Verdict: FROGEL, SHAN V RJ REYNOLDS TOBACCO COMPANY

• 
• 
• 
• 

						
                                
Preview
                                Filing # 86046770 E-Filed 03/07/2019 03:33:40 PM

IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN

AND FOR PALM BEACH COUNTY,
FLORIDA

CASE NO.: 50 2007 CA 023246 AI
SHAN FROGEL, as Personal Representative
for the ESTATE of BETTE J. CASH,
Plaintiff,
vs.

R.J. REYNOLDS TOBACCO COMPANY, et ai.,

Defendants.

1
/

PHILIP MORRIS USA INC.’S MOTION FOR A DIRECTED VERDICT
ON PLAINTIFF’S CLAIMS FOR FRAUDULENT CONCEALMENT
AND CONSPIRACY TO COMMIT FRAUD BY CONCEALMENT
MADE AT THE CLOSE OF PLAINTIFEF’S CASE IN PHASE T
Defendant Philin Morris USA Inc. (‘PM USA”) resnectfullv reanests that the Court
direct a verdict in its favor on Plaintiff’s claims for fraudulent concealment and conspiracy to

commit fraud by concealment.’

First, PM USA is entitled to a directed verdict on Plaintiff's fraudulent concealment
claim because Plaintiff cannot establish that Bette Cash relied to her detriment on any statement
by PM USA that concealed or omitted material information about the health risks or addictive
nature of cigarette smoking. The First District in R.J. Reynolds Tobacco Co. v. Whitmire, 2018
WL 661568 (Fla. Ist DCA Dec. 18, 2018), recently held that a directed verdict should be entered
where an Engle progeny plaintiff fails to offer evidence that they “relied on any false information

disseminated by the tobacco company.” Jd. at *2, *4, That is the case here. No witness here

' Defendants incorporate by reference the arguments set forth in its concurrently-filed

motions

CHEN. DAIAARECACU AAIINTY Cl CUADAND ANFY FLED N2IN7INNAA N2.22-AN DAA
PILL. PAL BLAU VUUINE TT, FL, OHI. DUUN, ULLIAN, YoruriZu lg Ul.u0.tU FIVEwas able to identify any statement of PM USA that Ms. Cash allegedly relied upon to her
detriment. Instead, the evidence established conclusively that Ms. Cash would not have quit in
time to avoid her diseases and death no matter what information anyone would have given her.
Accordingly, even accepting all of the fact testimony as true, there is not anywhere close to
sufficient evidence to support the requirement that Ms. Cash relied on a statement by PM USA
when beginning or continuing to smoke its cigarettes.

Moreover, even if Plaintiff could establish reliance on some statement, he failed to meet
his burden of proving that such reliance was detrimental. Plaintiff failed to offer any proof that
Ms. Cash’s alleged reliance caused her lung cancer. In fact, Plaintiff conceded during his
opening statement that this critical question cannot be answered: “there is just no way without
speculating to say that [Ms. Cash] wouldn’t have gotten lung cancer if she had succeeded in her
quitting in the ‘70s or ‘80s.” Trial Tr. at 961. Plaintiff also failed to meet his burden of proving
when Ms. Cash needed to quit to avoid her injuries. Plaintiff’s sole expert witness, Dr.
Cummings, is not a medical doctor and thus is not qualified to provide any evidence sufficient to
meet Plaintiff's burden. And even if Dr. Cummings were qualified, he actually testified that that
Ms. Cash not capabie of quitting in time io avoid her injuries and death. Moreover, Ms.
Cash’s daughter, Cassandra Dandenau, testified that Ms. Cash was completely addicted and that
she did not know of anything Ms. Cash could have been told anything to get her to quit once she
became addicted. Trial Tr. Vol. 20 at 2786. And the undisputed evidence is that Ms. Cash
became addicted the same year she started smoking — i.e., in 1952. See Trial Tr. Vol. 16 at 2151
(Dr. Cummings testifying that Ms. Cash was addicted by 1952); Trial Tr. Vol. 18 at 2438, 2483.

For all of these reasons, Plaintiff’s fraudulent concealment claim fails as a matter of law.Second, PM USA is entitled to a directed verdict on Plaintiff's conspiracy claim. This
conspiracy claim is entirely derivative of his fraudulent concealment claim and therefore fails for
the same reasons his concealment claim fails. There also is no evidence that Ms. Cash relied to
her detriment on a statement concealing or omitting material information that was made pursuant
to, and in furtherance of, a conspiratorial agreement, let alone that such a statement or omission
proximately caused his injury and death. In fact, if Plaintiff's evidence is taken as true, no
statement made by anyone after she became addicted in 1952 could have allowed Ms. Cash to
quit, and it is undisputed that the alleged agreement to conceal did not start until December 1953.
See Final Jury Instructions, No.15.

Accordingly, the Court should direct a verdict in PM USA’s favor on Plaintiffs claims
for fraudulent concealment and conspiracy to conceal.

ARGUMENT

A directed verdict should be granted when there is no view of the evidence that could

support a verdict for the non-moving party, i.e., no reasonable jury (in the trial court’s view)

could render a verdict for that party. See, e.g., Lester’s Diner II, Inc. v. Gilliam, 788 So. 2d 283,

 

. To survive a motion for a directed verdict, the piaintift must have put
forth evidence during the trial that would allow a reasonable jury to conclude that the plaintiff
has “prove[n] the essential elements of [his or her] claim[s].” Anesthesiology Critical Care &
Pain Mgt. Consultants v. Kretzer, 802 So. 2d 346, 351 (Fla. 4th DCA 2001). If the plaintiff fails
to meet this burden, the Court should enter a directed verdict for the defendant. See Morgan

Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So. 2d 1124, 1131 (Fla. 4th DCA 2007).I. PM USA IS ENTITLED TO A DIRECTED VERDICT ON PLAINTIFF’S
FRAUDULENT CONCEALMENT CLAIMS

A. Plaintiff Failed To Offer Sufficient Evidence That Ms. Cash Relied To Her
Detriment On A Concealment Or Omission By PM USA

1. Plaintiff Failed To Offer Sufficient Evidence Of Detrimental Reliance
On A Statement That Was False Or Misleading Due To Concealment
Or Omission Of Material Facts
Detrimental reliance is a necessary element of every fraudulent concealment claim. See,

e.g., Soler v. Secondary Holdings, Inc., 771 So. 2d 62, 69 (Fla. 3d DCA 2000) (“The law .. . is

clear that a claim of fraudulent misrepresentation and/or concealment requires proof of
Geirinenial reliance Gh a Material mistepresentation.”) (Citing Jonson v. Davis, 480 So. 2a 625,
627 (Fla. 1985)) (emphasis added); Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA
1997). “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.”
Humana, Inc. v. Castillo, 728 So. 2d 261, 265 (Fla. 2d DCA 1999).

