Supreme Court of Florida

____________

No. SC20-291

____________

LINDA PRENTICE, etc.,

Petitioner,

vs.

R.J. REYNOLDS TOBACCO COMPANY,

Respondent.

March 17, 2022

MUÑIZ, J.

As we will soon explain, this is an “Engle progeny” case, where 

an injured smoker sues a tobacco company for fraudulent 

concealment, conspiracy, and other tortious conduct. Today we 

resolve a district court conflict over what proof is required to prevail

on the reliance element of those fraudulent concealment and 

conspiracy claims—a disagreement that has led to divergent jury 

instructions in Engle progeny cases.1 We hold that an Engle

progeny plaintiff must prove reliance on a statement that was made 

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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by an Engle defendant (for a concealment claim) or co-conspirator

(for a conspiracy claim) and that concealed or omitted material 

information about the health effects or addictiveness of smoking 

cigarettes.

I.

John Price got chronic obstructive pulmonary disease after

smoking multiple packs of R.J. Reynolds cigarettes a day for most 

of his adult life. Price sued RJR and asserted claims for strict 

liability, negligence, fraudulent concealment, and conspiracy to 

fraudulently conceal. After Price’s death from COPD, Linda Prentice 

maintained the lawsuit as a wrongful death action.

Price and Prentice’s lawsuit traces to 1994, when injured 

smokers filed a class action seeking damages from RJR, the other 

major domestic tobacco companies, and affiliated organizations for 

smoking-related illnesses. Our Court prospectively decertified the 

class in Engle v. Liggett Group, Inc. (Engle III), 945 So. 2d 1246 (Fla. 

2006). At the time of our decision in Engle III, the Engle trial court 

had completed Phases I and II of the case’s three planned phases. 

The reader can disregard Phase II, which has no relevance to our 

decision today.
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We held in Engle III that, notwithstanding our decision to 

decertify the class, individual class members like Price could choose 

to bring individual actions in which certain factual findings from 

Phase I of Engle would be given “res judicata effect.” Engle III, 945 

So. 2d at 1277. Those findings have come to be known as the 

“approved Phase I findings.” The individual class member lawsuits, 

of which there have been thousands, are usually referred to as

“Engle progeny” cases.

The point of an Engle progeny case is to litigate the plaintiffspecific reliance, causation, and damages issues that were left 

unaddressed by the Phase I jury. That jury “did not determine 

whether the defendants were liable to anyone.” Id. at 1263. 

Instead, the Phase I findings related “exclusively to the defendants’ 

conduct and the general health effects of smoking.” Id. at 1256; see 

also id. at 1276-77 (listing the approved Phase I findings).

An Engle progeny plaintiff must first prove membership in the 

Engle class—a class consisting of Florida residents who developed a 

qualifying smoking-related illness by November 21, 1996, and 

whose illness was caused by an addiction to cigarettes containing 

nicotine. Upon successfully proving class membership, the plaintiff 
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is entitled to use the approved Phase I findings to establish the 

conduct elements of her Engle claims. See Engle III; Philip Morris 

USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013) (clarifying how the 

approved Phase I findings were to be used in Engle progeny cases).

In this case, the jury first found that Price was a member of 

the Engle class. The jury then found in Prentice’s favor on her 

claims for strict liability, negligence, and concealment conspiracy, 

but not for fraudulent concealment. The jury awarded Prentice 

$6.4 million in compensatory damages and apportioned 60% of the 

fault for Price’s death to Price and 40% to RJR. But because the 

jury found in Prentice’s favor on concealment conspiracy (an 

intentional tort), the judgment was not reduced to reflect Price’s 

comparative fault. See Schoeff v. R.J. Reynolds Tobacco Co., 232 

So. 3d 294, 305 (Fla. 2017). RJR appealed.

The First District’s decision in the appeal focused on RJR’s 

challenge to the jury instruction on Prentice’s concealment 

conspiracy claim. By way of background, the approved Phase I 

findings pertinent to that claim were (1) “that the [Engle] defendants 

concealed or omitted material information not otherwise known or 

available knowing that the material was false or misleading or failed 
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to disclose a material fact concerning the health effects or addictive 

nature of smoking cigarettes or both;” and (2) “that the defendants 

agreed to conceal or omit information regarding the health effects of 

cigarettes or their addictive nature with the intention that smokers 

and the public would rely on this information to their detriment.” 

Engle III, 945 So. 2d at 1257 n.4.

In addition to the approved Phase I findings, Prentice 

presented evidence that the 

major tobacco companies in the United States, including 

RJR, made fraudulent statements about the hazards of 

smoking as early as December 4, 1953. Over a fifty-year 

period, the tobacco companies concealed information 

about the addictive nature of nicotine and the harmful 

effects of smoking while engaging in marketing efforts to 

encourage people to smoke.

