Donna Brown v. Philip Morris USA, Inc.

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 15-13160
____________________
DONNA BROWN,
Plaintiff-Appellee,
versus
R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the Brown
and Williamson Tobacco Corporation and the American
Tobacco Company, et al.,
Defendants,
PHILIP MORRIS USA, INC.,
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2 Opinion of the Court 15-13160
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:09-cv-10687-WGY-HTS
____________________
Before JORDAN, TJOFLAT, Circuit Judges, and BEAVERSTOCK,* Chief
District Judge.
TJOFLAT, Circuit Judge:
In this Engle-progeny 1 case, Donna Brown, a lifelong
smoker, sued Philip Morris USA, Inc.,2 seeking damages for the in-
juries she sustained as a result of smoking Philip Morris’s cigarettes,
specifically her development of peripheral vascular disease
* The Honorable Jeffrey U. Beaverstock, United States District Judge for the
Southern District of Alabama, sitting by designation.
1 Engle v. Liggett Grp., Inc. (Engle III), 945 So. 2d 1246 (Fla. 2006).
2 Brown initially sued Philip Morris, R.J. Reynolds Tobacco Company, and
Lorillard Tobacco Company, in a six-count complaint alleging negligence,
strict liability, fraudulent concealment, conspiracy to fraudulently conceal,
breach of express warranty, and breach of implied warranty. The parties stip-
ulated to the dismissal of the warranty claims prior to trial. And Brown and
both R.J. Reynolds and Lorillard eventually jointly moved to dismiss the
claims against R.J. Reynolds and Lorillard with prejudice, which were granted.
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15-13160 Opinion of the Court 3
(“PVD”), a debilitating disease which eventually required the am-
putation of both of her legs, among other injuries. A jury returned
verdicts against Philip Morris for Brown’s claims for strict liability,
negligence, fraudulent concealment, and conspiracy to fraudu-
lently conceal, and awarded Brown $8,287,448 in compensatory
damages and $9 million in punitive damages.
This appeal turns on whether Brown presented sufficient ev-
idence of her fraud claims. Philip Morris appeals the District
Court’s denial of its renewed motion for judgment as a matter of
law on the fraud claims, arguing that Brown presented insufficient
evidence to show that she relied to her detriment on statements
made by Philip Morris that concealed material information about
the health effects or addictive nature of smoking, or that such reli-
ance was a legal cause of her smoking-related disease. Brown de-
fends the District Court’s ruling, and the jury’s verdicts, on the
ground that, although Florida law now requires her to show that
she relied on a particular false statement made by Philip Morris, she
presented sufficient evidence of Philip Morris’s pervasive disinfor-
mation campaign and that she harbored a misapprehension about
the health effects and/or addictive nature of smoking, such that a
jury can infer her reliance.
Although in the past, Florida District Courts of Appeal rou-
tinely held that evidence of a pervasive disinformation campaign
and a plaintiff’s subsequent misapprehensions were sufficient to
show detrimental reliance, the Florida Supreme Court rejected this
approach earlier this year. Prentice v. R.J. Reynolds Tobacco Co.,
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4 Opinion of the Court 15-13160
No. SC20-291, 2022 WL 805951, at *6–8 (Fla. 2022). In so ruling,
the Florida Supreme Court held that Engle-progeny plaintiffs
bringing a fraudulent concealment or conspiracy to fraudulently
conceal claim must prove reliance on one or more specific state-
ments by an Engle defendant and that the statement or statements
on which the plaintiff relied were false or misleading. Accordingly,
because Brown relies solely on the evidence of Philip Morris’s dis-
information campaign to establish her claims, we set aside Brown’s
jury verdicts for fraudulent concealment and conspiracy to fraudu-
lently conceal due to insufficient evidence. However, we affirm
Brown’s jury verdicts for her negligence and strict liability claims,
and remand the case with the instruction that the District Court
reduce Brown’s damages by her comparative fault as the jury
found in its verdicts.
I.
A.
This lawsuit is one of thousands of progeny suits filed in the
wake of the Florida Supreme Court’s decision in Engle v. Liggett
Group., Inc. (Engle III), 945 So. 2d 1246 (Fla. 2006). We have pre-
viously explored the history of the Engle litigation in depth, and so
we describe that procedural history only briefly here. 3 In 1994,
Florida smokers and their survivors filed a class action against
3 For a detailed account of the history of this litigation, see Graham v. R.J.
Reynolds Tobacco Co., 857 F.3d 1169, 1174–81 (11th Cir. 2017) (en banc).
