on the timely pled survival action,
then it appears that the claim was not barred by the statute of limitations.
Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1229 (Fla. 2016)
(holding that Engle class members’ requests for punitive damages in
conjunction with negligence and strict liability claims were not barred by
the statute of limitations because, although such requests were not made
in Engle, they were not subject to a separate statute of limitations as “a
claim for punitive damages is not a separate, free-standing cause of action
subject to a separate statute of limitations, but is rather a remedy that can
be sought based on any properly pled cause of action”). However, if it was
a free-standing cause of action unique to Plaintiff, then it was subject to a
separate statute of limitations.

   Under the common law, a plaintiff may recover damages for the loss of
consortium due to his or her spouse’s injury caused by the negligence of
another. Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971). Consortium has
been defined as:

      [T]he companionship and fellowship of husband and wife and
      the right of each to the company, cooperation and aid of the
      other in every conjugal relation. Consortium means much
      more than mere sexual relation and consists, also, of that
      affection, solace, comfort, companionship, conjugal life,
      fellowship, society and assistance so necessary to a successful
      marriage.

Id.

   Loss of consortium claims, while derivative causes of action based on
the injury of the claimant’s spouse, are nevertheless separate and distinct
causes of actions belonging solely to the claimant. See Metro. Dade Cty. v.

                                      8
Reyes, 688 So. 2d 311, 312 (Fla. 1996); Busby v. Winn & Lovett Miami,
Inc., 80 So. 2d 675, 676 (Fla. 1955); Randall v. Walt Disney World Co., 140
So. 3d 1118, 1121 (Fla. 5th DCA 2014). Accordingly, as loss of consortium
claims are separate causes of action, they must be “timely” in their own
right. See Gates, 247 So. 2d at 45 (“Where there is a cause of action
brought by the injured husband pending, the wife’s consortium action, if
not time barred, may be joined with her husband’s claim . . . .” (emphasis
added)). Here, the statute of limitations on Plaintiff’s loss of consortium
claim began to run in 1992, fifteen years before Plaintiff filed her lawsuit.
Plaintiff’s loss of consortium claim was well out of range of any statute of
limitations recognized in Florida and was, therefore, time barred.

   Further, we are not persuaded that Plaintiff’s loss of consortium claim
was an additional remedy of the survivorship claim by analogy to the
Florida Wrongful Death Act. While it is true that the Florida Wrongful
Death Act allows for a surviving spouse to “recover for loss of the
decedent’s companionship and protection and for mental pain and
suffering” when a person dies as the result of a personal injury, this
remedy is a creature of statute. § 768.21(2), Fla. Stat. (2007); see also
Nissan Motor Co. v. Phlieger, 508 So. 2d 713, 714 (Fla. 1987) (“Florida’s
Wrongful Death Act does create a right of action in favor of statutory
beneficiaries which was not recognized at common law.”). There is simply
nothing in the common law automatically allowing for this remedy in a
personal injury claim brought by the injured party. Rather, as discussed
above, the spouse seeking consortium damages must bring a claim in his
or her own right and prove that the injury affected his or her marriage to
the injured party. See Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d
840, 842 (Fla. 2d DCA 2011) (“When a jury finds that one spouse has
sustained injuries as a result of the negligence of a third party, an award
of damages to the other spouse for loss of consortium is not automatic.
Instead, in order to prevail on a claim for loss of consortium, the claiming
spouse must present competent testimony concerning the impact that the
incident has had on the marital relationship.”).

   We note that although loss of consortium claims are subject to a
separate statute of limitations, there is some ambiguity concerning
whether an otherwise time barred loss of consortium claim could relate
back to the injured spouse’s timely filed personal injury claim. The
applicable Rule of Civil Procedure governing the relation-back of
amendments provides, in pertinent part, that “[w]hen the claim or defense
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original pleading,
the amendment shall relate back to the date of the original pleading.” Fla.
R. Civ. P. 1.190(c). Until very recently, case law interpreting this rule

                                      9
established that newly added loss of consortium claims do not relate back
to a timely pled personal injury action. W. Volusia Hosp. Auth. v. Jones,
668 So. 2d 635, 636 (Fla. 5th DCA 1996) (holding that an untimely loss of
consortium claim does not relate back to the date of the injured spouse’s
timely suit); Daniels v. Weiss, 385 So. 2d 661, 663 (Fla. 3d DCA 1980)
(same). Recently, the Florida Supreme Court disapproved of these cases
to the extent that that they stood for the proposition that amended
complaints which assert new and distinct causes of action can never relate
back to the date of original filing. Kopel v. Kopel, 42 Fla. L. Weekly S26,
S29 (Fla. Jan. 26, 2017).