R.J. Reynolds Tobacco Co. v. Prentice, 290 So. 3d 963, 965 (Fla. 1st 

DCA 2019).

Although the approved Phase I findings sufficed to establish 

the conduct elements of her concealment claims, it remained for 

Prentice to prove the other elements of the claims, including the 

reliance element. As to the reliance element of her conspiracy 

claim, RJR had sought an instruction telling the jury that it must 

determine “whether Mr. Price reasonably relied to his detriment on 
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a statement that concealed or omitted material information

regarding the health effects of smoking cigarettes or their addictive 

nature, and that was made in furtherance of” the Engle defendants’ 

conspiracy. Id.

The trial court refused. It instead instructed the jury to 

determine “whether the conspiracy to withhold health information 

or information regarding addiction and any acts proven in 

furtherance of that conspiracy were relied upon by John Price to his 

detriment.” Id. at 966. RJR argued that the trial court’s refusal to 

give RJR’s requested special instruction on reliance was both 

erroneous and prejudicial.

The First District agreed with RJR, principally on the authority 

of the decision in R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 

536 (Fla. 1st DCA 2018). The holding in Whitmire was that, to 

prevail on fraudulent concealment, Engle progeny plaintiffs “must 

prove detrimental reliance on fraudulent statements.” Id. at 537. 

The Whitmire court started from the premise that the Engle

defendants owed smokers no free-standing disclosure obligation 

and that the defendants’ disclosure obligation would therefore have 

to be triggered by the defendants’ statements. The court further 
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reasoned that, absent a plaintiff’s reliance on those statements, 

there could be no liability for fraud. Applying the Whitmire court’s 

holding, the First District here concluded that the disputed jury 

instruction in Prentice’s case was prejudicial error because neither 

it nor any other instruction informed the jury of the need to find 

that Price had relied on a statement. To remedy the error, the 

district court vacated the entire judgment.

The First District’s decision on the reliance issue conflicts with 

decisions of other district courts. Specifically, although all Florida 

courts agree that fraudulent concealment and concealment 

conspiracy claims include a reliance element, the Second, Third, 

and Fourth Districts have held that an Engle progeny plaintiff need 

not prove reliance on a statement. See Philip Morris USA, Inc. v. 

Duignan, 243 So. 3d 426 (Fla. 2d DCA 2017); Philip Morris USA, Inc. 

v. Chadwell, 306 So. 3d 174 (Fla. 3d DCA 2020); R.J. Reynolds 

Tobacco Co. v. Burgess, 294 So. 3d 910 (Fla. 4th DCA 2020).

We have now exercised our discretionary jurisdiction to review 

the First District’s decision and to resolve the conflict. Each of the 

parties has asked us to address issues outside the conflict question, 

but we decline to do so. We will not address Prentice’s fallback 
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argument that the First District erred by vacating the entire 

judgment, not just the verdict on the concealment conspiracy 

count. Nor will we take up RJR’s renewed challenge to this Court’s 

decisions, in Engle III and later in Douglas, to give “res judicata 

effect” to the approved Phase I findings. We apply those decisions 

in our opinion today, but we neither endorse them nor question

their correctness.

II. 

The parties have framed their dispute in clear terms. RJR

says that an Engle progeny plaintiff must prove reliance on a 

statement. Prentice says that the plaintiff’s burden is to prove 

reliance on silence. In our view, RJR is right. We hold that, to 

prevail on fraudulent concealment and concealment conspiracy 

claims, an Engle progeny plaintiff must prove reliance on a 

statement that was made by an Engle defendant (for a concealment 

claim) or co-conspirator (for a conspiracy claim) and that concealed 

or omitted material information about the health effects or 

addictiveness of smoking cigarettes. Before we explain why, we 

begin with three clarifying points.
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First, although the jury here found RJR liable for concealment 

conspiracy and not for fraudulent concealment, we will discuss the 

two claims interchangeably. It is common ground that each claim 

includes a reliance element and that our answer to the question 

presented in this case should apply equally to each claim. See Loeb 

v. Geronemus, 66 So. 2d 241, 243 (Fla. 1953) (“The gist of a civil 

action for conspiracy is not the conspiracy itself but the civil wrong 

which is alleged to have been done pursuant to the conspiracy.”).

Second, we emphasize that an Engle progeny plaintiff need not 

prove reliance on a statement that was affirmatively false on its 

face. It is enough for the plaintiff to prove reliance on statements 

that, while not necessarily false on their face, are misleading 

because they conceal or omit other material information. The key 

distinction is between making statements that are misleading by 

omission, on the one hand, and pure silence or a passive failure to 

disclose, on the other. Only the former can support fraud liability 

in an Engle progeny case.