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several major domestic cigarette companies, including Philip Mor-
ris, seeking compensatory and punitive damages for their smoking-
related injuries. Engle III, 945 So. 2d at 1256. They alleged several
claims against the tobacco company defendants, including strict li-
ability, negligence, fraudulent concealment, and conspiracy to
fraudulently conceal.
The Engle litigation proceeded in three phases. Phase I fo-
cused on common issues of liability “relating exclusively to the de-
fendants’ conduct and the general health effects of smoking.” Id.The jury rendered a verdict in favor of the plaintiff class on all
counts. Id. at 1256–57. Relevant here, the “Phase I findings” in-
cluded: (1) that smoking cigarettes causes certain diseases, includ-
ing PVD; (2) that nicotine in cigarettes is addictive; (3) that the to-
bacco companies placed cigarettes on the market that were defec-
tive and unreasonably dangerous; (4) that the defendants concealed
or omitted material information, not otherwise known or availa-
ble, knowing that the material was false or misleading, or failed to
disclose a material fact concerning the health effects and/or addic-
tive nature of smoking cigarettes; (5) that the defendants agreed to
conceal or omit information regarding the health effects or addic-
tive nature of smoking cigarettes with the intention that smokers
and the public would rely to their detriment; (6) that all of the de-
fendants sold or supplied cigarettes that were defective; (7) that all
of the defendants sold or supplied cigarettes that, at the time of sale
or supply, did not conform to representations of fact made by the
defendants, and (8) that all of the defendants were negligent. Id. at
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1257 n.4, 1276–77. In Phase II, the same jury determined that the
tobacco companies were liable to the named class representatives;
it awarded compensatory damages to the named plaintiffs and pu-
nitive damages to the class as a whole. Id. at 1257. In Phase III,
new juries were to decide specific issues of individual liability and
damages for the other class members. Id. at 1258.
On discretionary review of the judgments in Phase I and
Phase II, 4 the Florida Supreme Court upheld the class certification
with respect to Phases I and II but decertified the class with respect
to Phase III “because individualized issues such as legal causation,
comparative fault, and damages predominate.” Id. at 1268. The
Court retained the Phase I findings outlined above, and provided
that those findings would have res judicata effect in future proceed-
ings brought by the Engle class members.5 We later recognized
that the Florida Supreme Court’s Engle decision gave the Phase I
findings preclusive effect in federal court under the Full Faith and
4 The Court in Engle III had jurisdiction because the decision of the Third
District Court of Appeal conflicted with one of its prior opinions. See Fla.
Const. art. V, § 3(b)(3) (noting that the Florida Supreme Court “[m]ay review
any decision of a district court of appeal that . . . expressly and directly conflicts
with a decision of . . . the supreme court on the same question of law”).
5 The Florida Supreme Court declined to give preclusive effect to the other
Phase I jury’s findings, which we omitted above, on the Engle plaintiffs’ fraud
and misrepresentation, conspiracy to misrepresent, and intentional infliction
of emotional distress claims because they “involved highly individualized de-
terminations.” Engle III, 945 So. 2d at 1269. The Court also nullified the pu-
nitive damages award as prematurely granted. Id.USCA11 Case: 15-13160 Date Filed: 06/30/2022 Page: 7 of 24
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Credit Act, 28 U.S.C. § 1738. See Burkhart v. R.J. Reynolds To-
bacco Co., 884 F.3d 1068, 1091–93 (11th Cir. 2018) (recognizing pre-
clusive effect of the Phase I findings on fraudulent concealment and
conspiracy to fraudulently conceal); Graham, 857 F.3d at 1186 (rec-
ognizing preclusive effect of the Phase I findings on negligence and
strict liability). 6
Moving forward, Engle class members could initiate individ-
ual damages actions against the Engle defendants and the Phase I
findings would have res judicata effect in those trials. Engle III, 945
6 As a result of the Phase I Engle findings, duty and breach for certain causes
of action, including negligence, strict liability, fraudulent concealment, and
conspiracy to fraudulently conceal, are conclusively presumed for plaintiffs
who show that they are class members. See Burkhart, 884 F.3d at 1082, 91–
93; Graham, 857 F.3d at 1175. Plaintiffs must still demonstrate causation and
damages—and questions have remained over how Engle-progeny plaintiffs
could prove causation. See Burkhart, 884 F.3d at 1082; Graham, 857 F.3d at
1175. In Graham, we gave preclusive effect to the Engle findings on negli-
gence and strict liability that established duty and breach for those causes of
action, even though those findings did not establish what components of the
defendants’ cigarettes were negligently produced or defective or unreasonably
dangerous. Graham, 857 F.3d at 1186. What that meant, under Florida law,
is that a plaintiff need only prove that an addiction to an Engle defendant’s
cigarettes was the legal cause of the plaintiff’s health problems, as well as prov-
ing the resulting damages. So, an Engle-progeny plaintiff need not establish
that a specific breach of duty—that is, any negligently produced or unreason-
ably dangerous aspect of the cigarettes—caused their harm. As our discussion
infra shows, the Florida Supreme Court in Prentice took a different tack with
respect to the fraudulent concealment and conspiracy to fraudulently conceal
claims, where it required that plaintiffs show that a specific breach of duty—
that is, a false or misleading statement—caused their harm.
