Philip Morris USA, Inc. v. Duignan

243 So. 3d 426

• Court: District Court of Appeal of Florida
• Decided: November 15, 2017
• Docket: 2D15-5055
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

PHILIP MORRIS USA, INC.; R.J. ) REYNOLDS TOBACCO COMPANY; ) LORILLARD TOBACCO COMPANY; ) and LORILLARD, INC., ) ) Appellants, ) ) v. ) Case No. 2D15-5055 ) KEVIN DUIGNAN, as personal ) representative of the Estate of ) Douglas Clarence Duignan, deceased, ) ) Appellee. ) ___________________________________ )

Opinion filed November 15, 2017.

Appeal from the Circuit Court for Pinellas County; Jack Day, Judge.

Cathy A. Kamm, Terri L. Parker, Daniel F. Molony, and Razvan Axente of Shook, Hardy & Bacon, L.L.P., Tampa; Geoffrey J. Michael and Daphne O'Connor of Arnold & Porter LLP, Washington, District of Columbia; Gregory G. Katsas of Jones Day (withdrew after briefing), Washington, District of Columbia; and Charles R.A. Morse of Jones Day, New York, New York, for Appellants.

David J. Sales, Daniel R. Hoffman of David J. Sales, P.A., Jupiter; Gary M. Paige, Robert E. Gordon of Gordon & Doner, P.A., Davie; James W. Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, for Appellee.

SALARIO, Judge.

Philip Morris USA, Inc. (PM) and R.J. Reynolds Tobacco Company

(Reynolds) appeal from a final judgment entered in favor of Kevin Duignan, the personal

representative of the Estate of Douglas Clarence Duignan (the Estate).1 Douglas

Duignan smoked cigarettes made by PM and Reynolds and later died of cancer, which

led to the filing of this Engle2 progeny suit by the Estate. We reverse and remand for a

new trial primarily because in responding to a note from the jury concerning the

testimony of Dennis Duignan, the decedent's brother and an important witness for the

defense, the trial court gave an answer improperly calculated to prevent the jury from

requesting a readback of that testimony. With respect to the Estate's claims for fraud by

concealment and conspiracy to commit fraud by concealment, we further conclude that

the trial court erroneously instructed the jury on the element of detrimental reliance.

The Trial Of This Engle Progeny Case

Background. For the benefit of the reader unfamiliar with tobacco litigation

in Florida, Engle progeny cases differ from ordinary product defect or wrongful death

cases in that they go to trial with certain factual matters having been conclusively

established as a result of the supreme court's decision in Engle v. Liggett Group, 945

1 Lorillard Tobacco Company is also named as an appellant here. Lorillard, however, has been merged into Reynolds, and Reynolds' liability in this case includes liability as a successor-by-merger to Lorillard. 2 Engle v. Liggett Grp., 945 So. 2d 1246 (Fla. 2006). -2- So. 2d 1246 (Fla. 2006). Engle was a class action brought against several tobacco

companies—PM and Reynolds included—on behalf of Florida-resident smokers who

developed smoking-related illnesses caused by addiction to cigarettes containing

nicotine. Trial verdicts established liability, compensatory damages for the class

representatives, and the entitlement to and the amount of punitive damages for the

class. The tobacco companies appealed, and the case reached the Florida Supreme

Court. The supreme court decertified the class and vacated the punitive damages

award—with the result being that individual members of the Engle class must pursue

individual damages actions in order to recover for smoking-related illnesses. Id. at

1254.

Although it decertified the class, the supreme court nonetheless held that

certain liability findings—so-called Phase I findings—made by the Engle jury could

stand and govern in individual actions by Engle class members. Id. at 1254-55. The

retained Phase I findings include findings that smoking cigarettes causes certain

diseases (including lung cancer), that nicotine is addictive, that the tobacco companies

placed cigarettes on the market that were defective and unreasonably dangerous, that

the tobacco companies were negligent, and that the tobacco companies concealed or

omitted material information about the health effects and addictive nature of cigarettes

and also conspired with one another to do so. Id. at 1257 n.4, 1276-77. To take

advantage of these findings in an individual suit, a plaintiff must establish membership

in the Engle class by proving that before November 21, 1996, the plaintiff had

developed one of the illnesses found by the Engle jury to be caused by smoking and

that the plaintiff's illness was caused by an addiction to cigarettes containing nicotine.

-3- Id. at 1256, 1277. If an individual plaintiff demonstrates class membership, the retained

Phase I findings are taken as conclusively established for purposes of the individual's

action. Id. at 1277.

This particular Engle progeny case proceeded to trial on an amended

complaint which alleged that before November 21, 1996, Douglas Duignan developed

lung cancer as a result of having been addicted to cigarettes containing nicotine. It

asserted claims for strict liability, negligence, fraud by concealment, and conspiracy to

commit fraud by concealment and sought compensatory and punitive damages. The

Estate acknowledged that Douglas Duignan bore some responsibility for his smoking

and asked for an apportionment of fault and damages on his nonintentional tort

claims—i.e., the claims for strict liability and negligence.

The trial evidence. The trial court held a two-phase trial. The first phase

was to determine the issues of Engle class membership, comparative fault, legal

causation on the Estate's fraud and conspiracy claims, and the Estate's entitlement—if

any—to punitive damages. The Estate presented evidence that Douglas Duignan

began smoking at fourteen and had become a regular smoker by his midteens. It also

presented evidence that he exhibited behaviors consistent with nicotine addiction, that

he made several unsuccessful attempts to quit smoking, and that he smoked light and

filtered cigarettes because he believed them to be safer alternatives. In 1992, when he

was forty-two years old, doctors discovered a cancerous tumor in Douglas Duignan's

lung and later found that there was cancer elsewhere in his body. He died thereafter.

As to the fraud and conspiracy claims, the Estate put on evidence that PM

and Reynolds, together with many other tobacco companies, conspired over several

-4- decades to conceal what they knew about the addictive properties and health effects of

smoking cigarettes. This included evidence of tobacco company advertising that

depicted cigarette smoking as glamorous and even healthy, the tobacco companies'

creation of a false controversy in the public debate designed to prolong doubt as to the

addictive properties and health effects of cigarette smoking, the promotion of the idea

that smoking light and filtered cigarettes reduced the risks associated with smoking, and

internal tobacco company documents showing what the tobacco companies actually

knew about nicotine addiction and smoking-related disease.