Third, in its briefing here RJR says that reliance on “a 

statement” does not mean reliance on a specific statement—for 

example, a specific advertisement. RJR maintains that reliance on 
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“a statement” can include “a category of statements addressing a 

particular topic (e.g., advertisements for filtered cigarettes).” We 

agree that reliance on “a statement” does not require proof of 

reliance on “a specific statement,” and our holding must be taken to 

include this understanding. As we will explain, what matters for 

purposes of reliance is that the plaintiff be able to prove a causal 

connection running from an Engle defendant’s statement or 

statements, to the plaintiff’s beliefs about the health effects or 

addictiveness of smoking cigarettes, to the plaintiff’s injury. The 

statements relied upon must have been capable of causing the 

plaintiff to form a false belief about the health effects or 

addictiveness of smoking cigarettes.2

A.

We said in Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 698 

(Fla. 2015), that “Engle-progeny plaintiffs must certainly prove 

detrimental reliance in order to prevail on their fraudulent 

2. We respectfully disagree with our dissenting colleague’s 

assertion that our holding “disregards the concept of proof of facts 

by inference in our jurisprudence.” Our decision today resolves a 

district court conflict over whether an Engle progeny plaintiff must

prove reliance on a statement; it does not address how the plaintiff 

may prove such reliance.
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concealment claims.” This case requires us to flesh out what that

means. We will start by discussing what reliance is and what work 

the reliance element does in a fraud claim.

1.

Reliance means that a plaintiff has entered a transaction in 

whole or in part because of the defendant’s fraudulent conduct. 

See 3 Dan B. Dobbs et al., The Law of Torts § 671, at 665 (2d ed. 

2011). More specifically, reliance requires the plaintiff to have 

“received, believed, and acted upon” a misrepresentation by the 

defendant. John C.P. Goldberg et al., The Place of Reliance in 

Fraud, 48 Ariz. L. Rev. 1001, 1007 (2006). “[W]here the recipient 

knows the true facts that are misrepresented or for any reason does 

not believe the misrepresentation, he cannot be found to rely on it.” 

2 Fowler V. Harper et al., The Law of Torts § 7.13, at 465 (2d ed. 

1986) (footnotes omitted). Similarly, there can be no reliance if the 

plaintiff is unaware of the defendant’s misrepresentation until after 

the transaction is complete, or if the plaintiff would have acted the 

same way regardless of whether the defendant had made the 

misrepresentation. See Restatement (Third) of Torts: Liability for 

Economic Harm § 11 (Am. L. Inst. 2020).
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Actionable misrepresentations are not limited to statements 

that are affirmatively false on their face. Fraud liability can also be 

premised on statements that are misleading because they omit 

other material information. Indeed, the common law has long 

recognized that the representation underlying a fraud claim can be 

communicated through myriad forms of conduct. See generally W. 

Page Keeton et al., Prosser & Keeton on the Law of Torts § 106 (5th 

ed. 1984) (“The representation which will serve as a basis for an 

action of deceit . . . usually consists, of course, of oral or written 

words; but it is not necessarily so limited.”).

What matters is that the defendant intend to induce the 

plaintiff’s reliance by creating a false impression in the plaintiff’s 

mind. That is why our cases have made clear that, in any fraud 

case, the object of a plaintiff’s reliance is a representation by the 

defendant. See, e.g., Am. Int’l Land Corp. v. Hanna, 323 So. 2d 567, 

569 (Fla. 1975) (“In an action for fraud and deceit plaintiff must 

allege (1) that defendant made a representation on which plaintiff 

was meant to act, (2) that the representation was false and 

defendant knew that fact, and (3) that plaintiff relied on the 
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representation to his injury.”). Fraud is effected through 

representations.

In the common law of fraud, reliance is what establishes the 

necessary connection between a fraudulent representation and the 

plaintiff’s injury. Put differently, regardless of the form of the 

defendant’s fraudulent conduct, reliance is an indispensable aspect 

of proving causation in a fraud claim. “The element of reliance 

overlaps with (and may be considered a form of) the usual 

requirement in tort that a defendant’s wrong be a factual or ‘but for’ 

cause of the harm that the plaintiff suffered.” Restatement (Third) 

of Torts: Liability for Economic Harm § 11 cmt. a (Am. L. Inst.

2020); see Leon Green, Deceit, 16 Va. L. Rev. 749, 762 (1930)

(“Whether the plaintiff was induced to act upon the defendant’s 

representation is the question of causal relation in its simplest 

form. It is usually stated in terms of the plaintiff’s reliance.”).