    Although Kopel raises a question as to whether a newly asserted loss of
consortium claim is deemed to arise out of the same conduct, transaction,
or occurrence as the personal injury claim from which it derives, we do not
believe that Kopel mandates the conclusion that a spouse’s untimely loss
of consortium claim relates back to the date of the other spouse’s timely
filed personal injury suit. Indeed, the Kopel court expressly provided that
it was not “passing judgment as to the correctness” of the ultimate
conclusions reached in West Volusia Hospital Authority or Daniels, but was
instead holding that it is possible for a new claim to relate back. Id. at S27
n.4.

   Further, in addition to holding that the loss of consortium claims did
not relate back because they were separate and distinct from the injured
spouses’ causes of action, the West Volusia Hospital Authority and Daniels
courts also held that the claims did not relate back because they brought
a new party to the lawsuit. W. Volusia Hosp. Auth., 668 So. 2d at 636;
Daniels, 385 So. 2d at 663. Kopel did not disturb this conclusion, and
neither will we. Generally speaking, the relation-back doctrine does not
apply when an amendment seeks to add an entirely new party to the
action. See Roback v. Cassaro, 837 So. 2d 1061, 1062 (Fla. 4th DCA
2003). However, courts have recognized an exception to this rule where
the new party is sufficiently related to an original party to the extent that
amendment would not cause any prejudice. Id. at 1063; Russ v. Williams,
159 So. 3d 408, 410 (Fla. 1st DCA 2015). Married individuals are not
deemed “sufficiently related” by virtue of their marriage alone. Russ, 159
So. 3d at 411 (affirming that amendment to change defendant in tort suit
from husband to wife did not relate back because spouses are “separate
individuals” and “each spouse has his or her own legal rights and
obligations”). Further, it cannot be said that allowing the untimely
addition of an injured party’s spouse as a plaintiff does not cause any
prejudice as it exposes the defendant to additional lability. To that end,
because a loss of consortium claim belongs to a separate plaintiff, it is our
view that loss of consortium claims which are otherwise time barred do

                                     10
not relate back to the date of the injured spouse’s otherwise timely filed
lawsuit.

   In sum, we conclude that Plaintiff’s loss of consortium claim was a
separate and free-standing claim belonging to her individually and that
Plaintiff cannot be considered an Engle class member for purposes of her
individual claims. Therefore, the filing of Engle had no tolling effect on the
applicable statute of limitations. Because Plaintiff did not file her lawsuit
until fifteen years after the statute of limitations began to run and her
claim does not relate back to the timely filed survival claim, Plaintiff’s loss
of consortium claim was time barred. Accordingly we conclude that the
court erred in denying PM’s motion for directed verdict on the issue.

      On Cross-Appeal

   On cross-appeal, Plaintiff takes issue with the court’s instructions on
her fraud by concealment and conspiracy counts as well as its decision to
instruct the jury on the legal effects of cigarette warning labels. A trial
court’s decision to give or refuse to give a proposed jury instruction is
reviewed for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Jewett,
106 So. 3d 465, 467 (Fla. 1st DCA 2013). A trial court abuses its discretion
when it gives an instruction that is “‘reasonably calculated to confuse or
mislead’” the jury, resulting in a miscarriage of justice. Goldschmidt v.
Holman, 571 So. 2d 422, 425 (Fla. 1990) (quoting Fla. Power & Light Co.
v. McCollum, 140 So. 2d 569, 569 (Fla. 1962)). Further, “[a] trial court
abuses its discretion when it fails to give a proposed instruction that is (1)
an accurate statement of the law, (2) supported by the facts of the case,
and (3) necessary for the jury to properly resolve the issues, so long as the
subject of the proposed instruction is not covered in other instructions
given to the jury and the failure to instruct is shown to be prejudicial.”
Jewett, 106 So. 3d at 467.