PM and Reynolds' defense, in contrast, focused substantially on a theory

that Douglas Duignan smoked because he liked smoking rather than because he was

addicted to nicotine or because he was misinformed about the risks. This theory put the

following items at issue: (1) Engle class membership (Douglas Duignan's affinity for

smoking, rather than his addiction to cigarettes, was the legal cause of his cancer), (2)

legal causation on the fraud and conspiracy claims (he knew the material health risks of

smoking and did not rely on any concealed or omitted facts), and (3) comparative fault

(his decision to keep smoking was his own).

PM and Reynolds put on evidence that significant information about the

adverse consequences of cigarette smoking generally was known to the public and

specifically was known to Douglas Duignan from the time he began smoking. They also

offered the testimony of Dennis Duignan, who lived in Washington State. Although he

did not appear in person at trial, portions of his deposition testimony were read to the

jury as evidence by the parties, with the trial lawyers playing the parts of questioner and

witness. Dennis Duignan testified that he and his brother referred to cigarettes using

-5- slang terms including "cancer sticks" and "coffin nails." He further testified about a

conversation with his brother that occurred sometime in the 1970s, during which

Douglas Duignan said that his doctor had told him "that if he didn't quit smoking, he'd be

dead in five years." When Dennis Duignan asked his brother whether he planned to

quit, Douglas Duignan replied that he did not plan to quit because he liked smoking.

The Estate questioned both the veracity of this testimony and the timing of the

conversation. Both sides addressed it in opening statements and closing arguments.

The instructions on fraud and concealment. At the close of the trial, the

jury was instructed to determine whether Douglas Duignan was a member of the Engle

class and, if he was, that it "must accept [certain] previously determined matters as true

. . . just as if you had determined them yourselves." A finding that Douglas Duignan

was a member of the Engle class coupled with the preclusive effect of the retained

Phase I findings on strict liability and negligence resolved the Estate's claims for strict

liability and negligence, with the exception of the issues of comparative negligence and

damages, as to which the jury was also instructed.

As relevant to the claims for fraud and conspiracy, the jury was instructed

that the retained Phase I findings conclusively established both that PM and Reynolds

each "concealed or omitted material information" about the adverse effects of smoking

and also that they "entered into an agreement" with other tobacco companies "to

conceal or omit information" regarding those matters. Those findings alone did not

resolve the claims for fraud and conspiracy, however, and the jury was required to

determine legal causation, which centered on the issue of detrimental reliance.

-6- PM and Reynolds requested an instruction that required the jury to find

that Douglas Duignan detrimentally and reasonably relied on "a statement" by each of

them (with respect to the fraud claim) and by a member of the conspiracy (with respect

to the conspiracy claim) and that such reliance was the cause of his cancer. The trial

court rejected that instruction and gave the jury a different special instruction concerning

the reliance element of the fraud claim:

The issue for your determination on Plaintiff's claims for concealment is whether the concealment or omission of material information regarding the health effects of cigarettes or their addictive nature by [PM and Reynolds] was a legal cause of Douglas Duignan's lung cancer because Mr. Duignan reasonably relied to his detriment that [PM and Reynolds] would not conceal or omit disclosure of such material information.

(Emphasis added.) The court gave a similar special instruction with respect to the

conspiracy claim:

The next issue for your determination will be whether the agreement to conceal or omit material information previously described was a legal cause of Douglas Duignan's lung cancer because Mr. Duignan reasonably relied to his detriment that [PM and Reynolds] would not conceal or omit disclosure of such material information either alone or in conjunction with others . . . .

(Emphasis added.)

The jury note. During its Phase I deliberations, the jury sent the court a

note about how to locate specific portions of the evidence to review, asking as follows:

"Is there a key for the evidence? We are having trouble finding things in the evidence

boxes. If not, can we have the number for Dennis Duignan's deposition?" During a

discussion with counsel over a potential response to this question, the parties and court

considered whether and how to advise the jury about the possibility that the deposition

-7- testimony read to the jury during the trial could be read back to the jury upon request.

The trial court expressed concern that allowing a readback of Dennis Duignan's

testimony would open a "Pandora's box" and perhaps give "undue influence" to that

testimony. The trial court proposed to instruct the jury that "[t]estimony is not generally

read back to a jury. There is a possibility under some circumstances." PM and

Reynolds objected to that instruction and proposed simply advising the jury that a

readback was possible.

The court declined. It brought the jury in, explained that no transcript was

available, and told the jury as follows:

[T]here's sort of a magic that happens with the six of you putting your recollections together, it's called collective recollection, and you are urged, in regard to all testimony in the case, to use your collective recollection.

It is not impossible to read testimony back to a jury, but it is not generally done. And part of that is to—so that no witness's testimony gets a—more focus or attention than anybody's, gets undue emphasis that way.

The verdicts and judgment. The jury then returned a verdict that, in

essence, determined that Douglas Duignan was a member of the Engle class and found

in the Estate's favor on all claims. It awarded $6,000,000 in compensatory damages

and found that the Estate was entitled to punitive damages. It apportioned fault as

follows: 37% to PM, 30% to Reynolds, and 33% to Douglas Duignan. After the second

phase of the trial, the jury awarded punitive damages of $3.5 million against PM and

$2.5 million against Reynolds.

The trial court entered a judgment against PM and Reynolds finding them

jointly and severally liable for the entire compensatory damage award, irrespective of

-8- the jury's comparative fault allocation, because the Estate had prevailed on its

intentional tort claims and damages on such claims are not apportioned based on

comparative fault. PM and Reynolds requested that the trial court apply a credit to the

punitive damages award based on a "Guaranteed Sum Stipulation" entered into by the

parties in the original Engle litigation regarding the punitive damage award in that case.

The trial court denied that request, and its judgment included the punitive damages

awards the jury made. PM and Reynolds timely appeal the judgment.

