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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 15-13160 ____________________
DONNA BROWN, Plaintiff-Appellee, versus R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, et al.,
Defendants,
PHILIP MORRIS USA, INC., USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 2 of 24
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Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:09-cv-10687-WGY-HTS ____________________
Before JORDAN, TJOFLAT, Circuit Judges, and BEAVERSTOCK,* Chief District Judge. TJOFLAT, Circuit Judge: In this Engle-progeny 1 case, Donna Brown, a lifelong smoker, sued Philip Morris USA, Inc.,2 seeking damages for the in- juries she sustained as a result of smoking Philip Morris’s cigarettes, specifically her development of peripheral vascular disease
* The Honorable Jeffrey U. Beaverstock, United States District Judge for the Southern District of Alabama, sitting by designation. 1 Engle v. Liggett Grp., Inc. (Engle III), 945 So. 2d 1246 (Fla. 2006). 2 Brown initially sued Philip Morris, R.J. Reynolds Tobacco Company, and Lorillard Tobacco Company, in a six-count complaint alleging negligence, strict liability, fraudulent concealment, conspiracy to fraudulently conceal, breach of express warranty, and breach of implied warranty. The parties stip- ulated to the dismissal of the warranty claims prior to trial. And Brown and both R.J. Reynolds and Lorillard eventually jointly moved to dismiss the claims against R.J. Reynolds and Lorillard with prejudice, which were granted. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 3 of 24
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(“PVD”), a debilitating disease which eventually required the am- putation of both of her legs, among other injuries. A jury returned verdicts against Philip Morris for Brown’s claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudu- lently conceal, and awarded Brown $8,287,448 in compensatory damages and $9 million in punitive damages. This appeal turns on whether Brown presented sufficient ev- idence of her fraud claims. Philip Morris appeals the District Court’s denial of its renewed motion for judgment as a matter of law on the fraud claims, arguing that Brown presented insufficient evidence to show that she relied to her detriment on statements made by Philip Morris that concealed material information about the health effects or addictive nature of smoking, or that such reli- ance was a legal cause of her smoking-related disease. Brown de- fends the District Court’s ruling, and the jury’s verdicts, on the ground that, although Florida law now requires her to show that she relied on a particular false statement made by Philip Morris, she presented sufficient evidence of Philip Morris’s pervasive disinfor- mation campaign and that she harbored a misapprehension about the health effects and/or addictive nature of smoking, such that a jury can infer her reliance. Although in the past, Florida District Courts of Appeal rou- tinely held that evidence of a pervasive disinformation campaign and a plaintiff’s subsequent misapprehensions were sufficient to show detrimental reliance, the Florida Supreme Court rejected this approach earlier this year. Prentice v. R.J. Reynolds Tobacco Co., USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 4 of 24
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No. SC20-291, 2022 WL 805951, at *6–8 (Fla. 2022). In so ruling, the Florida Supreme Court held that Engle-progeny plaintiffs bringing a fraudulent concealment or conspiracy to fraudulently conceal claim must prove reliance on one or more specific state- ments by an Engle defendant and that the statement or statements on which the plaintiff relied were false or misleading. Accordingly, because Brown relies solely on the evidence of Philip Morris’s dis- information campaign to establish her claims, we set aside Brown’s jury verdicts for fraudulent concealment and conspiracy to fraudu- lently conceal due to insufficient evidence. However, we affirm Brown’s jury verdicts for her negligence and strict liability claims, and remand the case with the instruction that the District Court reduce Brown’s damages by her comparative fault as the jury found in its verdicts. I.
A.