     a) The Fraud-Based Instructions

    Plaintiff argues that the court erred when it instructed the jury on her
claims for fraud by concealment and conspiracy because it asked the jury
to find whether Decedent detrimentally relied on a “statement that was
misleading to Decedent because it concealed or omitted a material fact”
instead of asking the jury to find whether Decedent relied on PM’s
“concealment of material information.” Plaintiff maintains that these
instructions did not accurately reflect the law because fraudulent
concealment may occur by omission. PM counters that an omission by
itself cannot serve as the basis for fraudulent concealment absent some
sort of special relationship giving rise to a fiduciary duty. Alternatively,

                                      11
PM argues that the instruction given was warranted based on the facts of
the case. Plaintiff is correct that reliance on a statement is not a
requirement, however, we hold that the instruction as given was
nonetheless proper based on the individual facts of the case.

   In R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 766 (Fla. 4th
DCA 2016), this Court considered the propriety of a jury instruction on a
smoker’s fraudulent concealment claim and held that it did not pass legal
muster because it failed to instruct the jury that detrimental reliance was
necessary. In doing so, we wrote:

      “[I]n a post-Engle case, a plaintiff alleging fraudulent
      concealment need only prove that he or she detrimentally
      relied    upon     the   defendant     tobacco    corporation’s
      misinformation.” [Philip Morris USA, Inc. v. Kayton, 104 So. 3d
      1145, 1150 (Fla. 4th DCA 2013}] (emphasis added).
      “Similarly, a plaintiff claiming conspiracy to commit
      fraudulent concealment in an Engle progeny case need only
      prove that he or she detrimentally relied upon deceptive
      statements made by a member of the conspiracy.” Id.
      (emphasis added). The instruction need not include reliance
      on “a statement” unless the facts of the case warrant it. What
      is necessary is that an instruction properly tailored to the
      facts of the case apprise the jury of the essential element of
      “reliance” in a fraudulent concealment claim.

Id. (emphasis added).

    The above language establishes that in an Engle case, a fraudulent
concealment claim need not be limited to reliance on a “statement,” but,
at the same time, also establishes that an instruction referencing reliance
on “a statement” is not incorrect as a matter of law. Id. The Second
District Court has since considered this issue and, after a thorough
discussion, rejected the notion that an Engle fraudulent concealment
claim must be limited to reliance on a “statement.” Philip Morris USA, Inc.
v. Duignan, 42 Fla L. Weekly D2427, D2430−32 (Fla. 2d DCA Nov. 15,
2017). Instead, in line with Calloway, it concluded that “whether an
instruction that a jury must find reliance on a ‘statement’ is necessary or
proper will depend on the nature of the claims presented and the evidence
at trial.” Id. at D2431.

   In the instant case, Plaintiff testified as to specific advertising
statements which she claimed Decedent detrimentally relied upon in
formulating his belief that smoking filtered cigarettes was safe.

                                    12
Accordingly, because there was evidence presented at the trial regarding
Decedent’s reliance on “statements,” the instruction was not improper.

     b) The Warning Label Instruction

   Plaintiff also takes issue with the court’s decision to provide an
instruction on the effect of cigarette warning labels, arguing that the
instruction was inapplicable to Plaintiff’s suit as she did not bring a failure
to warn claim. She further maintains that, especially when combined with
PM’s counsel’s closing argument, the instruction led the jury to believe
that PM could not be liable for any fraudulent concealment effectuated
through advertising. PM counters that there was no error as the
challenged instruction was an accurate statement of law and was
necessary to ensure that the jury knew it “could not impose liability based
on a legally impermissible theory—that [the tobacco companies] should
have placed additional or different warnings on cigarette packages or in
advertisements.” Although the propriety of a warning label instruction in
Engle cases appears to be an issue of first impression, based on the case
law discussing the preemptive effect (or lack thereof) of cigarette warning
labels on Engle-type claims, we conclude that the instruction as worded
did not serve any purpose other than to confuse the jury and was,
therefore, improper.

