NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

CINDY EVERS, as Personal ) 

Representative of the Estate of ) 

JACQUELINE LOYD, ) 

 ) 

 Appellant/ ) 

 Cross-Appellee, ) 

 ) 

v. ) Case No. 2D13-2553 

 ) 

R.J. REYNOLDS TOBACCO ) 

COMPANY, ) 

 ) 

 Appellee/ ) 

 Cross-Appellant. ) 

________________________________ ) 

Opinion filed November 6, 2015. 

Appeal from the Circuit Court for 

Hillsborough County; Bernard C. Silver, 

Judge. 

Steven L. Brannock, Celene H. 

Humphries, Ceci Culpepper Berman, 

and Tyler K. Pitchford of Brannock & 

Humphries, Tampa; Hendrik Uiterwyk 

and Brent R. Bigger of Abrahamson & 

Uiterwyk, Tampa; and Michael J. 

Trentalange of Trentalange & Kelley, 

P.A., Tampa, for Appellant/CrossAppellee. 

Troy A. Fuhrman and Marie A. Borland 

of Hill, Ward & Henderson, P.A., 

Tampa; Elliot H. Scherker, Julissa 

Rodriguez, and Brigid F. Cech Samole 
- 2 -

of Greenberg Traurig, P.A., Miami; and 

Gregory G. Katsas and Edward M. 

Wenger of Jones Day, Washington, 

D.C., for Appellee/Cross-Appellant. 

KELLY, Judge. 

 This lawsuit originated as part of a class action against the appellees, R.J. 

Reynolds Tobacco Company and Lorillard Tobacco Company,1 and other tobacco 

companies seeking damages for diseases caused by smoking cigarettes. The class 

consisted of all Florida residents who have suffered or have died from diseases and 

medical conditions caused by their addiction to cigarettes. Engle v. Liggett Grp., Inc., 

945 So. 2d 1246, 1256 (Fla. 2006). In Engle, the Florida Supreme Court held that 

individual class members could file separate, individual actions, and that the findings 

reached by the Engle jury in Phase I of the trial concerning the defendants' misconduct 

would have a res judicata effect in subsequent individual trials by class members. Id. at 

1269. 

 In this "Engle progeny" case, Cindy Evers, as personal representative of 

her mother's, Jacqueline Loyd's, estate, challenges the trial court's order that granted 

the tobacco companies' motion for directed verdict on claims for fraud by concealment 

and conspiracy to commit fraud by concealment and seeks reinstatement of the punitive 

damages awarded in connection with those claims. R.J. Reynolds has cross-appealed, 

challenging the order denying its motion for a new trial. We conclude the trial court 

 1As a result of a corporate merger, R.J. Reynolds Tobacco Company 

became the successor-by-merger to Lorillard Tobacco Company, and Lorillard Tobacco 

Company ceased to exist as a corporate entity. 
- 3 -

erred in directing a verdict in favor of the tobacco companies where there was 

circumstantial evidence from which the jury could have concluded that Ms. Loyd relied 

on the tobacco companies' misleading advertising campaigns. We find no merit in the 

various points raised on cross-appeal and affirm the trial court's rulings on those issues 

without further comment. 

 In her lawsuit, Ms. Evers alleged claims for strict liability, negligence, 

fraudulent concealment, and conspiracy to fraudulently conceal. Posttrial, the trial court 

directed a verdict on Ms. Evers' fraud and conspiracy claims, concluding that Ms. Evers 

had "failed to introduce any evidence that Ms. Loyd saw, heard or read any statement 

that omitted material information or that she relied on such a statement when she chose 

to begin smoking or to continue smoking." In granting the motion, the trial court 

declined to follow R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 

2010), which held that a jury could infer reliance based on what the First District 

described as evidence of "pervasive" cigarette advertising and "the false controversy 

created by the tobacco industry" about the health risks of smoking. Id. at 1069. 

Instead, the court accepted the tobacco companies' argument that this court's decision 

in Humana, Inc. v. Castillo, 728 So. 2d 261 (Fla. 2d DCA 1999), stood for the 

proposition that reliance cannot be inferred from circumstantial evidence. 

During the pendency of this appeal, this court issued its decision in Philip 

Morris USA, Inc. v. Hallgren, 124 So. 3d 350 (Fla. 2d DCA 2013), in which we cited with 

approval the holding in Martin that the element of reliance may be inferred from 

"pervasive and misleading advertising campaigns perpetuated by the Tobacco 

Companies." Id. at 353. In light of Hallgren, R.J. Reynolds has abandoned its reliance 
- 4 -

on Humana and instead contends that notwithstanding Hallgren we can affirm the 

directed verdict because there was evidence Ms. Loyd was aware of the health risks 

that the tobacco companies had concealed and therefore she could not have relied on 

the misleading advertising. 

 A party seeking a directed verdict bears a heavy burden. 

A motion for directed verdict should be granted only 

where no view of the evidence, or inferences made 

therefrom, could support a verdict for the nonmoving 

party. In considering a motion for directed verdict, the 

court must evaluate the testimony in the light most 

favorable to the nonmoving party and every 

reasonable inference deduced from the evidence 

must be indulged in favor of the nonmoving party. If 

there are conflicts in the evidence or different 

reasonable inferences that may be drawn from the 

evidence, the issue is factual and should be submitted 

to the jury. 

Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005) (citations omitted). R.J. 

Reynolds has not persuaded us that the evidence in this record meets that standard. 

Among the other weaknesses in this argument, the tobacco company has pointed to no 

evidence that Ms. Loyd was aware that the nicotine in cigarettes was addictive, nor has 

it conclusively demonstrated that despite some awareness on Ms. Loyd's part that 

smoking could cause health problems, that she was not reassured by the controversy 

the tobacco companies generated to keep people smoking. Accordingly, we reverse 

the directed verdict on Ms. Evers' fraud by concealment and conspiracy to commit fraud 

by concealment claims. Because we are reinstating the jury's verdict on these two 

claims we likewise reinstate the punitive damages award attendant to those claims.2

 2R.J. Reynolds has invited us to determine certain issues with respect to 

the punitive damage award. Those issues, however, were never before the trial court 
- 5 -

 Reversed and remanded. 

NORTHCUTT and CASANUEVA, JJ., Concur. 

 

because it set the award aside in light of the directed verdicts on the fraud and 

conspiracy claims. We decline to reach those issues without giving the trial court an 

opportunity to do so first.