2.

Against this backdrop, we can now consider the nature of the 

fraudulent concealment claim involved in Engle itself. The Engle

class complaint had brought a single fraud count, under the 

heading “Fraud and Misrepresentation.” See Amended Class Action 
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Complaint for Compensatory and Punitive Damages at 38, Engle v. 

Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (No. SC03-1856). 

Nonetheless, class counsel persuaded the Engle trial court to 

instruct the Phase I jury on two theories of fraud: “fraud and 

misrepresentation” and “fraud by concealment.”

The tobacco defendants had objected to giving the Phase I jury 

a fraud by concealment instruction, arguing that that theory of 

fraud depends on a disclosure obligation absent from the case. 

Class counsel successfully rebutted the defendants’ argument by

saying this to the trial court:

And the fraud, it’s clear that concealment is very 

important, concealment in connection with representations 

or not telling the whole truth. So that’s why we put it in 

and that’s why we feel it’s important. And we also said it 

made the statements misleading, because that’s the point. 

So it is concealment, but it’s simply not concealment in the 

abstract. If they didn’t open their mouths, if they did 

nothing, then [sic] would not have had, perhaps, that 

duty. But we don’t have to address that issue because, 

not only did they speak, they spoke constantly to the 

public; and because of that they had a duty to tell the 

whole truth.

(Emphasis added.)

The Engle trial court eventually instructed the Phase I jury:

On the Plaintiffs [sic] claim for fraud by 

concealment, the issues for your determination are:
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(1), whether one or more of the Defendants omitted 

or concealed material facts that would be necessary to 

make statements by said Defendants not misleading;

(2), whether one or more of the Defendants knew 

the statement was false when it was made or made the 

statement knowing that said Defendants was [sic] 

without knowledge of its truth or falsity, or knew of the 

existence of material facts that were not disclosed;

(3), whether in making the false statement, or in 

concealing material facts, one or more of the Defendants 

intended that another rely on the omission or 

concealment.

Intentional concealment exists where a party knows 

of defects in a product and intentionally conceals them, 

or, while under no duty to speak, nevertheless voluntarily 

does so, but does not speak honestly or makes 

misleading statements or suppresses facts.

(Emphasis added.)

Later, as to “fraud by concealment,” the Phase I jury answered 

yes to this question: “Did one or more of the Defendants conceal or 

omit material information, not otherwise known or available, 

knowing the material was false and misleading, or failed to disclose 

a material fact concerning or proving the health effects and/or 

addictive nature of smoking cigarettes?” (Emphasis added.) For the 

question to make sense, “the material” must be understood as 
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referring to material that the Engle defendants disseminated to the

public.

Reading these three things together—Engle class counsel’s 

argument at the Phase I charge conference, the Phase I jury 

instruction, and the Phase I jury finding—gives a clear picture of 

the Engle plaintiffs’ theory of the Engle defendants’ fraudulent 

conduct. Namely, the Engle plaintiffs alleged that the defendants

had made statements that concealed material information about the 

health effects or addictiveness of smoking cigarettes, with the 

intention of misleading would-be purchasers of the defendants’ 

products. This conduct breached a duty that was well established 

in the common law of fraud: “Though a vendor may have no duty to 

speak, yet ‘if he does assume to speak, he must make a full and fair 

disclosure as to the matters about which he assumes to speak. He 

must then avoid a deliberate nondisclosure.’ ” Harper, et al., supra

p.11, § 7.14, at 472 (quoting Franchey v. Hannes, 207 A.2d 268, 

271 (Conn. 1965)).

3.

Now consider an Engle progeny case. These cases involve “the 

same causes of action between the same parties” as in Engle. 
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Douglas, 110 So. 3d at 432. They allow a member of the decertified 

class to “pick up litigation of the approved six causes of action right 

where the class left off.” Id. For the reliance element of the 

fraudulent concealment claims, the Engle progeny plaintiff’s burden 

is to prove that the defendant’s fraudulent conduct—as defined in 

Engle—caused the plaintiff to form a false belief about the health 

effects or addictiveness of smoking cigarettes and then to act to his 

detriment. And as we have explained, as to fraudulent 

concealment, the Engle defendants perpetrated their fraud through 

incomplete statements.

The only way for an Engle progeny plaintiff to prove reliance 

(and therefore causation) is to show that he received, believed, and 

acted upon the statements that omitted the material information. 