The Issues On Appeal

PM and Reynolds raise four issues.3 First, they assert that the trial court's

response to the jury note concerning Dennis Duignan's testimony both improperly

discouraged the jury from requesting a readback and, by advising the jury that a

readback would give "undue influence" to the testimony, improperly commented on the

evidence. Second, they argue that the trial court's instructions to the jury on the

reliance element of the Estate's fraud-based claims were erroneous because they failed

to require the jury to find that Douglas Duignan relied on "a statement" by one of the

tobacco companies. Third, they claim that the trial court erred by failing to reduce the

compensatory damages award based on the jury's comparative fault allocation because

Engle progeny cases are grounded in negligence, not intentional torts, and principles of

3 They also seek to preserve for review in the United States Supreme Court their arguments that it violates due process to allow an Engle progeny plaintiff to establish the conduct elements of his or her claims and that federal law impliedly preempts strict liability and negligence claims based on the Engle findings. The first of those arguments was rejected by the Florida Supreme Court in Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430-36 (Fla. 2013), and the second was rejected by the Florida Supreme Court in R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 605 (Fla. 2017). -9- comparative fault therefore apply notwithstanding the Estate's assertion of claims for

fraud by concealment and conspiracy. And fourth, they contend that they are entitled to

a credit against the punitive damage award based on the Guaranteed Sum Stipulation

between the tobacco companies and the Engle class in the original Engle litigation.

After oral argument in this case, this court issued an opinion in another

case deciding the issues of whether comparative fault applies when an Engle defendant

is found liable for intentional torts and whether the Guaranteed Sum Stipulation in the

original Engle litigation requires application of a credit to a punitive damages award

adversely to PM and Reynolds. See Philip Morris USA Inc. v. Boatright, 217 So. 3d 166

(Fla. 2d DCA 2017), appeal filed, No. SC17-894 (Fla. May 12, 2017). We therefore find

no merit in PM and Reynolds' third and fourth issues. As to the third issue concerning

comparative fault, we certify conflict, as we did in Boatright, with R.J. Reynolds Tobacco

Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233,

2016 WL 3127698, *1 (Fla. May 26, 2016), and the line of cases relying on it.4 We

further address PM and Reynolds' first two issues concerning the readback and the

reliance instructions below.

The Trial Court's Readback Instruction

We review a trial court's decision regarding readbacks of trial testimony for

abuse of discretion, State v. Barrow, 91 So. 3d 826, 835 (Fla. 2012), and we also apply

that standard to review a trial court's response to a jury question, Cannon v. State, 180

4 Philip Morris USA Inc. v. McKeever, 207 So. 3d 907 (Fla. 4th DCA 2017); R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017); R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016), review denied, No. SC16-1937, 2017 WL 1023712, *1 (Fla. Mar. 16, 2017), cert. denied, No. 16-1507, 2017 WL 1023712 (Oct. 2, 2017). - 10 - So. 3d 1023, 1036 (Fla. 2015). The trial court's response in this case—that although a

readback was "not impossible," it "is not generally done" and that the jury should rely on

its "collective recollection"—was an abuse of discretion because it was calculated to

prevent the jury from asking for a readback and thereby interfered with the jury's ability

to discharge its duties as the finder of fact in this case.5

The leading case on readbacks of trial testimony in Florida is Hazuri v.

State, 91 So. 3d 836 (Fla. 2012). In Hazuri, a jury in a criminal trial sent the judge a

note asking to see trial transcripts. The defendant argued that the right response to the

request was to tell the jury that transcripts were not available but that it could have read

back to it whatever testimony it wanted. The trial court disagreed and told the jury only

that transcripts were not available and that it should rely on its "collective recollection" of

the evidence to decide the case. Id. at 839. The defendant appealed his subsequent

conviction, arguing that the trial court erred when it refused to tell the jury that it could

have parts of the transcript read back. After the Third District affirmed, Hazuri v. State,

23 So. 3d 857 (Fla. 3d DCA 2009), the supreme court accepted jurisdiction.

The supreme court quashed the Third District's decision and held that the

trial court abused its discretion in failing to inform the jury of its right to request a

readback. 91 So. 3d at 846-47. It began by observing that the jury did not request a

readback—it only requested transcripts—but decided that the trial court was required to

inform the jury of the possibility of a readback nonetheless. Id. at 845. It tethered this

holding to the core function of the jury, explaining that "the role of a jury as a factfinder

5 To the extent the Estate contends that this error was either unpreserved or waived, the contention is, on our review of the record, without merit. - 11 - is of utmost importance" and that "a jury cannot properly fulfill its constitutionally

mandated role if it cannot recall or is confused about the testimony presented in a

case." Id. Because "[a] jury is composed of laypersons often unfamiliar with legal terms

of art," the court explained, "there should be no magic words required for a read-back

request." Id. "Failing to require further instruction concerning a read-back after a jury

has requested transcripts leaves the jury without the means to refresh its memory of

witness testimony—testimony that could be critical to the outcome of the verdict." Id.

The court thus adopted "the following two rules: (1) a trial court should not

use any language that would mislead a jury into believing read-backs are prohibited,

and (2) when a jury requests trial transcripts, the trial judge should deny the request, but

inform the jury of the possibility of a read-back." Id. at 846; see also Barrow, 91 So. 3d

at 834 (restating rules announced in Hazuri). "A trial judge can respond to a request for

transcripts in the following manner: 'Transcripts are not available, but you can request to

have any testimony read back to you, which may or may not be granted at the court's

discretion.' " Hazuri, 91 So. 3d at 846.

We recognize that Hazuri is a criminal case, as are the vast majority of

published decisions on readbacks in Florida. We also recognize that readbacks in

criminal cases are expressly regulated by rule 3.410 of the Florida Rules of Criminal

Procedure, see Hazuri, 91 So. 3d at 844, to which the civil rules contain no analog. At

the time Hazuri was decided, rule 3.410 contained a one-sentence, discretion-conferring

provision that a trial court "may" read back trial testimony to a jury.6 Fla. R. Crim. P.

6 The criminal rule has since been amended to regulate a trial court's communication with a jury concerning readbacks in more detail and in a manner consistent with Hazuri. See Fla. R. Crim. P. 3.410 (2017). Although adoption of a - 12 - 3.410 (2012); see also Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001) (holding

that rule 3.410 confers "wide latitude in the area of the reading of testimony to the jury"),

approved by Hazuri, 91 So. 3d at 847.

