Opinion
3D19-0239
06-19-2024
Philip Morris USA, Inc., Appellant, v. Brenda Chadwell, etc., Appellee.
Arnold & Porter Kaye Scholer LLP, and David M. Menichetti, Frank Cruz-Alvarez, and David E. Kouba (Washington, D.C.), for appellant. Burlington &Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Law Offices of William J. Wichmann, P.A., and William J. Wichmann (Fort Lauderdale), for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 10-17931, Jacqueline Hogan Scola, Judge.
Arnold & Porter Kaye Scholer LLP, and David M. Menichetti, Frank Cruz-Alvarez, and David E. Kouba (Washington, D.C.), for appellant.
Burlington &Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Law Offices of William J. Wichmann, P.A., and William J. Wichmann (Fort Lauderdale), for appellee.
Before EMAS, GORDO and LOBREE, JJ.
Judges Emas and Gordo did not participate in the original panel opinion.
LOBREE, J.
We reconsider this Engle-progeny action on remand from the Florida Supreme Court in light of Prentice v. R.J. Reynolds Tobacco Co. (Prentice II), 338 So.3d 831 (Fla. 2022). The defendant below, Philip Morris USA, Inc. ("Philip Morris"), appeals from the trial court's denial of its motion for directed verdict following a final judgment entered pursuant to a jury verdict in favor of the plaintiff below, Brenda Chadwell ("Plaintiff" or "Mrs. Chadwell"), as personal representative of the estate of her husband, James L. Chadwell ("Mr. Chadwell" or "the Deceased").
Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).
The jury specifically found that Mr. Chadwell was addicted to cigarettes containing nicotine and that such addiction was a legal cause of his lung cancer. Thus, the jury found in Plaintiff's favor on her claims of negligence and strict liability.
For the reasons set forth below, we reverse the final judgment in part, and remand for entry of a directed verdict in favor of Philip Morris on Plaintiff's fraud and conspiracy claims and reduction of Plaintiff's compensatory damages based on the percentage of the Deceased's comparative fault. We affirm the remainder of the final judgment.
Background
Plaintiff pursued a wrongful death action against Philip Morris asserting claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. At trial, Philip Morris asked Mrs. Chadwell and other family members several questions relating to Mr. Chadwell's reliance on any statements or advertising from Philip Morris that influenced his decision to smoke cigarettes. Philip Morris argued that Plaintiff was required to establish that Mr. Chadwell made an affirmative statement that he detrimentally relied on statements, advertisements, or representations made by Philip Morris and/or any other Engle defendant. Philip Morris added that Mr. Chadwell could not have been affected by its concealment or false advertising because there were warnings on the cigarette packages. The evidence showed that Mr. Chadwell did not state that he smoked Marlboro cigarettes because of any of Philip Morris's advertisements; he did not mention seeing, reading, or hearing Philip Morris's statements; he never stated that cigarette companies withheld information from him, and he did not mention or discuss cigarette advertisements. The record shows, however, that Mr. Chadwell was a collector of Marlboro memorabilia and merchandise and only smoked Marlboro cigarettes.
The jury returned a verdict in favor of Plaintiff, finding Philip Morris was 70% at fault and Mr. Chadwell was 30% at fault, and awarded $2.4 million in damages to Plaintiff. The jury also found that punitive damages were warranted against Philip Morris. However, in the Phase II proceeding, the jury did not award any punitive damages. Thereafter, the trial court denied all post-trial motions and entered a final judgment in favor of Plaintiff in the amount of $2.4 million.
Philip Morris raised the following issues on appeal to this court: 1) Plaintiff failed to present evidence that Mr. Chadwell was exposed to and relied on any detrimental statement made by Philip Morris that concealed or omitted information; and 2) the jury instruction on the fraud counts, relating to the reliance requirement, was incorrect. This court initially affirmed the trial court's ruling, concluding that the special jury instructions provided to the jury on fraud and reliance sufficiently instructed the jury on the need to prove reliance not merely on omissions, but on misleading statements and concealed material information as well. Philip Morris USA, Inc. v. Chadwell, 306 So.3d 174 (Fla. 3d DCA 2020). In so doing, we acknowledged conflict with R.J. Reynolds Tobacco Co. v. Whitmire, 260 So.3d 536 (Fla. 1st DCA 2018), and R.J. Reynolds Tobacco Co. v. Prentice (Prentice I), 290 So.3d 963 (Fla. 1st DCA 2019), in which the First District Court of Appeal found substantially similar evidence of detrimental reliance to be insufficient to support the fraud counts as a matter of law.