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So. 2d at 1269. 7 With those findings established as a matter of law,
the Engle-progeny trials would center on issues of individual cau-
sation, comparative fault, and damages.
B.
Brown filed this Engle-progeny suit against Philip Morris in
2007, seeking compensatory and punitive damages related to her
development of PVD after decades of smoking cigarettes manufac-
tured by Philip Morris. She alleged she was a member of the Engle
class because she was addicted to smoking cigarettes and that ad-
diction was a legal cause of her PVD, and she sought recovery for
her injuries—including multiple surgeries and eventually the am-
putation of both her legs, which left her severely debilitated and
unable to work—under theories of strict liability, negligence,
fraudulent concealment, and conspiracy to fraudulently conceal. A
six-day jury trial on all four claims commenced in January 2015.
i.
Brown began smoking cigarettes when she was fifteen years
old. Although she never intended to become a lifelong smoker, by
age seventeen she was smoking regularly. In her testimony at trial,
Brown explained that when she began smoking, she did not know
7 As noted in note 5 supra, the Florida Supreme Court in Engle III threw out
the findings as to claims of fraud and misrepresentation, conspiracy to misrep-
resent, and intentional infliction of emotional distress, but retained the find-
ings as to claims of fraudulent concealment and conspiracy to fraudulently
conceal.
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or understand that cigarettes could cause life-threatening diseases
like PVD or that they were addictive. And she testified that her
understanding of the dangers of cigarettes now is “very different”
from what she understood when she first started. It took Brown
many years and multiple attempts before she was finally able to
quit smoking in June 2014.
When Brown first started smoking with her friends in high
school, her cigarette of choice was the Marlboro brand produced
by Philip Morris. She testified that she began smoking Marlboro
cigarettes “[b]ecause that was the brand that everybody was buy-
ing” and because she liked it. Additionally, she cited the Marlboro
Man advertisements as a reason she chose Marlboro cigarettes:
Q. And why did you choose Marlboros?
A. Because it was the thing to buy and I liked it.
Q. Your friends, is that what your friends were
smoking?
A. Yes.
Q. When you say it was the thing to buy, does
that mean because that’s what the other kids were
smoking or some other reason?
A. That and ads, you know.
Q. What kind of ads?
A. Marlboro man.
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Q. Okay. You remember seeing Marlboro adver-
tisements your senior year of high school?
A. Yeah.
...
Q. Okay. And what about the Marlboro ads made
you think -- made you feel that Marlboros were the in
thing to smoke?
A. I said I don’t know. It’s the Marlboro man and
the packaging. I don’t know.
Q. What about the packaging?
A. The red and white and -- I don’t know, I really
can’t tell you.
Q. Okay. Anything else about Marlboro packag-
ing you remember other than it was red and white?
A. No.
Q. Anything else about Marlboro advertising you
remember other than there was the Marlboro man?
A. Yeah.
Q. What else?
A. I mean --
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Q. What else do you remember other than there
was a Marlboro man in the Marlboro advertisements?
A. He had a saddle, I think it was, he was sitting
on or something, leaning against, I don’t know, some-
thing like that.
Q. Anything else?
A. Not really.
She also recalled being exposed to other cigarette advertise-
ments as she was growing up:
Q. Do you remember whether there were any
cigarette advertisements --
A. Yes.
Q. -- going on when you were growing up?
A. Yes.
Q. Do you remember any of the advertisements
that you saw growing up?