Those distinctions do not, however, mean that Hazuri should not apply in

civil cases. Although no rule of procedure governs readbacks in the civil context, a trial

judge in a civil case must, to carry out his or her responsibility to order and facilitate the

jury's deliberations, enjoy a similar discretion about readbacks to that given a trial judge

in a criminal case under rule 3.410. See Broward Cty. Sch. Bd. v. Ruiz, 493 So. 2d 474,

479-80 (Fla. 4th DCA 1986) (noting that no rule of civil procedure governs readbacks

but analogizing to rule 3.410); see also Fla. Std. Jury Instr. (Civ.) 801.2, note 1 ("In civil

cases, the decision to allow read-back of testimony lies within the sound discretion of

the trial court."). As such, our analysis of a trial court's readback decisions in a civil

case starts in the same place as it would in a criminal case: the trial court's ability to

permit or reject a request for a readback in its discretion based on the facts and

circumstances of the case.

Moreover, in deciding to regulate what a trial judge should and should not

say about the jury's ability to ask the trial judge to allow a readback, Hazuri relied on

similar civil rule to address readbacks was contemplated, no changes to the civil rules were made; instead, a standard jury instruction in civil cases to govern the discretion afforded a trial court when a jury requests a readback was adopted. In re Amendments to the Fla. Rules of Civil Procedure, 967 So. 2d 178, 183 (Fla. 2007). Following Hazuri, the standard civil readback instruction, Fla. Std. Jury Instr. (Civ.) 801.2, which contains an express statement for the trial court to use in addressing jury requests for readbacks, was amended to include a note to reflect some limits on the trial court's discretion similar to those in the criminal context. In re Standard Jury Instructions in Civil Cases- Report No. 12-02, 115 So. 3d 208, 209 (Fla. 2013). Although the trial court acknowledged that this standard instruction existed, it did not employ it in responding to the jury note in this case. - 13 - considerations that are also present in the civil context. In particular, the court

emphasized the jury's constitutional provenance and its centrality in determining facts

when they are the subject of dispute. Hazuri, 91 So. 3d at 845. Both considerations are

implicated in civil cases as well. See amend. VIII, U.S. Const.; art. I, § 22, Fla. Const.

A jury in a civil case is thus no more able to "properly fulfill its constitutionally mandated

role if it cannot recall or is confused about the testimony presented," see Hazuri, 91 So.

3d at 845, than a jury in a criminal case is. Because Hazuri's rules concerning the

possibility of a readback when transcripts are requested seek to ameliorate that

confusion and permit the jury to perform its core function as a trier of fact, we see no

reason why those rules should not be applied in civil cases as well.

In this case, the trial court's response to the jury note seeking a transcript

of Dennis Duignan's testimony, at a minimum, violated Hazuri's rule that a trial court

should not use language that would mislead a jury into believing that a readback is

prohibited. To be sure, the trial court did not explicitly say that a readback was

prohibited; indeed, it acknowledged that a readback was "not impossible." But whether

the trial court did or did not say that a readback was prohibited is not the question

Hazuri asks. The question is whether what the trial court did say "would mislead" a jury

into believing that a readback was prohibited. Hazuri, 91 So. 3d at 846; see also Roper

v. State, 608 So. 2d 533, 535 (Fla. 5th DCA 1992) (finding error where "the trial judge's

response to the jury's question may well have led the jury to conclude" that a readback

was prohibited), approved by Hazuri, 91 So. 3d at 847. The focus, then, is on what the

likely effect of the trial court's statements on a reasonable jury might have been. Here,

the answer is that a reasonable jury would have thought a readback prohibited.

- 14 - Four facets of the trial court's response to the jury note inform that

conclusion. First, the trial court advised the jury that readbacks, although "not

impossible," are "not generally done." Second, it told the jury that the reason readbacks

are "not generally done" is to prevent any witness's testimony from having undue

influence by getting more attention than any other witness's testimony. Third, the trial

court never told the jury that it had the option to ask for a readback; in other words,

although the trial court said that readbacks are "not impossible," the jury was never told

that it had the option to make that which was "not impossible" possible by asking for it.

And finally, the court instructed the jury to rely on its "collective recollection" of all of the

testimony in the case because of the "magic that happens" when a jury does so.

It takes no feat of imagination to see how this response might lead

reasonable lay jurors to think that asking for a readback would be a fool's errand. In

substance, the trial court communicated to them that a readback was something

extraordinary, that it was extraordinary because it gave the witness whose testimony

was read back undue influence, and that the jurors instead should rely on their

collective recollection of the testimony. The trial court's remarks, combined with its

silence on the jury's right to at least ask for the testimony to be read back, in essence

and effect, informed the jurors "that their only recourse was to rely upon their 'collective

recollections and remembrances' as to" Dennis Duignan's testimony because

transcripts were unavailable and a readback would not be forthcoming. See Roper, 608

So. 2d at 535. That was error. See Avila, 781 So. 2d at 416 (reversing where the trial

judge's response to transcript request "may have confused the jury as to whether a

readback of testimony was permissible"); Biscardi v. State, 511 So. 2d 575, 581 (Fla.

- 15 - 4th DCA 1987) (reversing where "the judge's words may reasonably have conveyed to

the jurors that to ask for . . . rereading of testimony would be futile"), approved by

Hazuri, 91 So. 3d at 847. Based on the trial court's stated concern about reading back

Dennis Duignan's testimony, this appears to have been the result its instruction was

calculated to produce.

The Estate argues that a Hazuri-type analysis is inapplicable in this case

because Hazuri deals with a trial court's response to a jury's request to see a transcript

of trial testimony, and the jury here sought only a transcript of Dennis Duignan's

deposition testimony. That distinction might be material in other cases—we need not

discuss it—but it is not in this one. Here, Dennis Duignan's deposition testimony was

his trial testimony. It was read by the lawyers to the jury as substantive evidence at the

trial. When deposition testimony is presented in this way, it is presented "as though the

witness was present and testifying" in person at the trial. Castaneda v. Redlands

Christian Migrant Ass'n, 884 So. 2d 1087, 1090 (Fla. 4th DCA 2004); see also Fla. R.

Civ. P. 1.330(a) (stating that, where authorized by this rule, a deposition may be used

"so far as [it is] admissible under the rules of evidence applied as though the witness

were then present and testifying").

