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Florida Third DCA concludes that Florida’s statute of repose barred fraud claims by plaintiff in non-Engle tobacco case

On September 22, 2021, in Philip Morris USA Inc. v. Principe, No. 3D20-875, the Florida Third DCA reversed a jury verdict and final judgment for the plaintiff in a non-Engle tobacco case after determining that the plaintiff’s claims were time-barred by Florida statute of repose for fraud. The plaintiff in this case claimed, and the jury determined, that the defendant tobacco manufacturer made fraudulent misrepresentations and fraudulently concealed the health hazards for cigarettes. However, Florida’s statute of limitations for fraudulent acts is only four years, see Fla. Stat. § 95.11(3)(j), and even though the SOL period does not start running until the wrongdoer’s acts were or should have been discovered, Fla. Stat. § 95.031(2)(a) provides as a statute of repose that a fraud action must in any event be begun within 12 years after the date of the commission of the alleged fraud. The Third DCA noted that Florida’s Supreme Court has clarified that “the date of the commission of the alleged fraud” in the fraud repose statute refers not to the date that the fraud cause of action accrued, but rather, to the date of the defendant’s “wrongful conduct.” Hess v. Philip Morris USA, Inc., 175. So. 3d 687, 698 (Fla. 2015).To prove a fraudulent misrepresentation claim, a plaintiff must also generally establish that: (i) the defendant made a false statement of material fact; (ii) the defendant knew or should have known the representation was false; (iii) the false representation was made with the intent that it would induce the plaintiff to act; and (iv) the plaintiff suffered resulting damages in reliance upon the representation. Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010). The misrepresentations and concealment at issue in this case occurred in the 1970’s and 1980’s. Nevertheless, the parties agreed, and the Third DCA limited its focus, to the issue of whether the defendant engaged in wrongful conduct during the twelve-year repose period beginning on November 6, 2005, and ending on November 6, 2017, the date the plaintiff filed his lawsuit. The plaintiff alleged that two acts of fraud occurred during this period. First, the plaintiff alleged that deposition testimony of one of the defendant’s corporate officers in an unrelated case constituted qualifying wrongful conduct because he claimed that filtered cigarettes and low-tar cigarettes reduced the risk of cancer. The First DCA agreed that these statements were knowingly false but concluded that they did not satisfy the statute of repose because the deponent did not intend to induce anyone to act on them. In other words, the element of an intent to induce reliance had to occur in connection with the statements to qualify them under the statute of repose. Although the plaintiff argued that the Florida Supreme Court ‘s Hess decision did not require an intent to reduce reliance, the First DCA disagreed with the plaintiff’s interpretation of Hess, noting that a false statement in the abstract, even if knowingly made, does not constitute fraud and that what makes a false statement fraudulent is the declarant’s intent that others rely upon it. The plaintiff alternatively argued that the defendant’s continued sale of filtered cigarettes in the statute of repose period satisfied the statute, but the Third DCA concluded that at the time of these sales any fraud associated with prior statements by the defendant had already been adequately disclaimed.

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