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Florida Third DCA affirms multi-million verdict against tobacco company in Engle-progeny tobacco lawsuit

On July 15, 2020, in R.J. Reynolds Tobacco Company v. Rouse, No. 3D19-0629, the Florida Third DCA affirmed a trial court ruling denying the defendant tobacco company’s directed verdict motion in a Engle-progeny tobacco case. The directed verdict motion at issue was related to the plaintiff’s claim that the defendant conspired to commit fraudulent concealment of the dangers of smoking.  The defendant argued that the plaintiff had failed to prove individual detrimental reliance at trial, as required for this claim.  Quoting from Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1106 n.6 (11th Cir. 2018), the Third DCA stated that under Florida law  “[a] claim for conspiracy to fraudulently conceal requires proof that the defendant and others agreed to do an unlawful act or to do a lawful act by unlawful means, an overt act was done to further the conspiracy, and the plaintiff[] w[as] damaged as a result.” The Third DCA reasoned that because the Engle class findings conclusively established that RJR and other Engle defendants 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, to prevail on his conspiracy claim the plaintiff was only required to show that he relied to his detriment on a misapprehension concerning a material fact that RJR and other co-conspirators had concealed about the health effects and/or addictive nature of smoking, and that his reliance was a legal cause of his coronary disease. The Court also noted that “Florida courts have long recognized that to prevail on a conspiracy claim in an Engle-progeny case, a plaintiff does not have to categorically demonstrate reliance on a specific statement from RJR or another co-conspirator made in furtherance of their agreement, citing Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426, 440-41 (Fla. 2d DCA 2017), Philip Morris USA Inc. v. Putney, 199 So. 3d 465, 469 (Fla. 4th DCA 2016), disapproved of on other grounds by Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018), R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 766 (Fla. 4th DCA 2016), and Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196, 1211 (11th Cir. 2020). The Court found sufficient evidence of detrimental reliance from the testimony of the plaintiff about his  exposure to the tobacco companies’ pervasive cigarette advertisements in general, including advertisements concerning filtered cigarettes.