The Florida Supreme Court granted discretionary review, quashed this court's opinion, and remanded the case for reconsideration in light of its decision in Prentice II, as applicable to the Plaintiff's counts for civil conspiracy to fraudulently conceal and fraudulent concealment. Philip Morris USA, Inc. v. Chadwell, 351 So.3d 1090 (Fla. 2022).
The parties filed supplemental briefs on the applicability of Prentice II to the facts of this case addressing the following issues on remand: 1) whether the trial court's fraud instructions were erroneous by including reliance on "omissions" as well as on misinformation or statements made by Philip Morris; 2) whether Plaintiff's evidence of reliance is insufficient as a matter of law; and 3) whether Philip Morris is entitled to a new trial on all compensatory damages issues because the fraud claims are inextricably intertwined with the other issues in the case.
Standard of Review
We review the trial court's denial of a motion for directed verdict de novo. R.J. Reynolds Tobacco Co. v. Rouse, 307 So.3d 89, 92 (Fla. 3d DCA 2020). "When an Engle defendant unsuccessfully challenges the sufficiency of the detrimental reliance evidence in the trial court, it can prevail on appeal if no proper view of the evidence or inference from the evidence supports the verdict." Philip Morris USA Inc. v. Cuddihee, 338 So.3d 444, 446 (Fla. 1st DCA 2022) (citing Whitmire, 260 So.3d at 538). We must evaluate the evidence and all reasonable conclusions and inferences from it in the light most favorable to the verdict. See Rouse, 307 So.3d at 92.
Proof of fact by inference is a recognized standard the trial court must apply when deciding whether to grant or deny a directed verdict. See, e.g., Banco Espirito Santo Int'l, Ltd. v. BDO Int'l, B.V., 979 So.2d 1030, 1032 (Fla. 3d DCA 2008) ("An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." (quoting Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001))).
Analysis
Prior to Prentice II, Engle conclusively established that the tobacco companies agreed to conceal, omit, and misinterpret 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. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1257 n.4. (Fla. 2006). Until Prentice II, a jury in an Engle progeny case was permitted to infer reliance based on evidence of the smoker's own history coupled with the tobacco industry's pervasive advertising without the need to prove that a smoker relied on any specific tobacco company statement. See, e.g. Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1108 (11th Cir. 2018) (recognizing unique circumstances underlying Engle progeny fraudulent concealment claims, and noting that Florida courts have consistently held that Engle progeny plaintiffs are not required to show reliance on specific statement) (abrogated by Brown v. R.J. Reynolds Tobacco Co., 38 F.4th 1313 (11th Cir. 2022) (holding evidence was insufficient to demonstrate smoker's reliance on specific statements by manufacturer, as required to support fraudulent concealment claim))); Philip Morris USA Inc. v. McCall, 234 So.3d 4, 14 (Fla. 4th DCA 2017) (explaining that in Engle case, fraudulent concealment claim need not be limited to reliance on statement) (abrogation recognized by Brown); Philip Morris USA Inc. v. Duignan, 243 So.3d 426, 441-42 (Fla. 2d DCA 2017) (holding that Engle-progeny plaintiff was not required to prove detrimental reliance on statement) (disapproved of by Prentice II); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1069 (Fla. 1st DCA 2010) (finding "abundant evidence from which the jury could infer . . . reliance on pervasive misleading advertising campaigns . . . and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health").
In Prentice II, the Florida Supreme Court "resolve[d] a district court conflict over what proof is required to prevail on the reliance element of [an Engle plaintiff's] fraudulent concealment and conspiracy claims-a disagreement that ha[d] led to divergent jury instructions in Engle progeny cases." 338 So.3d at 834. Since Prentice II, in order to prevail on fraudulent concealment and conspiracy to conceal claims, an Engle plaintiff can no longer prove the reliance element by inference from well-known and pervasive tobacco ad campaigns. Now, an Engle plaintiff must present direct evidence that the smoker specifically relied on a tobacco company's statement, or a category of statements, to support an alleged concealment claim against an Engle defendant (or a co-conspirator for an alleged conspiracy claim), and that the statement(s) relied upon concealed or omitted material information about the health effects or addictiveness of smoking cigarettes. Prentice II, 338 So.3d at 838. Prentice II further specified that an Engle plaintiff must introduce evidence that draws "a causal connection running from an Engle defendant's [qualifying misleading] statement or statements, to the plaintiff's beliefs about the health effects or addictiveness of smoking cigarettes, to the plaintiff's injury." Id. at 837. The court explained:
[A]n Engle progeny plaintiff need not prove reliance on a statement that was affirmatively false on its face. It is enough for the plaintiff to prove reliance on statements that, while not necessarily false on their face, are misleading because they conceal or omit other material information. The key distinction is between making statements that are misleading by omission, on the one hand, and pure silence or a passive failure to disclose, on the other. Only the former can support fraud liability in an Engle progeny case. ....