Otherwise, the tobacco defendants’ omission of information from 

those statements could not have harmed the plaintiff. It could not 

be said that the defendants’ fraudulent conduct deceived the 

plaintiff. As the Restatement (Second) of Torts explains, when a 

defendant makes a statement that purports to tell the whole truth 

but does not, “there is a duty to disclose the additional information 
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necessary to prevent it from misleading the recipient.” Restatement 

(Second) of Torts § 551 cmt. g (Am. L. Inst. 1977) (emphasis added).

The reasoning underlying our holding is straightforward. The 

Engle plaintiffs pursued a “fraud by concealment” theory that the 

tobacco defendants chose to speak and then did so incompletely 

and misleadingly. It was only through their incomplete statements 

that the Engle defendants were able to create a false impression in 

the minds of listeners. Only recipients of the defendants’ 

statements were capable of being deceived by those statements. No 

statements, no deception, no causation. Therefore, to prevail on a 

fraudulent concealment or concealment conspiracy claim, an Engle

progeny plaintiff must prove reliance on a statement that was made 

by an Engle defendant or co-conspirator and that concealed or 

omitted material information about the health effects or 

addictiveness of smoking cigarettes.

B.

We are unconvinced by Prentice’s arguments to the contrary, 

starting with her assertion that an Engle progeny “plaintiff’s burden 

on causation is to prove reliance on silence.” That is wrong for at 

least two reasons.
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Analytically, the problem with Prentice’s argument is that the 

Engle defendants did not have a freestanding disclosure obligation. 

See generally Restatement (Second) of Torts § 551 (Am. L. Inst.

1977); Restatement (Third) of Torts: Liability for Economic Harm

§ 13 (Am. L. Inst. 2020). Absent such a duty, a plaintiff is not 

entitled to infer any communicative content from a defendant’s 

silence or nondisclosure. Even if we assume that there are some 

situations where a confidential or fiduciary relationship between the 

parties is such that silence could potentially communicate a tacit 

representation, this is not such a case. (We need not address here

whether it would ever be correct to instruct a jury to determine 

whether a plaintiff “relied on silence.”)

More concretely, Prentice’s “reliance on silence” argument is 

utterly disconnected from the fraudulent conduct asserted in Engle. 

As we have detailed, class counsel told the Engle trial court that it 

should instruct the Phase I jury on “fraud by concealment” because 

“not only did [the Engle defendants] speak, they spoke constantly to 

the public; and because of that they had a duty to tell the whole 

truth.” Prentice echoes this theme in her brief here, where she 

describes “a campaign of doubt unprecedented in American 
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history.” She says that the Engle defendants for decades fostered a 

“false controversy” over the health effects and addictiveness of 

smoking; “attacked accurate health warnings”; used front 

organizations to “ventriloquize[] the conspirators’ controversy 

message to the American public”; and even lied publicly to 

Congress. This is the opposite of silence.

Prentice also argues that requiring an Engle progeny plaintiff 

to prove reliance on a statement disregards the fact that, having 

chosen to speak, the Engle defendants took on a duty to disclose. 

But we do not question that the Engle defendants had a duty to 

disclose or that they breached that duty—the approved Phase I 

concealment findings require us to take those things as a given. 

The role of the reliance element now is to require proof that the 

Engle defendants’ breach of their duty caused harm to the plaintiff 

in an Engle progeny case. See Ford New Holland, Inc. v. ProctorRussell Tractor Co., Inc., 630 So. 2d 395, 399 (Ala. 1993) (“The 

requirement that the plaintiff show that a failure to disclose an 

existing material fact created a false impression is as basic to an 

action alleging fraudulent suppression as the requirement that the 

plaintiff establish the defendant’s duty to disclose.”).
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Here we emphasize that “[t]he type of interest protected by the 

law of deceit is the interest in formulating business judgments 

without being misled by others—in short, in not being cheated.” 

Harper, et al., supra p.11, § 7.1, at 378. This interest is different in 

kind from a freestanding interest in being informed by others. The 

common law of fraud does not protect the latter interest.

Prentice is therefore wrong when she argues that the decisive 

question here is “whether the plaintiff would have behaved the 

same way had she known the true facts.” Under that theory, it 

would not matter whether an Engle defendant’s fraudulent conduct 

caused an Engle plaintiff in the first instance to form a false belief 

about the health effects or addictiveness of smoking cigarettes; all 

that would matter is whether additional disclosure by the 

defendants would have cured any such misapprehension, whatever 

its source. But that type of causal relationship between a

defendant’s conduct and a plaintiff’s injury is not reliance. And 

Prentice’s theory invites pure speculation over questions as basic as 

whether an Engle plaintiff would even have heard and given 

credence to additional disclosures from the Engle defendants.
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Finally, we address Prentice’s overarching contention that this 

Court’s decision in Engle III to give “res judicata effect” to the Phase 

I “fraud by concealment” findings but not to the “fraud and 

misrepresentation” findings necessarily requires us to accept 

Prentice’s position on reliance. As to “fraud and

misrepresentation,” the Phase I jury answered yes to this question: 

“Did one or more of the Defendants make a false statement of a 

material fact, either knowing the statement was false or misleading, 

or being without knowledge as to its truth or falsity, with the 

intention of misleading smokers?” In Engle III, we held that this 

finding “cannot stand” for res judicata purposes in individual class 

member actions, because the finding is “nonspecific” and 

“inadequate to allow a subsequent jury to consider individual 

questions of reliance and legal cause.” Engle III, 945 So. 2d at

1255.