This requirement applies with full force in Engle-progeny cases: “Engle-progeny
plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent
concealment claims.” Hess v. Philip Morris USA Ine, 175 So, 3d 687, 698 (Fla, 2015)
(emphasis added); see also, e.g., R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049, 1051
(Fla. 4th DCA 2013) (“{F]raud cannot be committed absent detrimental reliance by the
plaintiff.”) (quotations omitted). Indeed, the Florida Supreme Court created Engle-progeny suits
for the express purpose of resolving “highly individualized” elements, such as “individualized
causation.” Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006); see also id. at 1263
(holding that Phase I findings did not resolve individualized issues of “legal causation and

reliance” and “did not determine whether the defendants were liable to anyone”); Philip Morris

USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla. 2013) (“the Phase I conduct findings . . .were ‘inadequate to allow a subsequent jury to consider individual questions of reliance and legal

cause’”) (quoting Engle, 945 So. 2d at 1255)).
Applying these well-established principles, an en banc panel of the Fourth District
affirmed its panel reversal of judgment on a plaintiff’s fraud-based claims because the trial court

failed to adequately instruct the jury about the element of detrimental reliance. See R.J. Reynolds

Tobacco Co. v. Calloway, 201 So. 3d 753, 766 (Fla. 4th DCA 2016); rev. denied, No. SC16-
1937 (Fla. March 16, 2017). The court explained that:

Engle reiterated the elements to be proven for fraudulent
concealment and conspiracy to commit fraudulent concealment
claims. A plaintiff still must prove detrimental reliance upon the
[defendant’s] misinformation. . . . The instructions were
insufficient for the jury’s consideration of the fraudulent
concealment and conspiracy to commit fraudulent concealment
claims. Because the detrimental reliance element was not covered
by the instructions given, its omission prejudiced the tobacco
companies’ defense.
Id. at 765-66 (emphasis added) (internal citation and quotations omitted).

Courts in several Engle progeny cases have directed verdicts in the defendants’ favor
after concluding that no reasonable jury could find detrimental reliance based on the evidence
presented at trial. indeed, just this week, Judge Rodolfo Ruiz in Miami-Dade County granted a
motion for directed verdict for this reason. See Order Granting Defs. Mot. for J. on Pl.’s Claims

for Fraudulent Concealment and Conspiracy to Fraudulently Conceal, Harewood, No. 07-46331
CA 01 (Fla. 11th Cir. Ct.) (Ex. A); see also, e.g., Oct. 25, 2010 Trial Tr. at 2639-40, Rohr, No.
07-CV-34472 (Fla. 17th Cir. Ct.) (“THE COURT: . . . Where is the evidence of reliance? I have

evidence the statements were made .... But no evidence that he relied upon them. ... The

motion [for directed verdict] is granted.”) (Ex. B); Aug. 11, 2009 Trial Tr. at 3028-29, Barbanell,

Noa N7_26727 (Bla 17th Cie Ot) (THR COTIDT. Van mnot raly an to vane datrimant an

ANG. Ui-oUr 7) Wad. pul Ci, Coy tar CU... Ou Tus: rey On, ow Your Glalmeny, Onstatements made. There has been no evidence of that... . There’s been no evidence of

reliance. . .. The motion’s granted.”) (Ex. C); Order Granting R.J. Reynolds Tobacco Co.’s Mot.
for a Directed Verdict on Pl.’s Claims for Fraud and Conspiracy, J.L. Brown, No. 2007-CV-
4646(19) (Fla. 17th Cir. Ct. May 22, 2009) (Ex. D); see also Feb. 4, 2014 Trial Tr. at 3491,
Gonzalez, No. 09-53850 CA 23 (Fla. 11th Cir. Ct.) (“THE COURT: ... as I understand the case
law and understand what has been proven here—or has been [merely] argument, I am granting
the directed verdict as to the fraud by concealment [and conspiracy claims].”) (Ex. E).

This Court should do the same. Plaintiff was required to “show [Ms. Cash]. . . would not
have entered into the transaction [with Defendants] had the [concealed] information been
disclosed.” Humana, 728 So. 2d at 265; see also, Hess, 175 So. 3d at 698; Buonomo, 138 So. 3d
at 1051 (“[FJ]raud cannot be committed absent detrimental reliance by the plaintiff.”) (citation
omitted). Plaintiff failed to present any evidence from which a reasonable jury could reach that
conclusion.

Plaintiff, for example, could not identify any statement by PM USA or any other tobacco
company that Ms. Cash had relied upon. Likewise, Ms. Cash’s daughter, Cassandra Dandenau,
testified:

Q. You never spoke with your mother about cigarette
advertising, correct?

A. We never discussed that.

2 And, likewise, vou don’t have any information about any

cigarette advertising your mom might have seen?
A. No.

Q. She never told you she relied on any cigarette
advertisements in making any of her decisions, did she?

A. She never specifically said anything like that.Q. Basically she never told you she relied on any cigarette
advertisements, isn’t that true?

A. She never said anything like that.

Trial Tr. Vol. 20 at 2783.” She further conceded:

Q. As far as you know, she never spoke directly to a
representative from a tobacco company?

A. As far as I know.

-Q. She never heard a verbal statement about smoking and
health by any cigarette manufacturer, to your knowledge?