Because Dennis Duignan's deposition testimony was presented to the jury

as his trial testimony, the jury's request for his deposition transcript should have been

interpreted as a request for the transcript of the deposition testimony that was read

aloud at trial.7 See Hazuri, 91 So. 3d at 845 (explaining that because jurors are

7 The cases upon which the Estate relies are not applicable because none involved consideration of a jury's request to examine transcripts of deposition testimony read aloud to the jury during trial as substantive evidence. See Adams v. State, 122 So. - 16 - laypersons, a court should liberally construe a request for transcripts, "especially when

the intent of the jury[] . . . is clear"). Indeed, the record in this case reflects that this is

precisely how the trial court, the tobacco companies' counsel, and the Estate's counsel

interpreted the request at the time it was made. The rules announced in Hazuri apply to

this case.

The Estate also argues that even if the trial court was mistaken in its

response to the jury note, any error was harmless. Trial court error is regarded as

harmless when "the beneficiary of the error proves that there is no reasonable

possibility that the error contributed to the verdict." Special v. W. Boca Med. Ctr., 160

So. 3d 1251, 1256-57 (Fla. 2014).

The inferences PM and Reynolds sought to draw from Dennis Duignan's

testimony—inferences the testimony reasonably, although not exclusively, supports—

were that Douglas Duignan knew early on that cigarettes caused cancer and other

diseases and that he continued smoking notwithstanding this knowledge, not because

he was addicted but because he did not intend to quit smoking. These inferences were

3d 976, 978-80 (Fla. 2d DCA 2013) (holding, without discussing whether the depositions were read at trial or the distinction between deposition and trial testimony, that the trial court's failure to inform the jury of the possibility of a readback in response to a request for "all the depositions" and "transcripts of all the testimony" was not remediable on appeal in the absence of a contemporaneous objection in the trial court); Bannister v. State, 132 So. 3d 267, 278-80 (Fla. 4th DCA 2014) (holding that where a jury requested the depositions in a case where trial witnesses read from them during parts of their live testimony, "the jury was not requesting a read-back of the witness's testimony, but rather hard copies of the depositions" themselves); Delestre v. State, 103 So. 3d 1026, 1027-28 (Fla. 5th DCA 2012) (holding that the trial court's failure to inform the jury of the possibility of a readback in response to a request for "all the testimony" was not fundamental error); see also Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir. 1998) (involving circumstances where it was clear that "the jury sought transcripts of depositions, rather than transcripts of the deposition testimony read during trial or a readback of such testimony"). - 17 - significant in this case because they bore directly on PM and Reynolds' argument that

Douglas Duignan was not a member of the Engle class because this cancer was not

caused by addiction, on their argument that Douglas Duignan was comparatively

negligent by continuing to smoke even when he was aware of the risk of cancer and

other disease, and on their argument that Douglas Duignan did not rely on any

information about addiction or the health effects of smoking that the tobacco companies

fraudulently concealed. The Estate and PM and Reynolds addressed Dennis Duignan's

testimony in opening statements and again in closing arguments. The fact that the jury

asked for a transcript of his testimony suggests that it may have found it significant as

well. Under these circumstances, there is at least a reasonable possibility that had the

jury been permitted to ask for a readback of Dennis Duignan's testimony, it might have

resolved one or more of the determinative issues in the case differently than it ultimately

did. See, e.g., Barrow, 91 So. 3d at 835 (concluding that trial court's use of language

that may have misled the jury into believing readbacks were prohibited was harmful

where the facts showed that "a review of the testimonies could have been most helpful

to the jury"); Roper, 608 So. 2d at 536 (holding that, where there were discrepancies

between the testimony requested and other testimony in the case, "the trial court's

refusal to even consider the reading of this crucial cross-examination" was not

harmless).

The trial court abused its discretion in addressing the jury's request for

Dennis Duignan's deposition, and the Estate has not met the burden to show that error

was harmless. Accordingly, we must reverse and remand for a new trial. In light of this

result, we need not further address PM and Reynolds' argument that the trial court also

- 18 - improperly commented on the evidence in its response to the jury's note. We do,

however, address one other issue raised on appeal because it relates to a matter that

rests within the scope of our remand and therefore requires our consideration.

The Trial Court's Instruction on Reliance

PM and Reynolds also argue that the trial court erred in instructing the jury

on the reliance elements in the claims for fraud by concealment and conspiracy

because it failed to tell the jury that Douglas Duignan was required to have relied on "a

statement" by PM or Reynolds in order for the Estate to prevail. We review a trial

court's decision to give or withhold a jury instruction for abuse of discretion, ITD Indus.,

Inc. v. Bus. Res. Grp., 779 So. 2d 532, 543 (Fla. 2d DCA 2000), but will find such an

abuse of discretion and reverse when an instruction is misleading and may have caused

the jury to reach a result it otherwise would not have reached, Citizens Prop. Ins. Corp.

v. Salkey, 190 So. 3d 1092, 1095 (Fla. 2d DCA 2016), quashed on other grounds, No.

SC16-784, 2017 WL 2709776, at *1 (Fla. June 23, 2017). While we do not read the

reliance requirement as narrowly as PM and Reynolds do—we do not think it

categorically requires reliance on "a statement"—the instruction in this case was an

abuse of discretion because it inaccurately told the jury to determine whether Douglas

Duignan generally relied on PM and Reynolds to disclose material facts rather than

telling the jury to determine whether he relied on a misapprehension concerning a

material fact that PM and Reynolds concealed from him.

Our analysis begins with what the Engle Phase I findings conclusively

established in this case. As concerns fraud by concealment, they established that PM

and Reynolds "concealed or omitted material information not otherwise known or

- 19 - available knowing that the material was false or misleading or failed to disclose a

material fact concerning the health effects or addictive nature of smoking cigarettes."

See Engle, 945 So. 2d at 1257 n.4, 1277. For the conspiracy claims, they established

that PM and Reynolds "agreed to conceal or omit information regarding the health

effects of cigarettes or their addictive nature with the intention that smokers and the

public would rely on this information to their detriment." Id.

The fact that the concealment or omission of material information with the

intention that it would be relied on was a given, however, does not mean that it caused

Douglas Duignan any harm unless he is shown actually to have relied on it. In a claim

founded in fraud, the link between a defendant's conduct and the plaintiff's harm is

supplied in part by the requirement that the plaintiff detrimentally and reasonably relied

on something the defendant said or failed to say. See Humana Inc. v. Castillo, 728 So.