This lawsuit is one of thousands of progeny suits filed in the wake of the Florida Supreme Court’s decision in Engle v. Liggett Group., Inc. (Engle III), 945 So. 2d 1246 (Fla. 2006). We have pre- viously explored the history of the Engle litigation in depth, and so we describe that procedural history only briefly here. 3 In 1994, Florida smokers and their survivors filed a class action against
3 For a detailed account of the history of this litigation, see Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1174–81 (11th Cir. 2017) (en banc). USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 5 of 24
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several major domestic cigarette companies, including Philip Mor- ris, seeking compensatory and punitive damages for their smoking- related injuries. Engle III, 945 So. 2d at 1256. They alleged several claims against the tobacco company defendants, including strict li- ability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. The Engle litigation proceeded in three phases. Phase I fo- cused on common issues of liability “relating exclusively to the de- fendants’ conduct and the general health effects of smoking.” Id. The jury rendered a verdict in favor of the plaintiff class on all counts. Id. at 1256–57. Relevant here, the “Phase I findings” in- cluded: (1) that smoking cigarettes causes certain diseases, includ- ing PVD; (2) that nicotine in cigarettes is addictive; (3) that the to- bacco companies placed cigarettes on the market that were defec- tive and unreasonably dangerous; (4) that the defendants concealed or omitted material information, not otherwise known or availa- ble, knowing that the material was false or misleading, or failed to disclose a material fact concerning the health effects and/or addic- tive nature of smoking cigarettes; (5) that the defendants agreed to conceal or omit information regarding the health effects or addic- tive nature of smoking cigarettes with the intention that smokers and the public would rely to their detriment; (6) that all of the de- fendants sold or supplied cigarettes that were defective; (7) that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by the defendants, and (8) that all of the defendants were negligent. Id. at USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 6 of 24
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1257 n.4, 1276–77. In Phase II, the same jury determined that the tobacco companies were liable to the named class representatives; it awarded compensatory damages to the named plaintiffs and pu- nitive damages to the class as a whole. Id. at 1257. In Phase III, new juries were to decide specific issues of individual liability and damages for the other class members. Id. at 1258. On discretionary review of the judgments in Phase I and Phase II, 4 the Florida Supreme Court upheld the class certification with respect to Phases I and II but decertified the class with respect to Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate.” Id. at 1268. The Court retained the Phase I findings outlined above, and provided that those findings would have res judicata effect in future proceed- ings brought by the Engle class members.5 We later recognized that the Florida Supreme Court’s Engle decision gave the Phase I findings preclusive effect in federal court under the Full Faith and
4 The Court in Engle III had jurisdiction because the decision of the Third District Court of Appeal conflicted with one of its prior opinions. See Fla. Const. art. V, § 3(b)(3) (noting that the Florida Supreme Court “[m]ay review any decision of a district court of appeal that . . . expressly and directly conflicts with a decision of . . . the supreme court on the same question of law”). 5 The Florida Supreme Court declined to give preclusive effect to the other Phase I jury’s findings, which we omitted above, on the Engle plaintiffs’ fraud and misrepresentation, conspiracy to misrepresent, and intentional infliction of emotional distress claims because they “involved highly individualized de- terminations.” Engle III, 945 So. 2d at 1269. The Court also nullified the pu- nitive damages award as prematurely granted. Id. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 7 of 24
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Credit Act, 28 U.S.C. § 1738. See Burkhart v. R.J. Reynolds To- bacco Co., 884 F.3d 1068, 1091–93 (11th Cir. 2018) (recognizing pre- clusive effect of the Phase I findings on fraudulent concealment and conspiracy to fraudulently conceal); Graham, 857 F.3d at 1186 (rec- ognizing preclusive effect of the Phase I findings on negligence and strict liability). 6 Moving forward, Engle class members could initiate individ- ual damages actions against the Engle defendants and the Phase I findings would have res judicata effect in those trials. Engle III, 945
6 As a result of the Phase I Engle findings, duty and breach for certain causes of action, including negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal, are conclusively presumed for plaintiffs who show that they are class members. See Burkhart, 884 F.3d at 1082, 91– 93; Graham, 857 F.3d at 1175. Plaintiffs must still demonstrate causation and damages—and questions have remained over how Engle-progeny plaintiffs could prove causation. See Burkhart, 884 F.3d at 1082; Graham, 857 F.3d at 1175. In Graham, we gave preclusive effect to the Engle findings on negli- gence and strict liability that established duty and breach for those causes of action, even though those findings did not establish what components of the defendants’ cigarettes were negligently produced or defective or unreasonably dangerous. Graham, 857 F.3d at 1186. What that meant, under Florida law, is that a plaintiff need only prove that an addiction to an Engle defendant’s cigarettes was the legal cause of the plaintiff’s health problems, as well as prov- ing the resulting damages. So, an Engle-progeny plaintiff need not establish that a specific breach of duty—that is, any negligently produced or unreason- ably dangerous aspect of the cigarettes—caused their harm. As our discussion infra shows, the Florida Supreme Court in Prentice took a different tack with respect to the fraudulent concealment and conspiracy to fraudulently conceal claims, where it required that plaintiffs show that a specific breach of duty— that is, a false or misleading statement—caused their harm. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 8 of 24
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So. 2d at 1269. 7 With those findings established as a matter of law, the Engle-progeny trials would center on issues of individual cau- sation, comparative fault, and damages. B.