A. Not to my knowledge.

Q. She never read or received any written materials directly
from a tobacco company that discussed cigarette smoking?

A. Not to my knowledge.

Q And your mother never mentioned to you that she heard,
read or saw any statement by Philip Morris USA?

A. Not to my knowledge.
Trial Tr. Vol. 20 at 2785. Ms. Cash’s cousin, Rebecca Rider, similarly testified that she never
had a conversation with Ms. Cash regarding cigarette advertising. Trial Tr. Vol. 19 at 2622-23.3

Indeed rather than ectahlich reliance Plaintiff’ s evidence establishes the annoacite

ANGCCG, Taner taut CStacuoa: Teausce, f aanen Cpposhe.

Plaintiff contends that Ms. Cash was always attempting to quit smoking. No witness here was
able to identify any statement of PM USA that Ms. Cash allegedly relied upon to her detriment.

Instead, the evidence established conclusively that Ms. Cash would not have quit in time to avoid

her diseases and death no matter what information anyone would have given her. Accordingly,

? All references to the trial transcript are attached in Exhibit F.

3 Consistent with this testimony, Dr. Cummings testified that the only statement Ms. Cash saw
was the package itself. Trial Tr. at 2212. Plaintiff, however, failed to offer any evidence that the

nackaaec amitted or concealed material infarmatinn and therefare reliance nunan ctatamente an
pocsages Clune Mhavcrtas MiLGLELGULOLE GUE UCLCAULE FUAKMKICU LPO GEGteHKECtS Olt

packages of cigarettes cannot satisfy t the requirement of. reliance.even accepting all of the fact testimony as true, there is not anywhere close to sufficient evidence
to support the requirement that Ms. Cash relied on a statement by PM USA when beginning or
continuing to cigarettes. As noted above, Ms. Cash’s daughter, Cassandra Dandenau, testified
that Ms. Cash was completely addicted and that she did not know of anything Ms. Cash could
have been told anything to get her to quit once she became addicted. Trial Tr. Vol. 20 at 2786.
And the undisputed evidence is that Ms. Cash became addicted the same year she started
smoking — i.e., in 1952. Trial Tr. Vol. 18 at 2438, 2483. Likewise, Ms. Rider testified that Ms.
Cash never thought smoking was safe, thought all cigarettes were bad for her and was always
trying to quit. Trial Tr. Vol. 19 at 2622-23. Taking this testimony to be true, Ms. Cash did not
rely upon any statement that omitted or concealed material information when purchasing and
smoking PM USA brand cigarettes. To the contrary, she was smoking those cigarettes solely
because she was addicted to nicotine.

Furthermore, even if he had demonstrated reliance, Plaintiff failed to meet his burden of
demonstrating that this reliance was “detrimental,” as required by Florida law. See supra at 3-4.
Plaintiff failed to offer any proof that Ms. Cash’s alleged reliance caused her lung cancer.
Piaintift conceded during his opening statement that this question cannot be answered: “there is
just no way without speculating to say that [Ms. Cash] wouldn’t have gotten lung cancer if she
had succeeded in her quitting in the ‘70s or ‘80s.” Trial Tr. at 961. Nor could Plaintiff's lone
expert Dr. Cummings provide such evidence. To the contrary, he testified that Ms. Cash could
not quit smoking in time to avoid her injuries. Such testimony fails to establish that Ms. Cash’s
reliance upon any alleged fraud caused her lung cancer and death and therefore cannot establish

that any such reliance was “detrimental.” For this reason also, Plaintiff fails to meet her burdenof demonstrating detrimental reliance as a matter of law, and the Court should enter a directed

verdict in PM USA’s favor on Plaintiffs fraudulent concealment claim.

2. Plaintiff Cannot Overcome His Lack Of Evidence Of Reliance

a. Plaintiff Cannot Meet His Burden Through Inferences Or
Indirect Evidence

In the absence of any direct evidence that Ms. Cash detrimentally relied on a statement by
PM USA containing a concealment or omission, Plaintiff might argue that reliance can be
established indirectly based on PM USA’s misconduct. These arguments fail. Under Florida
law, reliance cannot be assumed or inferred from the fraud itself. See Morgan v. Canaveral Port
Auth., 202 So. 2d 884, 887 (Fla. 4th DCA 1967) (“It cannot be assumed that the appellants relied
to their detriment upon any act or omission on the part of the appellees.”); accord; Palmas Y

Bambu, S.A. v. E.l. DuPont de Nemours & Co., 881 So. 2d 565, 573 (Fla. 3d DCA 2004)

Af Ulin oe

 

neleat? ta An

WaIKEL LO UCI

     

advertising”); Kahler v. E.F. Hutton & Co., 558 So. 2d 144, 145 (Fla. 3d DCA 1990). To the
contrary, Florida law does not recognize the “fraud on the market” theory or similar theories
involving indirect proof. See, e.g., Morgan v. W.R. Grace & Co.-Conn., 779 So. 2d 503, 506
(Fla. 2d DCA 2000) (finding that plaintiff could not show reliance through “various documents
aimed at the general public . . . lulled the . . . public, including her, into a false sense of security
about the safety of... reclaimed land”).

The First District recently addressed this issue in the Engle context and confirmed that
“{Ijiability for fraudulent concealment cannot be shown without reliance on a false statement.”
R.J. Reynolds Tobacco co. v. Whitmire, 1D17-1986, 2018 WL 661568, at *2 (Fla. Ist DCA Dec.
18, 2018). “[T]Jhis cannot be shown through mere presentation of general evidence of the

plaintiffs life and behavior, where . . . that evidence gives no indication that the plaintiff reliedon any false information disseminated by the tobacco.” Jd. at 4. In Whitmire, plaintiff argued
that a smoker’s decision to smoke a filtered cigarette was itself sufficient evidence of reliance.
Id. at 3. The First District rejected this argument, explaining that evidence that the smoker
“believed filtered cigarettes were less harmful” was not sufficient without individualized

evidence showing that the smoker got that belief from a tobacco company:

Although evidence here suggested that the decedent believed filtered
cigarettes were less harmful, no evidence connected that belief to the
tobacco companies’ statements other than the word “filter.” The Engle
class was decertified because issues of causation involve highly
individualized findings. To hold that smoking filtered cigarettes or
viewing advertisements establishes sufficient evidence for a
fraudulent-concealment claim would eliminate the requirement that
plaintiffs must individually show how they relied on the tobacco
companies’ statements. Appellee’s argument that knowledge about the
addictiveness of nicotine generally shows that smokers are better able to
quit does not show that the decedent relied to her detriment on any
tobacco company’s statement.