2d 261, 265 (Fla. 2d DCA 1999) ("If a plaintiff claims to be misled, but cannot

demonstrate a causal connection between the defendant's conduct and the plaintiff's

misapprehension, the plaintiff cannot recover."); see also Calloway, 201 So. 3d at 766

("Florida's written opinions have consistently included detrimental reliance as an

element in fraudulent concealment instructions."). Thus, it is settled that "Engle-

progeny plaintiffs must . . . prove detrimental reliance in order to prevail" on claims for

fraudulent concealment and conspiracy to fraudulently conceal. Hess v. Philip Morris

USA, Inc., 175 So. 3d 687, 698 (Fla. 2015).

PM and Reynolds say that an Engle progeny plaintiff must show his

reliance on a direct statement by a defendant (in the case of fraudulent concealment) or

a member of the conspiracy (in the case of conspiracy), but that understanding of

- 20 - reliance is artificially narrow. It is true that fraud claims are commonly based on an

affirmative statement by the defendant and that in such circumstances the law speaks

of reliance on a statement or a representation. See, e.g., Butler v. Yusem, 44 So. 3d

102, 105 (Fla. 2010) (discussing reliance on such representations). But the cases' use

of the formulation "detrimental reliance on a statement" or something similar should not

obscure the nature of the inquiry: when we ask about detrimental reliance, we are

asking whether the plaintiff would have behaved in the same way had he known the true

facts. See, e.g., Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (holding that

individual issues of reliance generally preclude fraud class actions because "[w]hat one

purchaser may rely on in entering into a contract may not be material to another

purchaser"), distinguished on other grounds in KPMG Peat Marwick LLP v. Barner, 799

So. 2d 308, 309 (Fla. 2d DCA 2001). Depending on the facts presented in a claim

involving reliance, a statement is not the only way in which the claimant may prove it.

Consider a fraud claim based on an affirmative misrepresentation. A

seller of a car tells a buyer that "this car has never been in an accident." In fact, the car

has been in five of them. The seller's statement is false. Doubtless, a trial court would

properly instruct a jury to determine whether the plaintiff relied on a statement in

deciding to buy the car. See, e.g., Fla. Std. Jury Instr. (Civ.) 409.7. But it is the fact that

statement conveys—that the car had never been in an accident—that really mattered to

the buyer. An instruction that the buyer must prove reliance on a statement is correct

because the statement conveys the fact the buyer misapprehended.

In cases involving concealment or omission, however, the link between a

statement by the defendant and the plaintiff's misapprehension may be less direct.

- 21 - Suppose our car seller assured the buyer that "this car's transmission has always

worked fine." Suppose also that the statement was literally true but failed to note that

the seller had just discovered a defect in the transmission that will become a serious

problem within a year. Although the seller's statement was true, the plaintiff might still

claim fraud on the theory that having chosen to speak about the condition of the

transmission, the seller had a duty to disclose the transmission defect that had not yet

manifested itself to the buyer. See, e.g., ZC Ins. Co. v. Brooks, 847 So. 2d 547, 551

(Fla. 4th DCA 2003) ("Florida law recognizes that fraud can occur by omission[] and

places a duty on one who undertakes to disclose material information to disclose that

information fully."); Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin.

Partners, L.P.), 517 B.R. 310, 335 (Bankr. S.D. Fla. 2013) ("Fraudulent concealment is

common law fraud by means of actively concealing a material fact in the fact [sic] of a

duty to disclose that fact to the plaintiff."). In this circumstance, the statement itself only

expressed the material fact that the transmission had worked fine in the past—a

historical fact that may not have mattered to the buyer and, even if it did, cannot have

operated to the buyer's detriment because it was true. The buyer here was not misled

by the content of a statement; he was misled regarding an unstated truth the seller

became obligated to disclose by virtue of having decided to speak. A jury instruction

that the buyer must have detrimentally relied on the seller's statement would be

appropriate in this circumstance because the seller's statement triggered his disclosure

obligation. But it would be more precise to ask whether he relied on a misapprehension

as to the fact concealed or omitted.

- 22 - And then, of course, there can be concealment or omission with no

statement at all, such as when the car's seller, knowing the trunk is severely rusted

inside, parks the car so as to prevent the buyer from opening it fully and finding the

damage. See, e.g., Restatement (Second) of Torts § 550, cmt. a (Am. Law. Inst. 2016)

(providing similar example of fraudulent concealment); see also Joiner v. McCullers, 28

So. 2d 823, 824-25 (Fla. 1947) (explaining that "[t]he rule that fraud cannot be

predicated of a failure to disclose facts . . . does not apply where a party[,] in addition to

non-disclosure[,] uses any artifice to throw the other party off his guard" or on "any . . .

act . . . which tends affirmatively to a suppression of the truth" (quoting 12 Ruling Case

Law, Fraud and Deceit § 80, 319-20 (William M. McKinney & Burdette A. Rich, eds.

(1916), a now out-of-print legal treatise). Alternatively, the seller stands in a fiduciary

relationship to the buyer and, although obligated by that relationship to make disclosure

of the rusted trunk, fails to do so. See TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878,

880 (Fla. 4th DCA 2000) (holding that a duty of disclosure exists where there is a

fiduciary or other relationship of trust and confidence between plaintiff and defendant

(quoting State v. Mark Marks, P.A., 654 So. 2d 1184, 1189 (Fla. 4th DCA 1995))). In

either circumstance, it would be inaccurate to instruct a jury to look for reliance on a

statement to fulfill the obligation of proof because no statement was made. The buyer's

reliance, if any, was on the mistaken belief that there was nothing wrong with the trunk.

In this circumstance, it would be incorrect to instruct the jury that it had to find reliance

on a statement because there was not one on which the buyer could rely.

The point of these hypotheticals is not to catalog every variation of the

facts upon which a reliance instruction might be given. It is to show that whether an

- 23 - 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. See Calloway,

201 So. 3d at 766 (holding, in an Engle progeny case, that "[t]he instruction need not

include reliance on 'a statement' unless the facts of the case warrant it"). It also is to

show that when the facts involve concealment or omission, an instruction requiring

detrimental reliance on a misapprehension as to the fact concealed or omitted will

usually accurately inform the jury of what it must find with respect to the element of

detrimental reliance essential to that claim. That is the case here.