Prentice reads far too much into this Court’s unexplained 

distinction between the fraud findings that we approved in Engle III

and the ones that we did not.3 Our Court drew this distinction on 

3. Whatever the difference between the two might be, it is 

hardly self-evident. The Restatement (Second) of Torts says that the 
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its own, unprompted by the parties and without the benefit of 

argument on the point. We adopted the distinction as a supposedly 

“pragmatic solution” to the perceived problem of how to decertify 

the Engle class without wasting the year-long Phase I proceedings.

Our Engle III opinion did not explain what made the Phase I 

finding on fraud by concealment sufficiently “specific,” nor did our

decision elaborate on how that finding was to be used in the 

progeny cases. Most importantly, nowhere in Engle III—or in any of 

our Engle follow-on cases—did our Court express any view as to

two theories of fraud are sometimes interchangeable. See 

Restatement (Second) of Torts § 551 cmt. g, § 529 (Am. L. Inst. 

1977). And, as the Arizona Supreme Court has observed, 

“misrepresentation and concealment both may constitute actionable 

fraud, and in some cases may factually be but two sides of the same 

legal coin.” Madisons Chevrolet, Inc. v. Donald, 505 P.2d 1039, 

1042 (Ariz. 1973). This Court itself has observed that “where a 

failure to disclose a material fact is calculated to induce a false 

belief, the distinction between concealment and affirmative 

representations is tenuous.” Johnson v. Davis, 480 So. 2d 625, 628 

(Fla. 1985). See also Little v. First Cal. Co., 532 F.2d 1302, 1304 n.4 

(9th Cir. 1976) (“The categories of ‘omission’ and ‘misrepresentation’

are not mutually exclusive. All misrepresentations are also 

nondisclosures, at least to the extent that there is a failure to 

disclose which facts in the representation are not true.”). As we 

have already explained, even in concealment cases the defendant’s 

fraudulent conduct must convey to the plaintiff a representation, 

one that is capable of being believed or disbelieved.
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what an Engle progeny plaintiff must prove to establish the reliance 

element of a concealment-based fraud claim. Our obligation now is 

to answer that question by recourse to longstanding principles of 

the common law of fraud, not to invent a new, Engle-only law of 

reliance.

C.

Against this backdrop, we readily agree with the First District

that RJR’s requested jury instruction on concealment conspiracy 

was correct and that the trial court’s instruction was both 

erroneous and prejudicial. The trial court here instructed the jury 

to determine “whether the conspiracy to withhold health 

information or information regarding addiction and any acts proven 

in furtherance of that conspiracy were relied upon by John Price to 

his detriment and were a legal cause of John Price’s death.” We do 

not know what it means to rely on a conspiracy, and we doubt that 

the jury did, either. The jury here could reasonably have been 

misled into finding liability based on mere nondisclosure, without

connecting that nondisclosure to Price’s injury.

Similarly, it is error in an Engle progeny case to instruct the 

jury that the plaintiff can prevail on fraudulent concealment and 
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concealment conspiracy by proving “reliance on concealment” or 

“reliance on an omission.” For one thing, the concept of reliance on 

a concealment or omission—reliance on information hidden from 

the plaintiff—is unavoidably confusing and maybe even 

nonsensical. See duPont v. Brady, 828 F.2d 75, 78 (2d Cir. 1987) 

(“[I]n instances of total non-disclosure, . . . it is of course impossible 

to demonstrate reliance.” (quoting Titan Group, Inc. v. Faggen, 513 

F.2d 234, 239 (2d Cir. 1975))). And in practical terms, by telling an 

Engle progeny jury to look for proof of reliance on a concealment or 

omission, a trial court erroneously invites the jury to find liability

without causation.

III.

We approve the First District’s decision in the case under 

review, to the extent it is consistent with this opinion. We 

disapprove the decisions of the Second, Third, and Fourth Districts 

in Duignan, Chadwell, and Burgess, to the extent they are 

inconsistent with this opinion.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, COURIEL, and 

GROSSHANS, JJ., concur.