What matters is that the defendant intend[ed] to induce the plaintiff's reliance by creating a false impression in the plaintiff's mind. That is why our cases have made clear that, in any fraud case, the object of a plaintiff's reliance is a representation by the defendant. See, e.g., Am. Int'l Land Corp. v. Hanna, 323 So.2d 567, 569 (Fla. 1975) ("In an action for fraud and deceit plaintiff must allege (1) that defendant made a representation on which plaintiff was meant to act, (2) that the representation was false and defendant knew that fact, and (3) that plaintiff relied on the representation to his injury."). Fraud is effected through representations. ....
For the reliance element of the fraudulent concealment claims, the Engle progeny plaintiff's burden is to prove that the defendant's fraudulent conduct-as defined in Engle-caused the plaintiff to form a false belief about the health effects or addictiveness of smoking cigarettes and then to act to his detriment. And as we have explained, as to fraudulent concealment, the Engle defendants perpetrated their fraud through incomplete statements.
The only way for an Engle progeny plaintiff to prove reliance (and therefore causation) is to show that he received, believed, and acted upon the statements that omitted the material information.Id. at 837-840.
Actionable misrepresentations are not limited to statements that are affirmatively false on their face. Fraud liability can also be premised on statements that are misleading because they omit other material information. Indeed, the common law has long
recognized that the representation underlying a fraud claim can be communicated through myriad forms of conduct.Id. at 838 (citing W. Page Keeton et al., Prosser &Keeton on the Law of Torts § 106 (5th ed. 1984) ("The representation which will serve as a basis for an action of deceit . . . usually consists, of course, of oral or written words; but it is not necessarily so limited.")). Prentice II makes clear that the plaintiff cannot now rely solely on the pervasive disinformation campaign waged by the tobacco companies in general, and Philip Morris specifically, to establish detrimental reliance. Prentice II concluded that a jury instruction that does not require a finding of reliance on a statement is erroneous and prejudicial because it could reasonably mislead a jury "into finding liability based on mere nondisclosure, without connecting that nondisclosure to [the smoker's] injury." Id. at 842. Thus, Prentice II renders most Florida precedent on proof of reliance for Engle-progeny cases obsolete.
Since Prentice II was issued, few appellate cases have directly or indirectly grappled with the new reliance instructions. In Philip Morris USA Inc. v. Holliman, 374 So.3d 87, 90-91 (Fla. 3d DCA 2022), Holliman's daughter's testimony reflected that Holliman saw a number of false and misleading statements about dangers associated with smoking on various television programs once he became a regular smoker, and that he expressed his belief after watching at least one such program that cigarettes were not bad for you. Our court found this evidence "allowed for a reasonable conclusion that Holliman continued to smoke because he was misled by the tobacco companies into believing that smoking was not harmful to his health at least until the mid-1980s, when he received the first personal warnings about the risks associated with smoking and made his first attempts to quit. This was sufficient evidence of detrimental reliance." Id. at 93.
In Cuddihee, 338 So.3d at 447, the First District Court of Appeal held that detrimental reliance evidence sufficiently supported the plaintiff's concealment-conspiracy claim. In that case, according to family witnesses, the decedent switched to low-tar Merits after developing a cough and discovering what he believed to be a more healthful, less-addictive smoking alternative. Id. The decedent's former wife attributed his switch to low-tar Merits because they were "a lighter cigarette, thinking it did not have all the tar and nicotine that the regular full strength had." Id. Additionally, the decedent's daughter "expressly identified tobacco advertisements as the source of the information prompting the decedent's switch to Merits because he used words 'almost match[ing] verbatim' the language of the advertisements." Id. Other evidence showed that the decedent was on Philip Morris's mailing list and personally engaged with Philip Morris's various marketing campaigns by signing up for promotions, returning postcards, filling out surveys, and maintaining a jar full of cigarette coupons distributed by Philip Morris. The packaging of the cigarettes smoked by the decedent also highlighted the filtered and low-tar features that prompted the decedent's switch to supposedly less-harmful and less-addictive cigarettes. Id.