A. Yeah, the guy with the hat. I can’t think of his
name now. Dadgum it, I can’t think of his name.
Q. Can’t think of his name. Was he -- how would
you describing [sic] him?
A. He had a hat.
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Q. Had a hat?
A. Hat on his head, Chester --
Q. Was [sic] Marlboro man mean anything to
you?
A. Marlboro man, yeah. And also there was that
other guy that had -- he had a hat, but he was -- I can’t
think of his name.
Q. Was he with the Philip Morris company?
A. Yes. Yes.
Q. Okay. And this was something that you saw
personally when you were growing up?
A. Yeah, I saw it on billboards.
In addition to testimony about her personal experience,
Brown also presented extensive testimony about Philip Morris’s
advertising and marketing campaigns. Specifically, Brown’s histor-
ical expert testified that Philip Morris intentionally geared its adver-
tising toward teenagers in the 1960s and 1970s because it recog-
nized that teenagers were the “smokers of the future,” and that it
could capitalize on peer pressure among high school students to
promote its Marlboro brand. The Marlboro Man advertisements
were particularly appealing to young smokers because they pre-
sented an image that was quintessentially American: rugged, at-
tractive, and independent.
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The expert also explained that while Philip Morris continued
to publicly refute the notion that smoking cigarettes was addictive
and tied to serious health problems, 8 its internal documents re-
vealed that the company was aware of and generally accepted the
science linking cigarettes to lung cancer and other serious diseases.
He testified that even in response to the Surgeon General’s warn-
ing in 1964, the tobacco companies, including Philip Morris,
continued to challenge the science in the public me-
dia creating an artificial controversy [and] doubt as to
the truth of the matter linking cigarettes to serious
disease. And they continued to heavily advertise their
products and market their products. None of those
ads ever indicated any problem with the cigarette.
It wasn’t until 1999 that Philip Morris publicly acknowl-
edged that its cigarettes are addictive and can cause disease.
ii.
Philip Morris’s strategy in defending against Brown’s claims
for fraudulent concealment and conspiracy to fraudulently conceal
was two-fold. First, Philip Morris attempted to undermine
Brown’s alleged reliance on Philip Morris’s statements by arguing
that Brown chose to smoke not because of anything Philip Morris
had said about cigarettes, but because she liked it and because that
8 For example, in their “Frank Statement to the Cigarette Smokers,” the to-
bacco companies provided strong public assurances to smokers, stating, “We
believe the products we make are not injurious to health.”
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was what her friends were doing. On cross-examination, Philip
Morris elicited testimony from Brown that she could not recall ever
seeing a statement or advertisement from any tobacco company
that represented that cigarette smoking was not harmful or not ad-
dictive.
Second, Philip Morris also attempted to undermine Brown’s
evidence of reliance by showing that Brown was long aware of the
potentially harmful effects of smoking. By 1966, around the time
that Brown began smoking, every package of cigarettes sold in the
United States had a federally mandated health warning on it. Be-
ginning at age 18, her doctors continually advised her to quit smok-
ing due to the negative health effects, and Brown testified that she
believed her doctors when they told her that smoking could cause
lung cancer and heart disease. Her mother and sisters also advised
her to quit in the 1970s, after her mother suffered a heart problem
and they decided to quit smoking. But Brown did not try to quit at
that time because, as she testified, she “was hardheaded.” Brown
was again advised by her doctor to quit smoking in 1992, when she
was diagnosed with PVD, but even then she did not immediately
try to quit, testifying that she “tried towards the end, but not in the
beginning.”
Consistent with this strategy of targeting the sufficiency of
Brown’s evidence, at the close of her case, Philip Morris moved
under Fed. R. Civ. P. 50(a) for judgment as a matter of law on
Brown’s fraud claims because Brown had insufficient evidence to
present those claims to the jury. Philip Morris principally argued
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that Brown failed to establish the element of detrimental reliance
because she presented no evidence to show that she relied on a spe-
cific statement by Philip Morris or its alleged co-conspirators and
because she was sufficiently aware of the harm caused by smoking.
The District Court denied the motion.
iii.
After six days of testimony, the case was submitted to the
jury. With respect to Brown’s fraudulent concealment claim, the
District Court instructed the jury that “to award damages to Ms.
Brown on her claim of fraudulent concealment, you must find that
she relied on the statement or statements made by the defendant,
Philip Morris, about the health effects or addictive nature of smok-
ing, which concealed or omitted material information.”