PM and Reynolds argue, however, that reliance on "a statement" is

necessary in an Engle progeny case because the concealment claim in the original

Engle trial was predicated on statements by the tobacco company defendants in that

case. They point to language in the Engle jury instructions showing that the

concealment claim hinged on statements that the Engle plaintiffs contended required

the tobacco companies to make complete disclosure of what they knew about the health

consequences of smoking and to arguments made by Engle class counsel to similar

effect. Assuming for argument's sake that PM and Reynolds have accurately construed

the concealment claim litigated in the Engle trial—a matter we need not decide—that

still would not command a hard-and-fast rule that an instruction in an Engle progeny

case must include a requirement that the plaintiff detrimentally relied on "a statement."

The excerpts of the Engle trial to which PM and Reynolds point depict a

theory of concealment based on circumstances in which a defendant has spoken on a

subject—i.e., has made a statement about it—and thereby became obligated to make a

fuller disclosure and, by failing to do so, concealed or omitted material facts. As

- 24 - described above, it is at least equally accurate to say that the plaintiff's reliance must be

on a misapprehension as to the material facts or information concealed or omitted by

the defendant, rather than on any specific statement it made.

This is consistent with the way Florida courts have evaluated the legal

sufficiency of a plaintiff's evidence of reliance in the context of the fraudulent

concealment and conspiracy claims in an Engle progeny case. An Engle plaintiff's proof

in such cases typically includes, as it did in this case, extensive evidence of the tobacco

company defendants' participation in a decades-long pervasive advertising campaign

and creation of a false controversy about the addictive nature and health effects of

cigarettes that operated to conceal the adverse consequences of smoking from

cigarette consumers. In such circumstances, the courts have refused to hold that an

Engle progeny plaintiff must identify specific statements that he read or heard and relied

upon in making a decision regarding cigarette smoking in order to prevail. See Philip

Morris USA, Inc. v. Kayton, 104 So. 3d 1145, 1149 (Fla. 4th DCA 2012), quashed on

other grounds, 41 Fla. L. Weekly S113 (Fla. Feb. 1, 2016) (table decision); R.J.

Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069-70 (Fla. 1st DCA 2010). The

reason is that the very pervasiveness of the advertising campaign and false controversy

and uniqueness of the facts concealed or omitted permits an Engle progeny jury to infer

reliance. See Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 353 (Fla. 2d DCA

2013) (discussing Martin, 53 So. 3d at 1069-70). But see Berger v. Phillip Morris USA,

Inc., 101 F. Supp. 3d 1228, 1238-39 (M.D. Fla. 2015) (criticizing reasoning of these

cases and predicting that the Florida Supreme Court will not follow them), appeal filed,

101 F. Supp. 3d 1228 (11th Cir. Jan. 5, 2016). This is not to say that a tobacco

- 25 - company cannot show otherwise. Cf. Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d

1139, 1141 (Fla. 2d DCA 2015) (reversing entry of a directed verdict and rejecting

defendant's sufficiency challenge on reliance element where "the tobacco company has

pointed to no evidence that Ms. Loyd was aware that the nicotine in cigarettes was

addictive, nor has it conclusively demonstrated that despite some awareness on Ms.

Loyd's part that smoking could cause health problems, that she was not reassured by

the controversy the tobacco companies generated to keep people smoking"). But the

cases do seem to establish that reliance on "a statement" is not required to prevail in an

Engle progeny case.

PM and Reynolds also argue that without an instruction that requires the

plaintiff to have relied on a statement, they risk being held liable for a pure

nondisclosure unaccompanied by a misleading statement, misleading conduct, or duty

to disclose. They correctly observe that silence, unaccompanied by a duty to disclose,

is not actionable as fraud. See TransPetrol, 764 So. 2d at 879-80. And it is logically

true that if a jury were to look solely at the Engle Phase I finding of "omissions" and a

reliance instruction that allowed it to find fraud if the plaintiff relied on the fact omitted,

then there is at least a theoretical possibility that PM or Reynolds could be held liable in

fraud for pure silence about the health effects or addictive properties of cigarettes.8 But

to the extent this is a problem, it is not a problem for the element of reliance to solve.

8 Whether this logical possibility extends beyond theory to a real-world application is an open question that we need not address. The Estate argues that this possibility is wholly theoretical because the proof in this case includes evidence of decades-long advertising campaigns and the creation of a false controversy over the effect of smoking that by its nature included statements rendered misleading by the concealment or omission of material facts. - 26 - The question of whether a defendant has a duty to make a disclosure is

legally and factually distinct from the question of whether a plaintiff relied on a

nondisclosure. The question of duty to disclose hinges on whether the defendant has

done something toward the plaintiff or occupies a status with respect to the plaintiff that

obligates the defendant to make a disclosure. See, e.g., Metcalf v. Johnson, 113 So. 2d

864, 868 (Fla. 2d DCA 1959) ("Where persons sustain towards another a relation of

trust and confidence, their silence when they ought to speak, or their failure to disclose

what they ought to disclose, is as much a fraud in law as an actual affirmative false

representation."). The question of reliance, in contrast, asks whether a

misapprehension as to the undisclosed fact took on significance in the mind of the

plaintiff and influenced his decision-making with respect to the matter at issue to his

detriment. See, e.g., Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488

So. 2d 843, 845-46 (Fla. 2d DCA 1986) (holding that plaintiff satisfactorily alleged

detrimental reliance where it alleged that it entered into the transaction based on its

belief in the defendants' representations). In other words, reliance is not focused on the

defendant's duty but rather on the plaintiff's reaction to a misstated, concealed, or

omitted fact.

PM and Reynolds' concern about the absence of the words "a statement"

from the jury instructions is actually linked to the question of duty, not the question of

reliance. See, e.g., Marriott Int'l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So. 3d 902, 908

(Fla. 3d DCA 2015) ("A duty to disclose may arise where a party undertakes to disclose

certain facts, such that the party must then disclose the entire truth known to him. Such

a claim, however, must be supported by some evidence of a statement that would

- 27 - trigger the further duty to disclose all known material facts." (emphasis added) (citation

omitted)). The risk of PM's or Reynolds' being held liable for an omission in the

absence of a duty to disclose is thus not the result of a failure to require reliance on a

statement but rather is the result of one of two possible conditions: (1) that the Phase I

Engle findings necessarily embrace a disclosure obligation that cannot be relitigated in

every Engle progeny case or (2) that a jury instruction directed to the question of an

Engle defendant's disclosure obligations may be proper if requested and implicated by

the evidence in the case. We express no opinion on either possibility because they are

not before us. We hold only that the element of reliance cannot do the work that PM

and Reynolds ask of it here.