   The language of the instruction at issue was based on the Federal
Cigarette Labeling and Advertising Act (“Labeling Act”), which was enacted
by Congress “in 1965 in response to the Surgeon General’s determination
that cigarette smoking is harmful to health.” Altria Grp., Inc. v. Good, 555
U.S. 70, 77 (2008) (footnote omitted). To that end, the Labeling Act
“required that every package of cigarettes sold in the United States contain
a conspicuous warning, and it pre-empted state-law positive enactments
that added to the federally prescribed warning.” Id. (citing 15 U.S.C. §
1331). “The Labeling Act has since been amended further to require
cigarette manufacturers to include four more explicit warnings in their
packaging and advertisements on a rotating basis.” Id. at 78 (footnote
omitted).

   In Engle, the Florida Supreme Court did not expressly address whether
the class’ state law tort claims were preempted by the Labeling Act.
However, addressing the propriety of a closing argument, the court wrote
that “[a]lthough compliance with the federal warnings preempted any
claim based on failure to warn, it did not eliminate the other causes of
action that the jury had to consider in Phase I.” Engle, 945 So. 2d at 1273
(emphasis added). Despite this dicta, the tobacco companies have
continuously argued that Engle plaintiffs’ claims are pre-empted by the

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Labeling Act. Recently, the Florida Supreme Court revisited the issue and
definitively held that Engle plaintiffs’ strict liability and negligence claims
are not preempted by the Labeling Act. R.J. Reynolds Tobacco Co. v.
Marotta, 214 So. 3d 590, 605 (Fla. 2017).

   In Marotta, the court reasoned that “the record in Engle reflects that
the claims were grounded in allegations that Engle defendants deliberately
manufactured their products to increase the likelihood of addiction,
despite defendants’ knowledge of the hazards of nicotine, and that Engle
plaintiffs suffered disease and death as a result of their inability to quit.”
Id. Based on the foregoing, it concluded that preemption was not a valid
defense to the afore-outlined claims because “[f]ederal tobacco regulations
have not explicitly allowed the type of conduct underlying Engle claims,
namely, the intentional manipulation of nicotine levels.” Id. at 604−05.
The Marotta court did not address the effect of the Labeling Act on
fraudulent concealment and conspiracy to commit fraudulent
concealment causes of action, but this is because the issue has already
been squarely addressed by the United States Supreme Court.

   In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527 (1992), the Court
considered whether a smoker’s state law fraudulent misrepresentation
and conspiracy to misrepresent or conceal material facts claims were
preempted by the Labeling Act. To the extent that the smoker’s fraudulent
misrepresentation claim was based on the theory that, “through their
advertising, [the tobacco companies] neutralized the effect of federally
mandated warning labels,” the plurality 3 held that the claims were
preempted. Id. However, to the extent the claims were predicated on a
“state-law duty not to not make false statements of material fact or to
conceal such facts,” the plurality held that the fraudulent
misrepresentation and conspiracy claims were not preempted by the
Labeling Act. Id. at 528, 530. As such, Cipollone established that a
smoker’s “claim based on allegedly fraudulent statements made in [the
tobacco companies’] advertisements is not pre-empted by [the Labeling
Act].” Id. at 529.

   The Court revisited the issue of preemption and fraud based claims
against tobacco companies again in Altria. 555 U.S. at 76−87. There, a
smoker alleged that a tobacco company violated the Maine Unfair Trade
Practices Act by fraudulently conveying through its advertising that “light”
cigarettes delivered less tar and nicotine than regular brands despite its
knowledge to the contrary. Id. at 72−73. The tobacco company argued

3The plurality was comprised of Chief Justice Rehnquist and Justices White,
O’Conner, and Stevens.

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that the claim was preempted because it was “more analogous to the
‘warning neutralization’ claim found to be pre-empted in Cipollone” as it
was based “on statements that ‘might create a false impression’ rather
than statements that are ‘inherently false.’” Id. at 81-82. The Court
outright rejected the tobacco company’s claim, clarifying that the “warning
neutralization” claim found to be pre-empted by Cipollone was really a
failure to warn claim mislabeled as a fraudulent misrepresentation claim.
Id. at 82. It further clarified that “[n]othing in the Labeling Act’s text or
purpose or in the plurality opinion in Cipollone suggests that whether a
claim is pre-empted turns in any way on the distinction between
misleading and inherently false statements.” Id. It then concluded that:

      [I]t is clear that our holding in Cipollone that the common-law
      fraud claim was not pre-empted is directly applicable to the
      statutory claim at issue in this case. As was true of the claim
      in Cipollone, respondents’ claim that the deceptive statements
      “light” and “lowered tar and nicotine” induced them to
      purchase petitioners’ product alleges a breach of the duty not
      to deceive. To be sure, the presence of the federally mandated
      warnings may bear on the materiality of petitioners’ allegedly
      fraudulent statements, “but that possibility does not change
      [respondents’] case from one about the statements into one
      about the warnings.”