Brown filed this Engle-progeny suit against Philip Morris in 2007, seeking compensatory and punitive damages related to her development of PVD after decades of smoking cigarettes manufac- tured by Philip Morris. She alleged she was a member of the Engle class because she was addicted to smoking cigarettes and that ad- diction was a legal cause of her PVD, and she sought recovery for her injuries—including multiple surgeries and eventually the am- putation of both her legs, which left her severely debilitated and unable to work—under theories of strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. A six-day jury trial on all four claims commenced in January 2015. i. Brown began smoking cigarettes when she was fifteen years old. Although she never intended to become a lifelong smoker, by age seventeen she was smoking regularly. In her testimony at trial, Brown explained that when she began smoking, she did not know
7 As noted in note 5 supra, the Florida Supreme Court in Engle III threw out the findings as to claims of fraud and misrepresentation, conspiracy to misrep- resent, and intentional infliction of emotional distress, but retained the find- ings as to claims of fraudulent concealment and conspiracy to fraudulently conceal. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 9 of 24
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or understand that cigarettes could cause life-threatening diseases like PVD or that they were addictive. And she testified that her understanding of the dangers of cigarettes now is “very different” from what she understood when she first started. It took Brown many years and multiple attempts before she was finally able to quit smoking in June 2014. When Brown first started smoking with her friends in high school, her cigarette of choice was the Marlboro brand produced by Philip Morris. She testified that she began smoking Marlboro cigarettes “[b]ecause that was the brand that everybody was buy- ing” and because she liked it. Additionally, she cited the Marlboro Man advertisements as a reason she chose Marlboro cigarettes: Q. And why did you choose Marlboros?
A. Because it was the thing to buy and I liked it.
Q. Your friends, is that what your friends were smoking?
A. Yes.
Q. When you say it was the thing to buy, does that mean because that’s what the other kids were smoking or some other reason?
A. That and ads, you know.
Q. What kind of ads?
A. Marlboro man. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 10 of 24
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Q. Okay. You remember seeing Marlboro adver- tisements your senior year of high school?
A. Yeah.
...
Q. Okay. And what about the Marlboro ads made you think -- made you feel that Marlboros were the in thing to smoke?
A. I said I don’t know. It’s the Marlboro man and the packaging. I don’t know.
Q. What about the packaging?
A. The red and white and -- I don’t know, I really can’t tell you.
Q. Okay. Anything else about Marlboro packag- ing you remember other than it was red and white?
A. No.
Q. Anything else about Marlboro advertising you remember other than there was the Marlboro man?
Q. What else?
A. I mean -- USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 11 of 24
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Q. What else do you remember other than there was a Marlboro man in the Marlboro advertisements?
A. He had a saddle, I think it was, he was sitting on or something, leaning against, I don’t know, some- thing like that.
Q. Anything else?
A. Not really.
She also recalled being exposed to other cigarette advertise- ments as she was growing up: Q. Do you remember whether there were any cigarette advertisements --
Q. -- going on when you were growing up?
Q. Do you remember any of the advertisements that you saw growing up?
A. Yeah, the guy with the hat. I can’t think of his name now. Dadgum it, I can’t think of his name.
Q. Can’t think of his name. Was he -- how would you describing [sic] him?
A. He had a hat. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 12 of 24
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Q. Had a hat?
A. Hat on his head, Chester --
Q. Was [sic] Marlboro man mean anything to you?
A. Marlboro man, yeah. And also there was that other guy that had -- he had a hat, but he was -- I can’t think of his name.