With respect to Brown’s conspiracy claim, the District
Court instructed the jury that Brown must prove that (1) “she re-
lied to her detriment on an act done by the defendant or any other
member of the conspiracy that agreed to conceal or omit infor-
mation about the health effects of cigarettes or their addictive na-
ture;” (2) “the act or acts upon which she relied was done in fur-
therance of the agreement to conceal or omit material information
from the group’s statement or statements regarding the health ef-
fects and/or the addictive nature of cigarettes;” and (3) “the con-
cealment or omission had the effect of making . . . those statement
or statements false or misleading and her reliance was a legal cause
of her peripheral vascular disease.”
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The jury returned verdicts in favor of Brown on all claims.
It allocated 45% of the comparative fault to Brown and 55% to
Philip Morris and awarded Brown $8,287,448 in compensatory
damages and $9 million in punitive damages. Because Brown pre-
vailed on her fraud claims, the District Court did not reduce the
compensatory damages award by the percentage of comparative
fault attributable to Brown. See Fla. Stat. § 768.81(4) (“This section
does not apply to any action . . . based upon an intentional tort . .
. .”).
Post-trial, Philip Morris renewed its motion for judgment as
a matter of law on Brown’s fraud claims under Fed. R. Civ. P. 50(b)
and moved in the alternative for a new trial. Philip Morris again
argued that Brown had failed to introduce sufficient evidence from
which a reasonable jury could conclude that she relied to her det-
riment on any statement or omission by Philip Morris that con-
cealed information about the health risks or addictive nature of cig-
arettes, and failed to show that but for such concealment, she
would have avoided her injuries. Philip Morris argued that even if
the Court denied the motion for judgment as a matter of law, it
should grant Philip Morris a new trial because the verdict was
against the great weight of the evidence.
The District Court denied the motion, holding that the
jury’s verdict was supported by “sufficient evidence from which a
reasonable jury could conclude that Brown reasonably relied on
Philip Morris to disclose the addictive nature of cigarettes and the
harmful nature of smoking.” Brown v. R.J. Reynolds Tobacco Co.,
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No. 3:09-CV-10687, 2015 WL 3796282, at *1 (M.D. Fla. June 18,
2015). It explained that the jury could “infer detrimental reliance
from evidence that the tobacco companies engaged in ‘pervasive
misleading’ advertising campaigns and created a false controversy
with the intent to create doubt about the harmful effects of smok-
ing,” and that Brown “presented overwhelming evidence that
Philip Morris intentionally and calculatedly geared its advertising
to attract and hook teenagers to smoking its brand while hiding the
addictive nature of its cigarettes.” Id.The District Court further found that the evidence showed
Philip Morris knew cigarette smoking was linked to certain diseases
and that the nicotine in cigarettes was addictive, and yet Philip
Morris never disclosed that information to the public. Id. at *2.
Instead, Philip Morris “represented to the public, in a campaign
spanning decades, that cigarettes were not harmful and not addic-
tive,” creating “false doubt among the public.” Id. Based on this,
the Court held that “a jury could reasonably conclude that Brown,
like so many others, was induced to rely and did so rely, to her det-
riment, on Philip Morris to reveal the negative health effects of
smoking and its addictive nature.” 9 Id.
9 The District Court similarly held, on her conspiracy claim, that this evidence
was sufficient for a reasonable jury to conclude that “she relied to her detri-
ment on Philip Morris’s acts and omissions, committed with other co-con-
spirators . . . , of withholding information about cigarettes’ addictiveness and
harmful health effects.” Brown v. R.J. Reynolds Tobacco Co., No. 3:09-CV-
10687, 2015 WL 3796282, at *3 (M.D. Fla. June 18, 2015).
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C.
Philip Morris appeals the District Court’s judgment on all
claims. Phillip Morris makes two arguments on appeal.
Philip Morris first argues that the District Court denied
Philip Morris due process of law by giving the Engle III findings
preclusive effect as to Brown’s claims of negligence, strict liability,
fraudulent concealment, and conspiracy to fraudulently conceal
and that federal law preempts Brown’s claims of negligence and
strict liability. Our precedent in Graham and Burkhart forecloses
this argument, as Philip Morris recognizes, and it merely seeks to
preserve the issue for further review.