Id. at *4 (emphasis added).

The same principles apply here. Plaintiff failed to proffer any evidence of detrimental
reliance by Ms. Cash on any misleading statement by PM USA. Because proof of fraud must be
based on such evidence of individualized reliance — not on general evidence of tobacco industry
statements — he has not met his burden.

Plaintiff might contend that Ms. Cash’s reliance can simply be inferred under RJ.

Reynolds Tobacco Co. v. Martin, 53 So. 2d 1060 (Fla. Ist DCA 2010). Martin, however, does

 

Martin is contrary to the long line of Florida authority requiring direct proof of individual

reliance that “cannot be satisfied by assumptions.” Humana, 728 So. 2d at 265. As this Court

4 PM USA contends that Martin was wrongly decided, but, in any event, for the reasons

expressed herein, Martin does not apply to the facts and circumstances of this case.

10recognized in Palmas, reliance cannot be demonstrated solely through proof that defendant’s
fraud affected the “body of public information.” 881 So. 2d at 573. Yet that is precisely what
the First District decision in Martin allows -- an inference from a general pattern of misleading
statements that the smoker relied to his or her detriment on such statements despite the absence

of evidence of actual reliance. Nothing about Engle changes the form of proof required to prove

reliance in fraudulent concealment cases, see Engle, 945 So. 2d at 1263, and Martin therefore
cannot satisfy Plaintiffs burden of proving reliance.®
In addition, the First District expressly rejected a broad reading of Martin in Whitmire:

“In Martin, we did not state which facts were sufficient to prove reliance; we held only that
reliance can be proven by circumstantial evidence.” Jd. at *4. As the court explained that,

“{w]hile Martin holds that detrimental reliance on false statements can be proved through

inference,” “it cannot be read to circumvent the requirements of Engle, Douglas, and Hess that

plaintiffs must prove such reliance based on some evidence to support the inference and the

supreme court’s holding on the merit of circumstantial evidence to support liability.” Id. The

(Footnote continued from previous page]

See also Engle, 853 So. 2d at 446 n.10 (“Florida law bars any presumption of reliance in
cases involving fraud”), aff'd in part and quashed in part on other grounds, Engle, 945 So. 2d
1246; Palmas, 881 So. 2d at 568 (rejecting “fraud on the market” and other similar theories of
indirect proof); W R. Grace & Co.-Conn., 779 So. 2d at 506 (rejecting plaintiffs reliance
argument that “various documents aimed at the general public . . . lulled the ... public,
including her, into a false sense of security about the safety of such reclaimed land”); Canaveral
Port Auth., 202 So. 2d at 887 (“It cannot be assumed that the appellants relied to their detriment
upon any act or omission on the part of the appellees. . . .”).

° Indeed, the Third District reiected the argument that Martin allows an Enele progeny
plaintiff to establish detrimental reliance based solely upon generic evidence in Virginia
Williams. In that case, after the trial court denied leave to add punitive damages claims based on
a lack of reliance, plaintiff argued on appeal that she had proffered sufficient evidence for the
jury to infer reliance under Martin. See Answer Brief/Initial Brief on Cross-Appeal of
Appellee/Cross-Appellant at 62-68, R.J. Reynolds Tobacco Co. v. Virginia Williams, No. 3D13-
2099 (Fla. 3d DCA) (filed Mar. 27, 2014) (Ex. G). On de novo review, the Third District found
that plaintiff's arguments had “no merit.” _R.J. Reynolds Tobacco Co. v. Virginia Williams, No.

3D13-2099, 2014 WL4344369, at *1 (Fla. 3d DCA Sept. 3, 2014).

11court further repudiated the notion that the circumstantial evidence could consist of anything
other than that which was capable of “establish[ing] individual reliance by the plaintiff.” Id.
(emphasis added).

Moreover, the record does not support Martin’s application here. Reliance cannot be
inferred when it is contrary to the factual record: “[i]t is a well-settled principle that a fact
cannot be established by circumstantial evidence which is perfectly consistent with direct,
uncontradicted, reasonable and unimpeached testimony that the fact does not exist.” Alan &
Alan Inc. v. Gulfstream Car Wash, Inc., 385 So. 2d 121, 123 (Fla. 3d DCA 1980). That is the
case here. The direct evidence in this case contradicts, and thus bars, any inference that Ms.
Cash relied to her detriment on a statement by PM USA allegedly rendered misleading by an
omission. See supra at 6-7. In other words, the premise upon which Martin was founded does

not apply to the facts of this case.

b. Plaintiff Cannot Establish Reliance Through Inference
Stacking

Any attempt by Plaintiff to establish reliance through indirect evidence also would fail
because it would require multiple inferences stacked upon one another. To establish reliance in
the absence of direct evidence, Plaintiff would need the jury to infer that: (1) Bette Cash saw,
read or heard a statement from PM USA; (2) the statement was misleading due to omitted

information; (3) Ms. Cash received such statements before she was allegedly unable to stop

emaling sigarattac cantaining nicotine: (A\ Meo Cach wac miclad hy and ralied unan ench
Smivning Cigarcucs COmauuns mcoune, (tyaus, Cason Was Tusa OY, au teuea Upol, SUC

statements; and (5) Ms. Cash would not have smoked or would have quit smoking and avoided
her injury if not for the alleged concealment. There is no evidence to support any of these

myriad inferences. Indeed, some are absolutely irreconcilable with the evidence presented at

trial.