Id. at 82−83 (citation and footnote omitted).

    Based on the foregoing precedent, it is plain that a warning label
instruction has no impact on Engle based negligence or strict liability
claims and, likewise, has no bearing on a smoker’s claims that the tobacco
companies fraudulently concealed material facts regarding the health
effects of their cigarettes (both in their advertising and to regulatory
authorities) and conspired to make these concealments. See Altria, 555
U.S. at 82−83; Cipollone, 504 U.S. at 529−30; Marotta, 214 So. 3d at 605.
These were the only theories of liability Plaintiff asserted.

   Despite the fact that Plaintiff did not assert a warning claim and her
remaining claims were not pre-empted by the Labeling Act, PM insists that
the instruction was nonetheless necessary to resolve the issues in the
case. PM points to the following evidence as necessitating the instruction:
1) during Plaintiff’s testimony, the jury asked Plaintiff whether there was
adequate information about the risks of smoking “with the Surgeon
General Report, warning labels on cigarette packs, and various public
service announcements” to which Plaintiff responded that “with all the
warnings it—it wasn’t enough to overcome all the advertisements about

                                     15
smoking being safer if you smoked filtered cigarettes,” and 2) one of
Plaintiff’s experts testified that PM concealed that it knew smokers were
getting more tar and nicotine from filtered cigarettes. Based on the
foregoing, PM maintains that “the jury would have been left with the
impression that it could impose liability based on a legally impermissible
theory [that] the Defendants should have placed additional or different
warnings on cigarette packages or in advertising.”

   PM’s argument is flawed in the same way that the tobacco company’s
argument in Altria was flawed. 555 U.S. at 82−83. Plaintiff’s evidence
establishing that the fraudulent concealments and misrepresentations
contained in advertising induced Decedent to purchase cigarettes despite
the warnings had nothing to do with the adequacy of the warnings, but
rather, as explained by the Altria court, went to the materiality of the fraud.
Id. Accordingly, despite PM’s best attempts to argue otherwise, nothing
about this evidence somehow changed the case from one about the
fraudulent statements to one about the warnings.

    At any rate, to the extent the instruction had any bearing on the facts
of the case, the possibility that it confused the jury is exceedingly high,
especially considering the fact that the jury found for PM on Plaintiff’s
intentional tort claims. The instruction stated that based on the cigarette
warning labels, “cigarette advertising after July 1, 1969 cannot be the
subject of any claim that the advertising undermined or neutralized the
warnings or made them less effective.” As Plaintiff compellingly argues,
“most reasonable jurors (and even most lawyers) would misunderstand
this language to mean that tobacco companies can have no liability for any
statements in their advertising that are contrary to the mandated health
warnings.” Indeed, this is exactly how PM’s counsel explained the
instruction in its closing argument. As discussed above, this is absolutely
not true—PM could still be liable for fraudulent statements contained in
its advertising despite the presence of a contrary warning label.

    Our holding should not be interpreted as absolutely foreclosing the use
of a warning label instruction in an Engle case. As indicated in Altria, the
presence of warning labels on cigarette packs may go to the materiality of
the tobacco companies’ misrepresentations, or, put otherwise, to the issue
of the smoker’s detrimental reliance on the statements. Id. at 83. The
instruction provided by the court here, however, simply did not explain
these subtle, but critical, nuances.

   In sum, we conclude that the warning label instruction was improperly
given in this case. Accordingly, we are compelled to reverse and remand
for a new trial. As outlined in the direct appeal analysis section, on

                                      16
remand, the court should enter judgment in favor of PM on Plaintiff’s
individual loss of consortium claim.

  Reversed and remanded with instructions.

CONNER and FORST, JJ., concur.

                         *        *          *

  Not final until disposition of timely filed motion for rehearing.




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