Q. Was he with the Philip Morris company?
A. Yes. Yes.
Q. Okay. And this was something that you saw personally when you were growing up?
A. Yeah, I saw it on billboards.
In addition to testimony about her personal experience, Brown also presented extensive testimony about Philip Morris’s advertising and marketing campaigns. Specifically, Brown’s histor- ical expert testified that Philip Morris intentionally geared its adver- tising toward teenagers in the 1960s and 1970s because it recog- nized that teenagers were the “smokers of the future,” and that it could capitalize on peer pressure among high school students to promote its Marlboro brand. The Marlboro Man advertisements were particularly appealing to young smokers because they pre- sented an image that was quintessentially American: rugged, at- tractive, and independent. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 13 of 24
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The expert also explained that while Philip Morris continued to publicly refute the notion that smoking cigarettes was addictive and tied to serious health problems, 8 its internal documents re- vealed that the company was aware of and generally accepted the science linking cigarettes to lung cancer and other serious diseases. He testified that even in response to the Surgeon General’s warn- ing in 1964, the tobacco companies, including Philip Morris, continued to challenge the science in the public me- dia creating an artificial controversy [and] doubt as to the truth of the matter linking cigarettes to serious disease. And they continued to heavily advertise their products and market their products. None of those ads ever indicated any problem with the cigarette.
It wasn’t until 1999 that Philip Morris publicly acknowl- edged that its cigarettes are addictive and can cause disease. ii. Philip Morris’s strategy in defending against Brown’s claims for fraudulent concealment and conspiracy to fraudulently conceal was two-fold. First, Philip Morris attempted to undermine Brown’s alleged reliance on Philip Morris’s statements by arguing that Brown chose to smoke not because of anything Philip Morris had said about cigarettes, but because she liked it and because that
8 For example, in their “Frank Statement to the Cigarette Smokers,” the to- bacco companies provided strong public assurances to smokers, stating, “We believe the products we make are not injurious to health.” USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 14 of 24
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was what her friends were doing. On cross-examination, Philip Morris elicited testimony from Brown that she could not recall ever seeing a statement or advertisement from any tobacco company that represented that cigarette smoking was not harmful or not ad- dictive. Second, Philip Morris also attempted to undermine Brown’s evidence of reliance by showing that Brown was long aware of the potentially harmful effects of smoking. By 1966, around the time that Brown began smoking, every package of cigarettes sold in the United States had a federally mandated health warning on it. Be- ginning at age 18, her doctors continually advised her to quit smok- ing due to the negative health effects, and Brown testified that she believed her doctors when they told her that smoking could cause lung cancer and heart disease. Her mother and sisters also advised her to quit in the 1970s, after her mother suffered a heart problem and they decided to quit smoking. But Brown did not try to quit at that time because, as she testified, she “was hardheaded.” Brown was again advised by her doctor to quit smoking in 1992, when she was diagnosed with PVD, but even then she did not immediately try to quit, testifying that she “tried towards the end, but not in the beginning.” Consistent with this strategy of targeting the sufficiency of Brown’s evidence, at the close of her case, Philip Morris moved under Fed. R. Civ. P. 50(a) for judgment as a matter of law on Brown’s fraud claims because Brown had insufficient evidence to present those claims to the jury. Philip Morris principally argued USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 15 of 24