LABARGA, J., dissents with an opinion.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

Today’s decision by the majority disturbs decades of settled 

law regarding Engle progeny litigation and injects uncertainty into 

the remaining Engle progeny cases. Because I cannot agree with 

such a fundamental shift in this Court’s jurisprudence, I 

respectfully dissent.

In this Engle progeny case, the jury found in favor of Linda 

Prentice (Prentice), as personal representative of the Estate of John 

C. Price (Price), the now deceased smoker in this litigation, on 

Prentice’s claims for strict liability, negligence, and the intentional 

tort of concealment conspiracy. Price, who throughout his adult life 

smoked multiple packs of R.J. Reynolds cigarettes per day 

(including during the heyday of the Marlboro Man, Joe Camel and 

the Old Gold Dancers), was afflicted with chronic obstructive 

pulmonary disease (COPD)—a disease that ultimately led to his 

death.

The focus of this appeal is whether Prentice was required to 

present direct evidence showing that Price relied on a statement 
- 27 -

made by an Engle defendant to satisfy the reliance element of the 

concealment claims, or whether the reliance element may be 

inferred from the now well-known pervasive and misleading 

advertising campaigns pursued by tobacco companies over the 

years.

Until today, it was settled law in Florida that a jury in an Engle

progeny case was permitted to infer reliance based upon evidence of 

the smoker’s own history coupled with the tobacco industry’s 

pervasive advertising and creation of a false controversy about the 

risks of smoking, without the necessity of proving that the smoker 

relied on any specific statement by tobacco companies. After all, 

Engle findings conclusively established that the tobacco companies 

agreed to conceal, omit, and misinterpret information regarding the 

health effects of cigarettes or their addictive nature, with the 

intention that smokers and the public would rely on this 

information to their detriment. See Engle v. Liggett Grp., Inc., 945 

So. 2d 1246, 1257 n.4 (Fla. 2006).

To that end, the notion of requiring proof of reliance based 

upon a specific statement by the tobacco industry was soundly 

rejected by a majority of Florida appellate courts, notably beginning 
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with the seminal case of R.J. Reynolds Tobacco Co. v. Martin, 53 So. 

3d 1060 (Fla. 1st DCA 2010), rendered by the First District Court of 

Appeal twelve years ago. There, the First District rejected the 

requirement of proof of reliance based upon a statement made by 

an Engle defendant. The court deemed the following persuasive:

[T]he record contains abundant evidence from which the 

jury could infer Mr. Martin’s reliance on pervasive 

misleading advertising campaigns for the Lucky Strike 

brand in particular and for cigarettes in general, and on 

the false controversy created by the tobacco industry 

during the years he smoked aimed at creating doubt 

among smokers that cigarettes were hazardous to health.

Id. at 1069 (emphasis added).

However, eight years after Martin, the First District 

inexplicably made a marked shift regarding what constitutes proof 

of reliance. See R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 

536 (Fla. 1st DCA 2018). In Whitmire, the First District held that to 

prevail on a claim of fraudulent concealment, “Engle [progeny] 

plaintiffs must prove detrimental reliance on fraudulent 

statements.” Id. at 537. The court stated: “The circumstantial 

evidence must establish individualized reliance by the plaintiff, and 

this cannot be shown through mere presentation of general 

evidence of the plaintiff's life and behavior, where, as here, that 
- 29 -

evidence gives no indication that the plaintiff relied on any false 

information disseminated by the tobacco companies.” Id. at 540-

41.

Notably however, the First District did not recede from Martin, 

which as Judge Makar noted in his dissent, “remains applicable 

law.” Id. at 542 (Makar, J., dissenting). Nonetheless, the First 

District’s decision in Whitmire paved the way for the court’s 2019 

decision in Prentice, and ultimately, the conflict that the majority 

decides today. These decisions, though, rendered the First District 

an outlier among the district courts of appeal.

Since Martin, a majority of the district courts of appeal have 

rejected the requirement of reliance on a specific statement to prove 

fraudulent concealment. See, e.g., Philip Morris USA, Inc. v. 

Duignan, 243 So. 3d 426, 441-42 (Fla. 2d DCA 2017) (“[Florida] 

courts have refused to hold that an Engle progeny plaintiff must 

identify specific statements that he read or heard and relied upon in 

making a decision regarding cigarette smoking in order to prevail.”).

For instance, in R.J. Reynolds Tobacco Co. v. Burgess, 294 So. 

3d 910 (Fla. 4th DCA 2020), the Fourth District Court of Appeal 

noted the First District’s pivot in Whitmire and observed that 
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Whitmire “appears to be in tension with its earlier Martin decision.” 