Second, Philip Morris challenges the sufficiency of the evi-
dence to support Brown’s fraud claims. Philip Morris argues, and
we agree, that the Florida Supreme Court’s decision in Prentice
renders our precedent on the fraud claims—specifically Cote v. R.J.
Reynolds Tobacco Co., 909 F.3d 1094, 1108 (11th Cir. 2018)—ob-
solete. 10 Accordingly, Philip Morris argues that the District Court
10 In Cote, we interpreted Florida law as not requiring that a plaintiff “show
reliance on a specific statement.” Cote, 909 F.3d at 1108; see also R.J. Reynolds
Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st Dist. Ct. App. 2010); Evers
v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139, 1140 (Fla. 2d Dist. Ct. App.
2015); Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426, 441–42 (Fla. 2d Dist.
Ct. App. 2017); Philip Morris USA, Inc. v. McCall, 234 So. 3d 4, 14–15 (Fla. 4th
Dist. Ct. App. 2017). Rather, under Florida law at the time, a plaintiff could
prove reliance by presenting evidence that she was (1) exposed to the tobacco
companies’ pervasive disinformation campaign and (2) subsequently harbored
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erred in denying its renewed motion for judgment as a matter of
law because Brown did not offer sufficient evidence of detrimental
reliance or legal causation under Florida law. She presented no ev-
idence, Philip Morris contends, that she was exposed to any state-
ment by any tobacco company that, through concealment, omis-
sion, or otherwise, falsely communicated that cigarette smoking
was not harmful or addictive. Philip Morris also argues that, be-
cause the jury’s punitive damages award was based solely on the
fraud claims, we should vacate that award too. Further, Philip ar-
gues that if we reverse the District Court’s order on the 50(b) mo-
tion, we should remand the case and instruct the District Court to
reduce the jury’s compensatory damage assessment by the amount
of comparative fault that the jury found in its verdicts. Sowers v.
a misapprehension about the health effects and/or addictive nature of smok-
ing, such that she would have behaved differently had she known the true
facts. Cote, 909 F.3d at 1108. The Florida courts, in other words, treated the
evidence of pervasive disinformation campaigns, and the “false controversy
created by the tobacco industry” as a whole, as a form of “circumstantial evi-
dence” from which juries could infer the detrimental reliance of plaintiffs. See
Martin, 53 So. 3d at 1069.
Our prior panel precedent rule requires us to follow a prior panel’s
holding unless abrogated later by the Supreme Court or this Court sitting en
banc. See Smith v. GTE Corp., 236 F.3d 1292, 1302–03 (11th Cir. 2001). How-
ever, we are not bound by a previous decision of this Court interpreting state
law if “subsequent decisions of the United States Supreme Court or the Florida
courts cast doubt on our interpretation of state law.” Hattaway v. McMillian,
903 F.2d 1440, 1445 n.5 (11th Cir. 1990) (emphasis omitted). Prentice casts
doubt on the interpretation of state law in Cote and so Cote no longer binds
us.
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20 Opinion of the Court 15-13160
R.J. Reynolds Tobacco Co., 975 F.3d 1112, 1135 (11th Cir. 2020).
We agree and reverse the District Court’s denial of judgment as a
matter of law on the fraud claims, vacate the punitive damages
award, and remand the case and instruct the District Court to re-
duce the remaining award by comparative fault. 11
In Part II, we analyze the sufficiency of the evidence to sus-
tain the jury’s verdict on Brown’s fraud claims under the new cau-
sation standard announced by the Florida Supreme Court in Pren-
tice. Because we agree that Brown’s evidence was insufficient un-
der Prentice, we address the proper remedy on remand in Part III.
II.
When reviewing evidentiary issues in a diversity case, “[w]e
apply the federal standard to assess whether the evidence presented
at trial was sufficient to raise a question of fact for the jury, but state
law supplies the substantive law that we apply” the federal
11 Philip Morris also asks that, if we reverse the District Court’s denial of the
50(b) motion as to the fraud claims, we grant it a new trial on all issues. Spe-
cifically, it argues that the evidence of the fraud claims tainted the jury’s as-
sessment of (1) the negligence and strict liability claims; (2) compensatory
damages; and (3) comparative fault. Because Philip Morris failed to raise these
issues in its motion for new trial, we consider these issues forfeited and do not
address them further. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
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evidentiary standard to. Cote, 909 F.3d at 1107 (citing Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938)).