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that Brown failed to establish the element of detrimental reliance because she presented no evidence to show that she relied on a spe- cific statement by Philip Morris or its alleged co-conspirators and because she was sufficiently aware of the harm caused by smoking. The District Court denied the motion. iii. After six days of testimony, the case was submitted to the jury. With respect to Brown’s fraudulent concealment claim, the District Court instructed the jury that “to award damages to Ms. Brown on her claim of fraudulent concealment, you must find that she relied on the statement or statements made by the defendant, Philip Morris, about the health effects or addictive nature of smok- ing, which concealed or omitted material information.” With respect to Brown’s conspiracy claim, the District Court instructed the jury that Brown must prove that (1) “she re- lied to her detriment on an act done by the defendant or any other member of the conspiracy that agreed to conceal or omit infor- mation about the health effects of cigarettes or their addictive na- ture;” (2) “the act or acts upon which she relied was done in fur- therance of the agreement to conceal or omit material information from the group’s statement or statements regarding the health ef- fects and/or the addictive nature of cigarettes;” and (3) “the con- cealment or omission had the effect of making . . . those statement or statements false or misleading and her reliance was a legal cause of her peripheral vascular disease.” USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 16 of 24
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The jury returned verdicts in favor of Brown on all claims. It allocated 45% of the comparative fault to Brown and 55% to Philip Morris and awarded Brown $8,287,448 in compensatory damages and $9 million in punitive damages. Because Brown pre- vailed on her fraud claims, the District Court did not reduce the compensatory damages award by the percentage of comparative fault attributable to Brown. See Fla. Stat. § 768.81(4) (“This section does not apply to any action . . . based upon an intentional tort . . . .”). Post-trial, Philip Morris renewed its motion for judgment as a matter of law on Brown’s fraud claims under Fed. R. Civ. P. 50(b) and moved in the alternative for a new trial. Philip Morris again argued that Brown had failed to introduce sufficient evidence from which a reasonable jury could conclude that she relied to her det- riment on any statement or omission by Philip Morris that con- cealed information about the health risks or addictive nature of cig- arettes, and failed to show that but for such concealment, she would have avoided her injuries. Philip Morris argued that even if the Court denied the motion for judgment as a matter of law, it should grant Philip Morris a new trial because the verdict was against the great weight of the evidence. The District Court denied the motion, holding that the jury’s verdict was supported by “sufficient evidence from which a reasonable jury could conclude that Brown reasonably relied on Philip Morris to disclose the addictive nature of cigarettes and the harmful nature of smoking.” Brown v. R.J. Reynolds Tobacco Co., USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 17 of 24
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No. 3:09-CV-10687, 2015 WL 3796282, at *1 (M.D. Fla. June 18, 2015). It explained that the jury could “infer detrimental reliance from evidence that the tobacco companies engaged in ‘pervasive misleading’ advertising campaigns and created a false controversy with the intent to create doubt about the harmful effects of smok- ing,” and that Brown “presented overwhelming evidence that Philip Morris intentionally and calculatedly geared its advertising to attract and hook teenagers to smoking its brand while hiding the addictive nature of its cigarettes.” Id. The District Court further found that the evidence showed Philip Morris knew cigarette smoking was linked to certain diseases and that the nicotine in cigarettes was addictive, and yet Philip Morris never disclosed that information to the public. Id. at *2. Instead, Philip Morris “represented to the public, in a campaign spanning decades, that cigarettes were not harmful and not addic- tive,” creating “false doubt among the public.” Id. Based on this, the Court held that “a jury could reasonably conclude that Brown, like so many others, was induced to rely and did so rely, to her det- riment, on Philip Morris to reveal the negative health effects of smoking and its addictive nature.” 9 Id.
9 The District Court similarly held, on her conspiracy claim, that this evidence was sufficient for a reasonable jury to conclude that “she relied to her detri- ment on Philip Morris’s acts and omissions, committed with other co-con- spirators . . . , of withholding information about cigarettes’ addictiveness and harmful health effects.” Brown v. R.J. Reynolds Tobacco Co., No. 3:09-CV- 10687, 2015 WL 3796282, at *3 (M.D. Fla. June 18, 2015). USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 18 of 24
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C.