Philip Morris USA Inc. v. Duignan (Duignan III), 370 So.3d 978, 983 (Fla 2d DCA 2023), does not directly address the reliance issue, although it does reiterate the new Prentice II standard. Duignan III addresses Philip Morris's argument that all the issues are intertwined. In Duignan III, the Second District Court of Appeal rejected Philip Morris's argument that all the negligence, strict liability, and comparative fault issues are intertwined with the fraud claims following Prentice II. Duignan III, 370 So.3d at 984. As the dissent in Prentice I explained, negligence and strict liability are separate and independent causes of action from the fraud claims:
[The tobacco company]-even if it was entitled to the jury instruction it sought on its conspiracy claim-would be entitled to a new trial on that claim only. It would not be entitled to a new trial on the negligence and strict liability claims, which are each a separate and independent basis for liability against [the tobacco company]. Common sense tells us that a tortfeasor who injures another person by negligence (or strict liability)-as in this case-can be held liable for those acts regardless of whether the tortfeasor's conspiracy to injure that person succeeded or failed.
. . . A retrial of the conspiracy claim against [the tobacco company] would have no effect on, and provide no basis for negating, the negligence and strict liability claims against [the
tobacco company] for which the jury found liability and damages (the latter would be the same with or without a conspiracy).Prentice I, 290 So.3d at 971 (Makar, J., dissenting).
In R.J. Reynolds Tobacco Co. v. Giambalvo, No. 2D2022-3194, 2024 WL 1824880, at *4 (Fla. 2d DCA Apr. 26, 2024), the Second District Court of Appeal opined,
Even where the evidence is sufficient to establish that an Engle plaintiff received statements from a tobacco coconspirator that omitted material information, in the absence of evidence that he both believed and acted upon those statements, "those statements could not have harmed the plaintiff" and the plaintiff has failed to establish reliance.(quoting Prentice II, 338 So.3d at 840) (first emphasis added). In Giambalvo, similar to the facts before us, there was no evidence-direct or circumstantial-that the deceased acted upon a statement by a tobacco coconspirator when he began smoking at an early age, or when he began smoking filtered cigarettes. "Given the supreme court's repeated statement that reliance requires a misrepresentation to have been 'received, believed, and acted upon,' [the court] conclude[d] that no proper view of the evidence in this case supports a verdict in the Estate's favor on its conspiracy to fraudulently conceal claim." Giambalvo, 2024 WL 1824880, at *4.
Persuasive, but not controlling, is Brown, 38 F.4th at 1323-24, where the court stated:
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 advertisements by Philip Morris or its coconspirators that she was exposed to and relied on. [Prentice II]. The evidence Brown presented at trial consisted of, for the most part, her general exposure to or mere awareness of Philip Morris's marketing campaign, which cannot establish reliance. See id. [at 838] ("[T]here can be no reliance . . .if the plaintiff would have acted the same way regardless of whether the defendant had made the misrepresentation."). When asked explicitly why she started smoking Marlboro cigarettes, 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 advertisement that influenced her decision to smoke. 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 Research Committee, or the Tobacco Institute, the entities at the center of the tobacco industry's disinformation campaign. The evidence, 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 misrepresentation."(emphasis added) (quoting Prentice II, 338 So.3d at 838). Following consideration of these authorities, we now address the parties' arguments on remand.
1. Did Plaintiff adduce sufficient evidence of detrimental reliance as to the fraud and conspiracy claims?
Philip Morris argues that the trial court erred in denying its motions for directed verdict and to set aside the verdict on Plaintiff's fraud and conspiracy claims because Plaintiff adduced insufficient evidence to prove the elements of detrimental reliance and legal cause. We agree.
Even where the evidence is sufficient to establish that an Engle plaintiff received statements from a tobacco defendant that omitted material information, in the absence of evidence that Plaintiff both believed and acted upon those statements, "those statements could not have harmed the plaintiff" and Plaintiff has failed to establish reliance. Giambalvo, 2024 WL 1824880, at *4 (quoting Prentice II, 338 So.3d at 840).