12The Florida Supreme Court has long recognized that, “if a party to a civil action depends
upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot
construct a further inference upon the initial inference in order to establish a further fact.”
Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960). The Court has recognized an
exception to this rule, but that exception applies only when the inferences preceding the final
inference are established to the exclusion of all other reasonable inferences. See id.; see also
Slitor v. Elias, 544 So, 2d 255, 257-58 (Fla. 2d DCA 1989) (in a case where a party attempted to
stack three inferences, holding that “[t]he critical issue is whether the [second inference] can be
elevated to the status of a fact to support the [third and] final inference”). “The rule that an
inference may not be stacked on another inference is designed to protect litigants from verdicts
based upon conjecture and speculation.” Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th
DCA 2008) (citation omitted).

Florida appellate courts therefore routinely reverse verdicts that are based on improperly
stacked inferences. See, e.g., id. at 939 (reversing a plaintiff's verdict because “plaintiff
presented only circumstantial evidence and relied upon impermissible inferences stacked upon
inferences”); Siitor, 544 So. Zd at 257-58 (reversing a piaintiff’s verdict because improperly
stacked inferences “did not provide sufficient evidence to support the final judgment against the
[defendant] sellers”); Green House, Inc. v. Thiermann, 288 So. 2d 566, 568 (Fla. 2d DCA 1974)
(motion for directed verdict should have been granted because a finding in plaintiff’s favor
required an inference that plaintiffs walked a path that traversed a “curb stop” and then a second
inference that the plaintiff tripped on the curb stop); see also Cohen v. Arvin, 878 So. 2d 403,
405 (Fla. 4th DCA 2004) (affirming summary judgment for defendant on plaintiff's conspiracy

fn rammit tartione intarfarancea with hucinace ralatinnchine claim “an tha hacic that tha claim
Ww COnimie wOru0us INCTercHCe Wiui Ousiliess TaduOnsmps Cain: On ult oasis ula ue Cian

13relied on impermissible inference stacking”); Koelling v. CSX Transp., Inc., 673 So. 2d 67, 67-
68 (Fla. 5th DCA 1996) (“We affirm the judgment for FPL because there is no evidence, absent
the stacking of conjectural inferences, that it was guilty of any causative negligence.”) (citation
omitted).

Here, not one of the many inferences that Plaintiff would need the jury to stack is capable
of being established to the exclusion of all other reasonable inferences. For example, it is
undisputed that smokers decide to smoke “for any number of reasons.” McLaughlin v. Am.
Tobacco Co., 522 F.3d 215, 225-26 (2d Cir. 2008); Philip Morris USA Inc. v. Douglas, 110
So. 3d 419, 432 (Fla. 2013). If there are a number of reasons for deciding to smoke—including
enjoyment, relaxation, or increased concentration—Plaintiff cannot benefit from any inference
that Ms. Cash’s decision to smoke was based on a statement omitting material information. This

is particularly so because the direct evidence in this case renders any such inference impossible.

Cc Evidence of PM USA’s Advertising Is Insufficient To Establish
Reliance

Plaintiff also cannot overcome his failure to offer proof of reliance by pointing out that
PM USA advertised the products Ms. Cash smoked. This argument would rely upon an
inference that Ms. Cash relied on those advertisements and should fare no better than any other
inference argument. See supra at 8-11. In addition, PM USA cannot be held liable for merely

exercising its right to advertise legal products. See Lorillard Tobacco Co. v. Reilly, 533 U.S.

595 5KE (INN): Cont Undenn Cac & Flan Carn vy Pub Sars Camm’n nf MV AATITS S87

S25, S83 UCU); Cent, Guason Gas & alec, Corp. vac. Sere. Comann op Na, 447 0
(1980). Moreover, Plaintiff must identify the specific statement that Ms. Cash read or heard and
was rendered misleading to him due to omissions. See supra at 5-11; see also Grills v. Philip

Morris USA Inc., 645 F. Supp. 2d 1107, 1124 (M.D. Fla. 2009) (fraud plaintiff must show

“precisely what statements were made in what documents or oral representations or what

14omissions were made’ and ‘the time and place of each such statement and person responsible for

making (or, in the case of omissions, not making) same’”) (quoting Ziemba v. Cascade Int’l,
Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)). Plaintiff cannot do so by simply pointing to a
statement that was advertising puffery or a statement suggesting that smoking was in vogue.’

B. Plaintiff Failed To Establish Facts Giving Rise To A Duty To Disclose

Separate and apart from Plaintiff’s burden to prove Ms. Cash’s detrimental reliance on a
statement rendered misleading by an omission, Florida courts uniformly hold that “[f]raud based

upon a failure to disclose material information exists only when a duty to make such disclosure

exists.” Friedman v. Am. Guardian Warranty Servs., Inc., 837 So. 2d 1165, 1166 (Fla. 4th DCA
2003); see also TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 880 (Fla. 4th DCA 2000) (“[The]
complaint failed to state a cause of action for fraud” because plaintiff “failed to allege any duty

to it on the part of the lawyers and accountants to disclose the alleged falsity of the financial

documents.”).
A duty to disclose of the type necessary to support a fraudulent concealment claim arises

when the parties have a fiduciary (or similar) relationship. See First Union Nat’l Bank v. Turney,

835 So. 2d 774, 778 (Fia. ist DCA 2003) é “A fiduciary" s deliberate witnnolding of material

information the fiduciary has a duty to disclose constitutes fraudulent concealment.”). Certain

7 Judge Streitfeld in Broward County, for example, made clear that Engle progeny plaintiffs

may not use advertisements alone to prove their claims for fraudulent concealment or conspiracy
to frandulently conceal, See Dec, 3, 2010 CMC Tr, at 57-58, In Re: Enole Progeny Cases

Tobacco Litig. (All Cases), No. 08- 80000 (19) (Fla. 17th Cir. Ct) (“THE COURT: The
advertising that was done by all these Defendants complied with the law. By the time he got
here, all the advertising had the warning on it. All of it. So, I don’t know that you can predicate
a claim of fraud based on the advertising if it complied with federal law.”) (Ex. H); Nov. 5, 2010
CMC Tr. at 50, In Re: Engle Progeny Cases Tobacco Litig. (All Cases), No. 08-80000 (19) (Fla.
17th Cir. Ct) (“THE COURT: There has to be something false or misleading about an ad. You
know and I know that the fraud claims are not predicated on—no iury has ever been given a case

where the fraud is based on an ad. It’s based on the industry statements.”) (Ex. I).