Philip Morris appeals the District Court’s judgment on all claims. Phillip Morris makes two arguments on appeal. Philip Morris first argues that the District Court denied Philip Morris due process of law by giving the Engle III findings preclusive effect as to Brown’s claims of negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal and that federal law preempts Brown’s claims of negligence and strict liability. Our precedent in Graham and Burkhart forecloses this argument, as Philip Morris recognizes, and it merely seeks to preserve the issue for further review. Second, Philip Morris challenges the sufficiency of the evi- dence to support Brown’s fraud claims. Philip Morris argues, and we agree, that the Florida Supreme Court’s decision in Prentice renders our precedent on the fraud claims—specifically Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1108 (11th Cir. 2018)—ob- solete. 10 Accordingly, Philip Morris argues that the District Court
10 In Cote, we interpreted Florida law as not requiring that a plaintiff “show reliance on a specific statement.” Cote, 909 F.3d at 1108; see also R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st Dist. Ct. App. 2010); Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139, 1140 (Fla. 2d Dist. Ct. App. 2015); Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426, 441–42 (Fla. 2d Dist. Ct. App. 2017); Philip Morris USA, Inc. v. McCall, 234 So. 3d 4, 14–15 (Fla. 4th Dist. Ct. App. 2017). Rather, under Florida law at the time, a plaintiff could prove reliance by presenting evidence that she was (1) exposed to the tobacco companies’ pervasive disinformation campaign and (2) subsequently harbored USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 19 of 24
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erred in denying its renewed motion for judgment as a matter of law because Brown did not offer sufficient evidence of detrimental reliance or legal causation under Florida law. She presented no ev- idence, Philip Morris contends, that she was exposed to any state- ment by any tobacco company that, through concealment, omis- sion, or otherwise, falsely communicated that cigarette smoking was not harmful or addictive. Philip Morris also argues that, be- cause the jury’s punitive damages award was based solely on the fraud claims, we should vacate that award too. Further, Philip ar- gues that if we reverse the District Court’s order on the 50(b) mo- tion, we should remand the case and instruct the District Court to reduce the jury’s compensatory damage assessment by the amount of comparative fault that the jury found in its verdicts. Sowers v.
a misapprehension about the health effects and/or addictive nature of smok- ing, such that she would have behaved differently had she known the true facts. Cote, 909 F.3d at 1108. The Florida courts, in other words, treated the evidence of pervasive disinformation campaigns, and the “false controversy created by the tobacco industry” as a whole, as a form of “circumstantial evi- dence” from which juries could infer the detrimental reliance of plaintiffs. See Martin, 53 So. 3d at 1069. Our prior panel precedent rule requires us to follow a prior panel’s holding unless abrogated later by the Supreme Court or this Court sitting en banc. See Smith v. GTE Corp., 236 F.3d 1292, 1302–03 (11th Cir. 2001). How- ever, we are not bound by a previous decision of this Court interpreting state law if “subsequent decisions of the United States Supreme Court or the Florida courts cast doubt on our interpretation of state law.” Hattaway v. McMillian, 903 F.2d 1440, 1445 n.5 (11th Cir. 1990) (emphasis omitted). Prentice casts doubt on the interpretation of state law in Cote and so Cote no longer binds us. USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 20 of 24
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R.J. Reynolds Tobacco Co., 975 F.3d 1112, 1135 (11th Cir. 2020). We agree and reverse the District Court’s denial of judgment as a matter of law on the fraud claims, vacate the punitive damages award, and remand the case and instruct the District Court to re- duce the remaining award by comparative fault. 11 In Part II, we analyze the sufficiency of the evidence to sus- tain the jury’s verdict on Brown’s fraud claims under the new cau- sation standard announced by the Florida Supreme Court in Pren- tice. Because we agree that Brown’s evidence was insufficient un- der Prentice, we address the proper remedy on remand in Part III. II.
When reviewing evidentiary issues in a diversity case, “[w]e apply the federal standard to assess whether the evidence presented at trial was sufficient to raise a question of fact for the jury, but state law supplies the substantive law that we apply” the federal
11 Philip Morris also asks that, if we reverse the District Court’s denial of the 50(b) motion as to the fraud claims, we grant it a new trial on all issues. Spe- cifically, it argues that the evidence of the fraud claims tainted the jury’s as- sessment of (1) the negligence and strict liability claims; (2) compensatory damages; and (3) comparative fault. Because Philip Morris failed to raise these issues in its motion for new trial, we consider these issues forfeited and do not address them further. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 21 of 24
