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TALLAHASSEE, Fla. (Legal Newsline) - A decision by the Florida Supreme Court requiring tobacco plaintiffs to identify specific statements that convinced them to smoke will make it “virtually impossible” for such cases to succeed in the future, a dissenting justice said.
The March 17 decision in Prentice v. R.J. Reynolds resolved a split among Florida appellate courts over the evidence required to prove reliance, a necessary element of so-called Engle progeny cases where basic facts such as the tobacco industry’s history of misleading advertising are accepted as proven before trial begins.
Some courts had allowed jurors to infer reliance from evidence cigarette makers failed to disclose the dangers of smoking. But the Florida Supreme Court rejected that reasoning, saying long-established common law of fraud requires plaintiffs to point to specific statements the defendants made that they relied upon to their detriment.
“No statements, no deception, no causation,” the court said in a majority opinion.
The Engle cases stem from a class action that resulted in a jury verdict for the plaintiffs in 1999 and a subsequent damages award of $145 billion. The Florida Supreme Court reversed the verdict and decertified the class in 2006 because of the need to prove individual damages, but in what became known as Engle III allowed plaintiffs who got sick before a cutoff date in November 1996 to use the findings in the first trial in their own cases.
John Price sued after being diagnosed with lung disease from smoking multiple packs of cigarettes a day. The lawsuit was continued by Linda Prentice after his death and the jury awarded $6.4 million in damages.
R.J. Reynolds appealed, saying the jury was improperly instructed to find for the plaintiff if Price relied “upon the conspiracy to withhold health information or information regarding addiction” to make the decision to smoke. Reynolds sought instructions requiring the jury to identify “a statement that concealed or omitted material information” about the health effects of smoking.
The First District Court of Appeals agreed with Reynolds and vacated the judgment. The Florida Supreme Court upheld the decision, in the process tightening the standards for future Engle progeny cases.
Prentice argued the proper question is whether Price would have smoked had the tobacco companies informed him of the risks. But that isn’t reliance, the high court ruled. The tobacco companies didn’t have a “freestanding disclosure obligation,” the court said, just the common law duty not to withhold important information if they did speak.
Plaintiffs don’t have to identify a false statement, the court said, but merely one that is misleading because it conceals or omits material information. The key difference is juries used to be able to reach a decision based on silence by the tobacco companies, the court said, but now must at least base their decision on “statements that are misleading by omission.”
The court rejected the trial judge’s jury instructions, saying “we do not know what it means to rely on a conspiracy, and we doubt that the jury did, either.
“The jury here could reasonably have been misled into finding liability based on mere nondisclosure, without connecting that nondisclosure to Price’s injury,” the court concluded.
The court declined to revisit the original Engle rulings, saying it would “neither endorse them nor question their correctness.” But the majority went on to criticize the reasoning in a portion of the Engle III ruling as “hardly self-evident,” saying it was adopted as “pragmatic solution” to decertifying the class action “without wasting the year-long Phase I proceedings.”
In a dissent, Justice Jorge Labarga said the decision “disturbs decades of settled law regarding Engle progeny litigation and injects uncertainty” into the remaining cases.
Until this decision, she said, jurors could “infer reliance” based upon the “tobacco industry’s pervasive advertising and creation of a false controversy about the risks of smoking,” without actually identifying any specific statements the smoker relied upon. Appellate courts rejected the alternative, she wrote, until the First District “inexplicably made a marked shift” toward a tougher requirement in 2018.
“By requiring reliance on a specific statement, the majority has removed all permissible inferences of fact concerning the causal relationship between the tobacco industry’s advertisement campaigns and the smoking decisions of Engle progeny plaintiffs,” he said. The decision “made it virtually impossible for Engle plaintiffs to maintain a fraudulent concealment claim.”