15cases (in contexts inapplicable here) have also found a duty when the parties have direct contact
in a transaction and certain other requirements are satisfied. See Nicholson v. Kellin, 481 So. 2d
931, 936 (Fla. 5th DCA 1985) (“[E]ven assuming that a party to a transaction owes no duty to
disclose facts within his knowledge or to answer inquiries respecting such facts, if he undertakes
to do so he must disclose the whole truth.”); Taylor v. Am. Honda Motor Co., 555 F. Supp. 59,
61 (M.D. Fla. 1982) (rejecting plaintiff's fraudulent concealment claim because parties were not
in privity).

Plaintiff has failed to put forth any evidence establishing circumstances giving rise to a
duty to disclose further information to Ms. Cash, and the Engle Phase I findings do not relieve
Plaintiff of that burden. See Engle, 945 So. 2d at 1267-68 (decertifying class because of
“ On February 14, 2014, Mrs. Williams moved to supplement the record

with a transcript of this hearing. On February 18, 2014, the Court granted that
motion, accepting the exhibits as the supplemental record. Because that was the
second record suppiementation, these documents are cited as “SR2” followed by
the page numbering used in the exhibit.44.) The court did not give any indication of its ruling at the hearing other than to
note it would later enter an order making a separate determination as to each claim.
(SR2:45, 52.) The next day, the court denied Mrs. Williams’s motion as to each
count without explaining its reasoning. (R5: 1141-42.)

Jury Selection

During jury selection, each side was given three peremptory strikes for the
main jury and one strike for the selection of the two alternates. RJR asked the trial
court to confirm there would be “no back striking of any kind into the main panel”
once the parties agreed to the six-juror main panel, and the trial court answered
affirmatively. (R23:877-78.) The parties initially agreed to a six-juror main panel
after RJR had used one of its strikes, and Mrs. Williams had not used any.
(R23:875-79.) The court then turned to the alternates, and each party used one
peremptory before two alternates were chosen. (R23:879-80.)

Betore the jury was sworn, however, RJR asked to backstrike into the main
panel. (R23:881.) The trial court rejected Mrs. Williams’s argument that RJR had
waived its right to do so, and RJR announced it was striking one of the jurors from
ihe panei. (R23:881-83.) After ciearing up confusion regarding how many sirikes
RJR would have left at that point, the trial court announced that it would
“temporarily” undo the peremptory strikes each party made to the jurors who had

a Mead taal tal le tet hole SII te a dete lah ee dette deledob tal laedalel
DEE COMSIGCLEU LOL allerate POSiUONS, DECAUSE WIE LSet SUCH JULOL Was HOW iil leto be on the main panel after the backstrike. (R23:883-87.) The trial court made it
crystal clear that the parties would still have the opportunity to redo those strikes.
(R23:885.) RJR objected that this was improper because the parties had used their
“alternate strike” on these two jurors, rescinded its back strike, and accepted the
panel subject to its objection. (R23:888-91.) After RJR declined the court’s
invitation to provide it with some law to support the objection, the court overruled
the objection, and the jury was sworn. (R23:888-94.)

Summary of Relevant Evidence from Trial

Mr. Williams was born in 1942 and started smoking by age fourteen, just
after the start of RJR’s conspiracy with other tobacco companies to fraudulently
conceal the dangers of smoking. (R27:1309; R34:2207, 2214.) In response to
growing public health information that cigarettes were deadly and addictive,
executives from RJR and the other major tobacco companies had convened a
meeting in late 1953 that spawned a 50+ year conspiracy to combat these messages
by denying the addictiveness and other dangers of smoking, asserting the link
between smoking and disease had not been proven and required more research, and
otherwise creating doubt about solid evidence regarding their product. (R31:1825-
67.) These companies clung to these goals even though they well knew from their
own exhaustive research that the nicotine in their cigarettes was as addictive as

Mel a la ll Ak la a at ad eld lee tlle ok lel al atoll
NerOlll alld COCaiNe alld Wal SMIOKINY Weir Cigarewes Caused aul Mailer OL Giscase.(R31:1821-24, 1858, 1907, 1908; R32:1950, 1961.) Indeed, they purposefully
designed their cigarettes in ways to ensure addiction, including manipulating
nicotine levels and adding other chemicals to make nicotine even more addictive.
(R31:1899-1902; R32:1950.) All the while, they could have followed through on
their false promises, as they had massive labs and limitless funding that could have
actually been committed to authentic and helpful research. (R31:1839-40.)
Through the conspiracy, RJR and its cohorts (1) made false public promises
that they cared about public health and would diligently research the safety of
cigarettes and remove any components they found harmful; (2) created sham
scientific bodies that were touted as impartial tobacco research centers but in fact
operated as industry mouthpieces to “fight science”; (3) employed tactics like
payments, research grants, infiltrating public health laboratories, and paying what
was essentially hush money to co-opt doctors and scientists to conduct and publish
“friendly research”; (4) manipulated the media to be more industry-friendly; (5)
issued profoundly misleading public statements, propaganda pieces, and media
interviews in which they denied smoking was hazardous, accused the federal
government (in order to blunt the Surgeon General’s reports on the hazards of
smoking) of misleading the American people, and generally invented their own
facts to hoodwink the public into believing it was safe to continue (or take up)

smoking; (6) disparaged scientific research and reports that linked cigarettes toaddiction and disease; (7) lied under oath to Congress about the addictiveness and
dangers of cigarettes; (8) published false articles about cigarettes under false
names; and (9) employed massive and deceptive advertising campaigns that
included sponsoring sporting events, paying movie stars to smoke, and generally
portraying smoking as glamorous, safe, and enjoyable in order to “normalize”
cigarettes and encourage the public to start and continue smoking. (R31:1772,
1773, 1775, 1786, 1796, 1802, 1821-1830, 1839-1844, 1853-65, 1881-94, 1905-
08; R32:1949-50, 1964.)