We review a renewed motion for judgment as a matter of
law under Fed. R. Civ. P. 50(b) de novo, applying the same stand-
ards as the district court. Id. at 1103. “We consider all the evidence,
and the inferences drawn therefrom, in the light most favorable to
the nonmoving party.” Id. (quoting Goldsmith v. Bagby Elevator
Co., 513 F.3d 1261, 1275 (11th Cir. 2008)). We will “disturb the
jury’s verdict only when there is no material conflict” as to the ev-
idence and where no reasonable juror could agree to the verdict.
Id. (quoting Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765
F.3d 1277, 1285 (11th Cir. 2014)).
We apply these standards in determining whether Brown es-
tablished her fraud claims under the rule laid down by the Florida
Supreme Court in Prentice. There, the Florida Supreme Court
held that for “fraudulent concealment and conspiracy to fraudu-
lently conceal claims,” an Engle-progeny plaintiff must prove (1)
that the plaintiff relied to his detriment on a specific statement or
set of related statements, (2) made by the defendant (or a co-con-
spirator in a conspiracy claim), (3) which are misleading as to the
health effects or addictiveness of smoking cigarettes. Prentice,
2022 WL 805951, at *3, 6. In proving reliance, the plaintiff must
show that he or she “received, believed, and acted upon the state-
ments that omitted the material information” such that it was the
“but for cause” of the plaintiff’s harm. Id. at *6. Thus, appealing
to the generalized disinformation campaign waged by tobacco
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22 Opinion of the Court 15-13160
companies is not sufficient to show that a failure to disclose infor-
mation caused one’s injury. See id. at *6–8 (rejecting jury instruc-
tion that suggested that reliance on the “omissions” related to or a
“conspiracy” based on tobacco company defendant’s disinfor-
mation campaigns as sufficient to show reliance).
In ruling on Philip Morris’s 60(b) motion, the District Court
held that Brown’s fraudulent concealment and conspiracy to fraud-
ulently conceal claims were supported by “sufficient evidence” of
reliance because “the tobacco companies engaged in ‘pervasive
misleading’ advertising campaigns and created a false controversy
with the intent to create doubt about the harmful health effects of
smoking.” Brown, 2015 WL 3796282, at *1 (citing R.J. Reynolds
Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st Dist. Ct. App.
2010)). In other words, the District Court’s order faulted Philip
Morris for simply failing to disclose to Brown the negative health
effects and addictive nature of smoking in its widespread advertis-
ing campaign.
Under Prentice, the District Court was wrong. First, Pren-
tice makes clear that Brown could not rely solely on the pervasive
disinformation campaign waged by the Philip Morris to establish
reliance. Prentice, 2022 WL 805951, at *6–8. 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 ad-
vertisements by Philip Morris or its co-conspirators that she was
exposed to and relied on. Id. at *6–7. The evidence Brown pre-
sented at trial consisted of, for the most part, her general exposure
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15-13160 Opinion of the Court 23
to or mere awareness of Philip Morris’s marketing campaign,
which cannot establish reliance. See id. at *4 (“[T]here can be no
reliance . . . if the plaintiff would have acted the same way regard-
less of whether the defendant had made the misrepresentation.”).
When asked explicitly why she started smoking Marlboro ciga-
rettes, 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 advertise-
ment that influenced her decision to smoke. 12 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 Re-
search Committee, or the Tobacco Institute, the entities at the
12 On appeal, Brown claims that the images of the cowboys contained in the
Marlboro Man advertisements gave her a misapprehension about the health
effects and addictiveness of smoking cigarettes. However, at trial she stated
that she did not know why these advertisements caused her to smoke or be-
lieve that smoking Marlboros was the “in thing.” That testimony alone does
not show that Brown relied on a statement by Philip Morris, instead of the
influence of her friends. See Prentice, 2022 WL 805951, at *4 (“[R]eliance re-
quires the plaintiff to have ‘received, believed, and acted upon’ a misstatement
. . . .”).
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24 Opinion of the Court 15-13160
center of the tobacco industry’s disinformation campaign. The ev-
idence, 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 misrepre-
sentation.” See id.III.
Finally, because we have reversed the District Court’s order
denying Philip Morris’s 50(b) motion, we vacate the punitive dam-
ages award, which was supported only by the fraud claims.
IV.
Accordingly, we AFFIRM in part, REVERSE in part, and RE-
MAND this case to the District Court with instruction to reduce
Brown’s compensatory damages award by her comparative fault.
SO ORDERED.