Here, there is testimony that Mr. Chadwell collected Marlboro Man items and only smoked Marlboro cigarettes. However, this testimony alone does not show that Mr. Chadwell relied on a statement or misstatement by Philip Morris to his detriment. Simply receiving promotional products by a rewards program, without more, is insufficient to prove detrimental reliance. See Prentice II, 338 So.3d at 838 ("[R]eliance requires the plaintiff to have 'received, believed, and acted upon' a misrepresentation ...."). The evidence in the record before this Court, including deposition testimony, does not identify Mr. Chadwell's reliance on any misleading or false statement or collection of statements made by Philip Morris addressing the health effects or addictiveness of smoking cigarettes, which either concealed or omitted material information about the health effects or addictiveness of smoking cigarettes.
Plaintiff, on the other hand, argues that Prentice II did not change the nature of reliance, but merely clarified that reliance must be on a statement or statements. She contends that Prentice II does not require reliance on a particular statement, does not require that the statement itself concern the health effects or addictiveness of smoking, and does not require that the statement be verbal or written. Plaintiff asserts that reliance on images conveying a message is sufficient.
With that in mind, Plaintiff presented evidence that Mr. Chadwell always smoked Marlboro cigarettes, owned a Marlboro hat, and he smoked Marlboro reds, then later switched to "lights." Mrs. Chadwell testified that most of the children in their high school smoked Marlboros. This does not go to the issue of whether Mr. Chadwell was misled about the health effects of smoking and cannot be counted as "reliance" as set forth in Prentice II. There was, however, passing testimony that Mr. Chadwell switched to filtered cigarettes instead of quitting. Mrs. Chadwell testified that Mr. Chadwell switched from Marlboro filtered to Marlboro light cigarettes because he thought-like she and others did-that light cigarettes with lower tar and nicotine would be better for them. Plaintiff asserts that pursuant to Prentice II, this still satisfies the reliance element of the counts for fraudulent concealment and conspiracy to fraudulently conceal, and that this court should affirm the trial court's denial of Philip Morris's motion for a directed verdict on those counts.
We disagree that this brief testimony supplies sufficient evidence of reliance. As the Florida Supreme Court has instructed,
The only way for an Engle progeny plaintiff to prove reliance (and therefore causation) is to show that he received, believed, and acted upon the statements that omitted the material information. Otherwise, the tobacco defendants' omission of information from those statements could not have harmed the plaintiff. It could not be said that the defendants' fraudulent conduct deceived the plaintiff.Prentice II, 338 So.3d at 840 (first emphasis added). The statement that Mr. Chadwell switched from Marlboro filtered to Marlboro light cigarettes because he thought that light cigarettes with lower tar and nicotine would be better for him is insufficient proof of reliance on tobacco company statements that concealed information that lower tar and nicotine did not reduce any of the dangerous effects of smoking.
In Cuddihee, according to family witnesses, the decedent switched to low-tar Merits after developing a cough and discovering what he believed to be a more healthful, less-addictive smoking alternative. Cuddihee, 338 So.3d at 447. The Cuddihee decedent's former wife attributed his switch to low-tar Merits because they were "a lighter cigarette, thinking it did not have all the tar and nicotine that the regular full strength had." Id. In this respect, Chadwell's evidence of reliance is similar, however the record facts in Cuddihee provide a much more explicit basis for Prentice II reliance than in Plaintiff's case, and under the Prentice II standard, Plaintiff's reliance evidence is thin at best.
After a thorough examination of the record on appeal, we conclude that Plaintiff failed to present sufficient evidence that Mr. Chadwell "received, believed, and acted upon" a statement by Philip Morris that could have "caused [him] to form a false belief about the health effects or addictiveness of smoking cigarettes" pursuant to Prentice II. As such, we reverse and remand in part for entry of judgment in Philip Morris's favor on the fraud and conspiracy claims.
2. Are the fraud claims inextricably intertwined with the strict liability and negligence claims?
Philip Morris contends that it is entitled to a new trial on all claims -negligence, strict liability, and conspiracy to fraudulently conceal - arguing that the compensatory damages issues are inextricably intertwined with the fraud claims. In other words, Philip Morris argues that all the issues depend on determining why Mr. Chadwell started to smoke and continued to smoke long enough to develop lung cancer. Philip Morris argues that the intentional tort fraud claims required the jury to determine what part of Mr. Chadwell's smoking was as a result of his informed choice versus his detrimental reliance, while the comparative fault determination required the jury to weigh the competing reasons why Mr. Chadwell smoked-his own choice or addiction.