The industry’s campaign of denial created a culture in which smoking was
normalized, routine, and “everywhere” in the 1930s through as late as the 1970s.
(R31:1794, 1802.) Mrs. Williams’s expert testified to the “ubiquity of cigarette
advertising,” noting that in 1960, when Mr. Williams was 18, the average
American would have seen about 50 hours of cigarette advertisements on
television each year. (R31:1784; R32:1960.) During January 1967, for example, 87
network television programs were sponsored in whole or in part by cigarette
products. (R32:1958.) The pervasiveness of the industry’s campaign was
confirmed by an FTC report from 1967 that stated it was “virtually impossible for
Americans of almost any age to avoid cigarette advertising.” (R32:1960.) And this
occurred with the tobacco industry’s full knowledge that it was creating doubt

about factual information it privately conceded. (E.g., R32:1950, 1964.) Thismarketing campaign included a wildly effective appeal to youths going back to
before Mr. Williams was even born. (R31:1910-12.)

The tobacco industry’s marketing campaign worked. (R31:1868.) For
example, in 1954, the industry ran a full page ad called “A Frank Statement to
Cigarette Smokers,” which claimed that there was no proof that smoking causes
lung cancer and conveyed the industry’s promise to conduct further research and
let the world know of any dangers that could be proven. (R30:1832-43; Pl. Ex. 32.)
After the Frank Statement, which was issued just a couple of years before Mr.
Williams started smoking, the cigarette smoking rate in this country rapidly
increased to a peak consumption year in 1964; still more cigarettes were sold every
year in this country until a peak sales year in 1982. (R31:1868, 1897-98.) The
industry’s own studies showed that its propaganda created doubt about Surgeon
General reports. (R31:1869.) And it was not until the 70s and 80s, after Mr.
Williams had been smoking for at least two or three decades, that most Americans
believed cigarettes caused cancer. (R31:1832.) The prevalence of smoking is
reflected by the fact that 440,000 Americans die every year from it. (R32:1969.)

Mr. Williams told his daughter that he smoked unfiltered Pall Malls “to get
everything he wanted out of it.’ (R27:1372.) Mrs. Williams testified that she
remembered having watched several cigarette ads, including watching a Pall Mall

ad with her husband in the 1960s that led him to exclaim “that’s my brand.”(R34:2217.) The jury was shown a Pall Mall ad from the 1950s in which a famous
actor promised that “Pall Mall gentles the smoke but does not filter out that
satisfying flavor.” (R31:1784.)

Mr. Williams smoked a pack and a half a day for at least 30 years.
(R27:1310; R34:2213-14.) He smoked as soon as he got up and all day long.
(R27:13 14-16; R34:2215-16; R36:2412-13.) He would even take a break during
church services to smoke. (R27:1322.) The longest his daughter could remember
him going without smoking, other than when he slept, was an hour. (R27:1322-23.)

There was also testimony regarding Mr. Williams’s drinking. The couple’s
daughter recalled seeing her dad drunk a few times. (R27:1325.) Mrs. Williams
testified to his drinking and the marital discord it caused, particularly early on in
their 30+ year marriage. (R34:2218.) He drank two to three cans of beer on a daily
basis and also would drink gin. (R34:2226-27.) At her suggestion, he sought
counseling at the VA Hospital, but was told that he did not meet the criteria for
counseling. (R34:2226-27.)

RJR’s brief highlights the problems in the Williams’ marriage, neglecting to
address much of the testimony that revealed a close and loving relationship. They
married in 1964, after dating for two years. (R34:2207.) The couple had two
children, and Mr. Williams had two additional children, one of whom Mrs.

Williams remains very close to. (R34:2213, 2249-50.) The couple’s daughter,Pamela Denson, testified that her dad made breakfast for her mom every day.
(R27:1314.) Mr. and Mrs. Williams spent time together going to the beach and
parties. (R27:1332; R34:2233.) He provided comfort to Mrs. Williams, rubbing her
back and otherwise watching out for her. (R27:1332-33; R34:2234.)

The couple did argue; Ms. Denson recalled they would go to another room,
away from the children. (R27:1325.) The jury also heard about several occasions
where Mr. Williams would get physically violent, pushing and one time even
throwing an item at his wife when he was drinking. (R27:1333.) The jury also
heard about instances where he threatened his children and actually got into a fight
with the couple’s son. (R27:1333; R34:2223.)

At one point, Mrs. Williams filed for divorce to, as she put it, get Mr.
Williams’s attention. (R34:2220-21.) She did not go through with it, because, as
she explained: “we reconsidered everything and decided that we were going to live
together, raise the children and continue to be husband and wife. Because, you
know, I didn’t want to divorce him. I just was trying to scare him up a little bit, you
know.” (R34:2220.) She thought he was seeing another woman and confronted him
about it, but said she “didn’t have to really worry about it.” (R34:2274.) They had
“sporadic” troubles again in the 80s, but things settled down and throughout their

marriage, she loved him. (R34:2227.) And Mr. Williams had “a great relationship”

10with their daughter. (R27:1326.) Mrs. Williams testified that he was a good
husband and that she misses him. (R34:2232, 2235.)

RJR’s assertion that Mr. Williams “rarely worked” (Init. Br. at 11) is entirely
belied by the record. After serving in the United States military for two years, Mr.
Williams worked as a mechanic at Sears until the mid 1970s. (R34:2208, 2216,
2221.) Mrs. Williams reported that he worked at other jobs before starting his own
business as a mechanic. (R34:2221.) Mrs. Williams explained that a report from
the 80s in which she had indicated Mr. Williams had not worked in seven years
was mistaken and that there had never been that lengthy of a time of
unemployment. (R35:2317.)