Having determined that a special jury instruction demanding reliance on "a

statement" was not required in this case, we consider the special instruction the trial

court gave—namely, that the jury could find the reliance element satisfied if the

evidence showed that Douglas Duignan "reasonably relied to his detriment that [PM and

Reynolds] would not conceal or omit disclosure of such material information." This

instruction was both inaccurate and misleading. It in essence told the jury that it could

find reliance if it found that Douglas Duignan generally relied on the tobacco companies

to disclose all material information, without requiring it to find that the material

information the tobacco companies concealed or omitted was in fact important to his

decisions to begin or continue smoking. Because the very purpose of the reliance

requirement is to determine whether the plaintiff acted differently because of PM's or

Reynolds' concealment or omission of facts, this instruction was misleading.

- 28 - It also may have made a difference to the outcome. As described above,

the notion that Douglas Duignan started or continued smoking because he enjoyed

smoking and not because of anything PM or Reynolds said or failed to say was a key

element of their defense. A proper instruction—one that required reliance on either a

statement or on a misapprehension as to a concealed or omitted fact—would have

required the jury to consider that possibility and determine whether the tobacco

companies were correct as to the reasons for Douglas Duignan's actions. The

instruction the trial court gave, in contrast, allowed the jury to ignore this aspect of PM

and Reynolds' defense because, if Douglas Duignan's general reliance on them to

disclose everything is sufficient to prove reliance, there was no reason for the jury to

consider whether any particular undisclosed fact would have made a difference to his

decisions about smoking. Accordingly, the error in these instructions might reasonably

have misled the jury and constitutes reversible error. See, e.g., Fla. Power & Light Co.

v. McCollum, 140 So. 2d 569, 569 (Fla. 1962) (concluding that the proper "inquiry is

whether the jury might reasonably have been misled" and concluding that such

constitutes a miscarriage of justice under the civil harmless error statute in effect at the

time); Gerard v. Kenegson, 151 So. 2d 26, 28 (Fla. 2d DCA 1963) ("In view of the fact

that instruction . . . was erroneous[,] and since the instruction can be reasonably

calculated to confuse and mislead the jury, the giving of the instruction was error.");

Veliz v. Am. Hosp., Inc., 414 So. 2d 226, 228 (Fla. 3d DCA 1982) ("An instruction which

tends to confuse rather than enlighten the jury is cause for reversal if it may have misled

the jury and caused them to arrive at a conclusion that otherwise they may not have

reached."); see also § 59.041, Fla. Stat. (2015) (setting forth the civil harmless error

- 29 - standard for appellate review and containing the same miscarriage of justice language

as that cited in Florida Power & Light).

At oral argument, the Estate contended that this defect in the reliance

instruction was harmless because the trial court, at PM and Reynolds' request, also

instructed the jury on materiality, telling it that "material information is that which is of

such importance that it would have made a difference in Douglas Duignan's actions if it

had been disclosed."9 Thus, according to the Estate, the materiality instruction

effectively required the jury to answer the question that the reliance instruction should

have asked. We disagree. Neither the jury instructions nor the verdict form required

the jury to determine materiality. On the contrary, the jury was instructed to take

materiality as a given. It was told that the Engle Phase I findings conclusively

9 This instruction appears to be based on a standard instruction in civil cases. See Fla. Std. Jury Instr. (Civ.) 409.5 ("A material fact is one that is of such importance that (claimant) would not have [entered into the transaction] [acted], but for the false statement."). There may be reason to question whether this standard instruction is legally correct. Materiality is generally evaluated under an objective test— inquiring whether a misrepresented or omitted fact would have taken on significance in the mind of a reasonable person. See Moustafa v. Omega Ins. Co., 201 So. 3d 710, 715 (Fla. 4th DCA 2016) (holding that materiality, as used in statute regarding false representations in an insurance policy application, is to be determined under an objective test); Silverman v. Pitterman, 574 So. 2d 275, 276 (Fla. 3d DCA 1991) ("A material fact is generally defined as one to which a reasonable person would attach importance in determining a choice of action."); see also Basic Inc. v. Levinson, 485 U.S. 224, 240 (1988) (holding, under federal securities fraud statute, that "materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information"); Dan B. Dobbs, The Law of Torts § 476 at 1363 (West 2001) ("Representations are material if a reasonable person would want to consider the fact represented in determining whether to enter the transaction in question, and also if a reasonable person would not care about the fact represented but the plaintiff attaches her own idiosyncratic importance to it and the defendant knows it."). But see Atl. Nat'l Bank of Fla. v. Vest, 480 So. 2d 1328, 1332 (Fla. 2d DCA 1985) ("A fact is material if, but for the alleged nondisclosure or misrepresentation, the complaining party would not have entered into the transaction."). - 30 - established that PM and Reynolds concealed or omitted material information related to

the health effects and addictive properties of cigarettes, and the trial court's specific

instructions on the fraudulent concealment and conspiracy claims assumed materiality

rather than putting it to the jury to decide. Simply put, because the jury was told both

expressly and by implication to assume materiality rather than to decide it, the Estate

cannot establish a reasonable probability that the instructional error did not affect the

verdict on the fraud by concealment and conspiracy claims. See Special, 160 So. 3d at

1256-57. The instructional error here was not harmless.

At a minimum, the error would require a new trial on the Estate's claims for

fraudulent concealment and conspiracy to fraudulently conceal. The parties disagree,

however, about whether it also requires a new trial with respect to punitive damages.

While the error itself is one worthy of articulation so that it is not repeated in the second

trial, we need not reach a determination on what the scope of that error alone would be

on remand because we reverse and remand for a new trial on all issues based on the

trial court's readback instruction.

Conclusion

For the foregoing reasons, the final judgment is reversed and this case is

remanded for a new trial. We certify conflict with Schoeff, Calloway, McKeever, and

Grossman with respect to the comparative fault issue in this case.

Reversed and remanded; conflict certified.

KELLY and BLACK, JJ., Concur.

- 31 -