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evidentiary standard to. Cote, 909 F.3d at 1107 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938)). We review a renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) de novo, applying the same stand- ards as the district court. Id. at 1103. “We consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party.” Id. (quoting Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1275 (11th Cir. 2008)). We will “disturb the jury’s verdict only when there is no material conflict” as to the ev- idence and where no reasonable juror could agree to the verdict. Id. (quoting Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014)). We apply these standards in determining whether Brown es- tablished her fraud claims under the rule laid down by the Florida Supreme Court in Prentice. There, the Florida Supreme Court held that for “fraudulent concealment and conspiracy to fraudu- lently conceal claims,” an Engle-progeny plaintiff must prove (1) that the plaintiff relied to his detriment on a specific statement or set of related statements, (2) made by the defendant (or a co-con- spirator in a conspiracy claim), (3) which are misleading as to the health effects or addictiveness of smoking cigarettes. Prentice, 2022 WL 805951, at *3, 6. In proving reliance, the plaintiff must show that he or she “received, believed, and acted upon the state- ments that omitted the material information” such that it was the “but for cause” of the plaintiff’s harm. Id. at *6. Thus, appealing to the generalized disinformation campaign waged by tobacco USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 22 of 24
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companies is not sufficient to show that a failure to disclose infor- mation caused one’s injury. See id. at *6–8 (rejecting jury instruc- tion that suggested that reliance on the “omissions” related to or a “conspiracy” based on tobacco company defendant’s disinfor- mation campaigns as sufficient to show reliance). In ruling on Philip Morris’s 60(b) motion, the District Court held that Brown’s fraudulent concealment and conspiracy to fraud- ulently conceal claims were supported by “sufficient evidence” of reliance because “the tobacco companies engaged in ‘pervasive misleading’ advertising campaigns and created a false controversy with the intent to create doubt about the harmful health effects of smoking.” Brown, 2015 WL 3796282, at *1 (citing R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st Dist. Ct. App. 2010)). In other words, the District Court’s order faulted Philip Morris for simply failing to disclose to Brown the negative health effects and addictive nature of smoking in its widespread advertis- ing campaign. Under Prentice, the District Court was wrong. First, Pren- tice makes clear that Brown could not rely solely on the pervasive disinformation campaign waged by the Philip Morris to establish reliance. Prentice, 2022 WL 805951, at *6–8. Though she need not recall a particular moment in which she viewed a statement by Philip Morris, Brown needed to point to specific statements or ad- vertisements by Philip Morris or its co-conspirators that she was exposed to and relied on. Id. at *6–7. The evidence Brown pre- sented at trial consisted of, for the most part, her general exposure USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 23 of 24
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to or mere awareness of Philip Morris’s marketing campaign, which cannot establish reliance. See id. at *4 (“[T]here can be no reliance . . . if the plaintiff would have acted the same way regard- less of whether the defendant had made the misrepresentation.”). When asked explicitly why she started smoking Marlboro ciga- rettes, Brown stated that she started smoking because her friends were doing it and because she liked it. The closest she came to offering evidence of her reliance on a specific statement (or even set of statements) by Philip Morris was her brief recollection of a Marlboro Man advertisement, but she could not explain what it was about the Marlboro Man advertise- ment that influenced her decision to smoke. 12 Finally, Brown could not identify any other statement made by Philip Morris or any other co-conspirator that conveyed, to her, a message that smoking was not harmful or addictive, and she claimed that she never heard of the Frank Statement or any other statements made by the Council for Tobacco Research, the Tobacco Industry Re- search Committee, or the Tobacco Institute, the entities at the
12 On appeal, Brown claims that the images of the cowboys contained in the Marlboro Man advertisements gave her a misapprehension about the health effects and addictiveness of smoking cigarettes. However, at trial she stated that she did not know why these advertisements caused her to smoke or be- lieve that smoking Marlboros was the “in thing.” That testimony alone does not show that Brown relied on a statement by Philip Morris, instead of the influence of her friends. See Prentice, 2022 WL 805951, at *4 (“[R]eliance re- quires the plaintiff to have ‘received, believed, and acted upon’ a misstatement . . . .”). USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 24 of 24
24 Opinion of the Court 15-13160
center of the tobacco industry’s disinformation campaign. The ev- idence, even in the light most favorable to Brown, is insufficient to create a jury question on whether she would “have acted the same way regardless of whether the defendant had made the misrepre- sentation.” See id. III.
Finally, because we have reversed the District Court’s order denying Philip Morris’s 50(b) motion, we vacate the punitive dam- ages award, which was supported only by the fraud claims. IV.
Accordingly, we AFFIRM in part, REVERSE in part, and RE- MAND this case to the District Court with instruction to reduce Brown’s compensatory damages award by her comparative fault. SO ORDERED.