During the 70s and 80s, as RJR and its cohorts’ hold on the media and
ability to create doubt started to fade, Mr. Williams’s wife and daughter
encouraged him to quit smoking. (R27:1316; R34:2228.) Each time he said “he
would try.” (R27:1316; R34:2228.) During these attempts, he would smoke less,

9766

but would be “jittery,” “edgy,” and “nervous,” even developing a “tremble in his
hand.” (R27:1317; R34:2232.) The quit attempts also altered his personality and
mood; he was “withdrawn,” depressed, and not himself. (R27:1324.) These
attempts to quit or reduce his smoking would last for no more than a week or two.

(R27:1318; R34:2231.) His wife and daughter remember him wearing a nicotine

patch, but continuing to smoke through it. (R27:1321; R28:1433; R34:2230.) He

11told his family that quitting smoking was “really hard.” (R27:1320; R34:2231.)
Even after he watched a number of family members die because of their addiction
to smoking, he still could not quit. (R27:1323; R34:2260-62.)

Mr. Williams made his final quit attempt when he had to have a
tracheostomy. (R27:1319, 1329.) Even then, he was unsuccessful as his daughter
still caught him smoking after his tracheostomy. (R27:1329.) He was just 54 when
he was diagnosed with oropharynx, or throat, cancer in September 1996.
(R27:1318; R34:2237.) The cancer was so aggressive, neither chemotherapy nor
radiation treatment helped. (R29:1556.) He died in April 1997. (R34:2239-40.)

During his last seven months, he was constantly in the hospital or hospice,
with Mrs. Williams by his side every night. (R27:1327, 1330; R34:2242.) She also
assisted in his care, which included diapering and feeding through a tube.
(R27:1331; R34:2241.) Ms. Denson recalled her mom holding Mr. Williams like a
baby, rubbing his head, and telling him that she loved him and that everything was
going to be all right. (R27:1331.) Mrs. Williams testified that her husband went
down hill very fast and “was a pitiful sight.” (R34:2240.) After his tracheostomy,
the couple sometimes could not even converse, with Mr. Williams having to write
things down so Mrs. Williams could understand him. (R34:2241.)

RJR contends that Mr. Williams began experiencing symptoms one year

before he saw a doctor. (Init. Br. at 4.) But both Mr. Williams’s daughter and wife

12testified at trial that it was only a month before his diagnosis that he started
complaining of the symptoms. (R27:1327; R34:2236.) On its cross-examination of
Ms. Denson, RJR noted that in her deposition, she had stated, when asked when his
throat started bothering him: “I think about a year before we found out about the
cancer. It may not have been a year. I don’t remember exactly, but somewhere
before.” (R27:1387 (emphasis added).) On redirect, however, Ms. Denson noted
that she stated later in her deposition that her father’s symptoms had only been
going on for a couple of months at the time of his diagnosis. (R28:1402.) RJR’s
expert opined that when Mr. Williams presented, the size of the tumor had to have
been there for six months to a year. (R36:2431.)

The higher one’s tobacco exposure, the greater likelihood of getting
pharyngeal cancer. (R29:1551.) While alcohol is an independent risk factor for this
cancer, tobacco is the most common risk factor and was the most serious in 1996.
(R29:1546-51.) When Mr. Williams went to the VA Hospital, he had stage 4 oral
pharyngeal cancer. (R29:1556.) Mrs. Williams’s expert head and neck cancer
surgeon testified that he believed the cause of Mr. Williams’s cancer was tobacco
and that alcohol was a secondary cause. (R29:1559.) This same expert did not
think that poor dental care was an important or significant risk factor. (R29:1571-
72.) And RJR’s expert also could not say that smoking played no role in Mr.

Williams’s cancer. (R37:2507.)

13While RJR claimed Mr. Williams’s exposure to human papillomavirus
(“HPV”) was another risk factor, it never introduced any evidence that Mr.
Williams had HPV. Instead, its lone expert testified that the tumor was a type
associated with HPV and had other features indicating presence of the virus
(R37:2528), but his testimony was rebutted by plaintiff's experts, who testified that
Mr. Williams’s cancer fit the non-HPV etiology (R29:1559; R38:2721-22).

Since his death, Mrs. Williams and her daughter still talk about Mr.
Williams daily. (R27:1334; R34:2245-46.) Ms. Denson testified about how much
she reminds her mother of Mr. Williams and how that affects Mrs. Williams.
(R27:1334.) Mrs. Williams explained when asked about Ms. Denson’s reaction to
his death: “we have pleasant memories of him and, you know, we just miss his
presence.” (R34:2245.) Over the course of only a page of the transcript, she noted
that Ms. Denson cries and has kept one of Mr. Williams’s work shirts. (R34:2246.)
Mrs. Williams has not dated anyone since he passed because “nobody could
compare to him.” (R34:2247.) She has had to take medication for anxiety since his
death. (R34:2270.)

RJR misrepresents the testimony regarding Mr. Williams’s other children. It

93 66,

asserts that one of Mr. Williams’s “extramarital affairs” “produced a child.” (Init.
Br. at 12.) The citations to the transcript pages are to testimony that Mr. Williams

had two other children (R34:2249-50) and that at one point while they were

14separated, Mrs. Williams suspected Mr. Williams was seeing another woman
(R34:2273-74). But it was never explained that Mr. Williams’s other children were
a product of an affair, and the testimony actually indicates that both children were
older than his children with Mrs. Williams, meaning that the children could have
been born before the couple was married. (R34:2249-50; R36:2410, 2411.) The
only evidence of an affair was Mrs. Williams’s testimony that she suspected her
husband of seeing another woman when they were separated. (R34:2273-74.)

Evidence Regarding Ms. Denson’s Suffering

When Ms. Denson testified during trial, Mrs. Williams’s counsel asked her
to tell the jury how she handled the death of her father. (R27:1334.) Before she
could answer, RJR objected. (R27:1334-35.) This was the only time RJR objected
to testimony regarding Ms. Denson’s suffering, a