In response to the tobacco company's identical arguments in Duignan III and Giambalvo that all claims were inextricably intertwined, those courts concluded that a new trial was not warranted. The Duignan III court noted, "we do not believe that the fraud claims are intertwined with the other claims of liability and comparative negligence. As the dissent in Prentice I explained, negligence and strict liability are separate and independent causes of action from the fraud claims[.]" Duignan III, 370 So.3d at 984.
The Giambalvo court similarly concluded:
Because the trial court should have granted Reynolds' motion for directed verdict on the conspiracy to fraudulently conceal claim, we consider Reynolds' arguments that the negligence, strict liability, and conspiracy to fraudulently conceal claims are inextricably intertwined such that a new trial is required on the remaining two claims. As we did in Philip Morris USA Inc. v. Duignan (Duignan III), 370 So.3d 978, 984-86 (Fla. 2d DCA 2023), we conclude that a new trial is not warranted. The conspiracy claim is independent from the negligence and strict liability claims. See id. at 984 (quoting R.J. Reynolds Tobacco Co. v. Prentice (Prentice I),
290 So.3d 963, 971 (Fla. 1st DCA 2019) (Makar, J., dissenting)).Giambalvo, 2024 WL 1824880, at *4 (footnote omitted). We also conclude that the strict liability and product liability issues are not inextricably intertwined with the intentional fraud and conspiracy issues. Those verdicts remain intact despite our reversal of the fraud and conspiracy counts, and a new trial on all issues is not warranted.
3. Compensatory damages.
Because we are reversing the trial court's denial of Philip Morris's motion for a directed verdict on the intentional tort claims of conspiracy and fraud, it follows that Plaintiff's damages on the negligence and strict liability claims must be reduced by Mr. Chadwell's 30% comparative fault as found by the jury. See, e.g., Brown, 38 F.4th at 1316 (setting aside plaintiff's jury verdicts for fraudulent concealment and conspiracy to fraudulently conceal due to insufficient evidence pursuant to Prentice II and affirming plaintiff's jury verdicts for her negligence and strict liability claims and remanding case with instruction that lower tribunal reduce plaintiff's damages by her comparative fault as jury found in its verdicts). In Marsh v. R.J. Reynolds Tobacco Co., 268 So.3d 727, 728 (Fla. 4th DCA 2018), the Fourth District Court of Appeal determined that the plaintiff's compensatory damages award was not subject to a comparative negligence reduction when the jury finds for a plaintiff on the intentional tort claims, relying on Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294, 305 (Fla. 2017). In Schoeff, the Florida Supreme Court held that when an Engle progeny case contains both negligence and intentional tort claims and when the jury has found for the plaintiff on an intentional tort claim, then the compensatory damages award cannot be reduced based on the plaintiff's percentage of fault, unless the plaintiff waived the intentional tort exception. 232 So.3d at 305. In Marsh, however, the defendant tobacco company cross-appealed and argued the reduction was still proper because the trial court erred in denying its motion for directed verdict on the intentional tort claims. 268 So.3d at 728. The Fourth District nevertheless agreed with the plaintiff, and reversed and remanded the case to the trial court on the direct appeal. Id.
The waiver exception is inapplicable here.
Here, as we are reversing the trial court's ruling on the intentional tort claims of fraud and conspiracy to commit fraud, it follows that the Plaintiff's compensatory damage award be reduced accordingly. Brown, 38 F.4th at 1316. We thus remand with the instruction that the compensatory damages award be reduced by the percentage of Mr. Chadwell's comparative fault.
Conclusion
Based on the foregoing, we reverse the final judgment in part and remand for entry of a directed verdict in favor of Philip Morris on Plaintiff's fraud and conspiracy claims because Plaintiff adduced insufficient evidence to prove the elements of detrimental reliance and legal cause under the Prentice II standard. We affirm the jury verdicts for Plaintiff's negligence and strict liability claims and remand with the instruction that the trial court reduce Plaintiff's damages by Mr. Chadwell's 30% comparative fault as the jury found in its verdict. We affirm the remainder of the final judgment.
Based on this resolution, we decline to reach the remaining claim.
Affirmed in part, reversed in part, and remanded.