Id. at 913. The court in Burgess acknowledged that Whitmire

“found substantially similar evidence of detrimental reliance to be 

insufficient as a matter of law,” but determined nonetheless:

Here, we conclude that the trial court properly 

denied RJR’s motion for directed verdict. The plaintiff 

presented sufficient evidence from which the jury could 

infer that Mr. Burgess detrimentally relied upon the 

tobacco industry’s pervasive advertising and creation of a 

false controversy about the risks of smoking. Mr. 

Burgess did not need to prove that he relied on any

specific statement from the tobacco industry. Because 

the evidence showed that the tobacco industry delivered 

a fraudulent message to the smoking public, it was 

“immaterial whether it passe[d] through a direct or 

circuitous channel in reaching” Mr. Burgess.

Burgess, 294 So. 3d at 913-14 (emphasis added) (quoting Phillip 

Morris USA v. Naugle, 103 So. 3d 944, 947 (Fla. 4th DCA 2012)).

Similarly, in Philip Morris USA, Inc. v. Chadwell, 306 So. 3d 

174, 183-84 (Fla. 3d DCA 2020), the Third District Court of Appeal 

acknowledged the decisions in Whitmire and Prentice but rejected 

their reasoning:

Here, the record contains sufficient evidence from 

which the jury could infer Mr. Chadwell's reliance on 

statements, advertisements, or omissions via the tobacco 

companies’ pervasive misleading advertising campaigns. 

We reject the Whitmire holding to the extent it appears to 

require an Engle-progeny plaintiff to show that a smoker 
- 31 -

explicitly relied to his detriment on specific “false or 

misleading statements,” as opposed to a smoker’s 

misapprehension concerning a material fact the 

conspirators concealed from the smoker in furtherance of 

their agreement to conceal or omit information regarding 

the health effect or addictive nature of cigarettes, as 

previously allowed by many Florida courts when the 

circumstances of a given case so warranted.

Id. at 184 (emphasis added).

Despite the sound reasoning set forth in these decisions, today 

the majority concurs with the First District’s decision in Prentice 

and lays to rest any doubt about whether an Engle progeny plaintiff 

must prove reliance on a statement made by an Engle defendant or 

co-conspirator. However, in doing so, the majority not only 

disregards the point of the Engle findings, but it also disregards the 

importance of the concept of proof of facts by inference in our 

jurisprudence.

An inference, unlike a presumption, is “[a] logical and 

reasonable conclusion of a fact not presented by direct evidence but 

which, by process of logic and reason, a trier of fact may conclude 

exists from the established facts.” Golden Yachts, Inc. v. Hall, 920 

So. 2d 777, 780-81 (Fla. 4th DCA 2006) (quoting Black’s Law 

Dictionary 778 (6th ed. 1990). Whether the inferred fact is found to 
- 32 -

exist will be decided by the trier of fact. Charles W. Ehrhardt, 

Florida Evidence § 301.1 (2021 ed.).

Proof of fact by inference is a recognized standard in Florida 

jurisprudence. It is often a substantial factor in the consideration 

of motions for directed verdicts in civil actions. For instance, in 

Owen v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001), 

this Court concluded that the directed verdicts in a slip and fall 

case at a supermarket were erroneously entered because the 

condition of the substance (a piece of banana) alleged to have 

caused the fall raised a basis for establishing the store’s 

constructive knowledge. The Court noted that whether the aging of 

the banana occurred before it fell or whether the aging occurred on 

the floor is an issue for the jury, as are the reasonable inferences 

from the failure to sweep the floors regularly. Id. at 332.

In reaching this conclusion, the Court reasoned that appellate 

courts “reviewing the grant of a directed verdict must view the 

evidence and all inferences of fact in the light most favorable to the 

nonmoving party, and can affirm a directed verdict only where no 

proper view of the evidence could sustain a verdict in favor of the 

nonmoving party.” Id. at 329 (emphasis added) (citing Frenz 
- 33 -

Enters., Inc. v. Port Everglades, 746 So. 2d 498, 502 (Fla. 4th DCA 

1999)).

Additionally, in Florida civil cases, a jury may infer negligence 

when the concept of res ipsa loquitur has been established. This 

Court has explained:

Res ipsa loquitur is not a substantive rule of law, 

but is rather a rule of evidence. It permits the jury (but 

not the court in a jury trial) to draw an inference of 

negligence where the instrument causing an injury is 

shown to have been under the exclusive management 

and control of the party charged with negligence, and an 

accident has occurred from it that under circumstances 

of due care would not have occurred in the ordinary 

course of events, except for negligent handling by the 

party having control of the instrument causing injury. 

Turner, Law of Implied Negligence, par. 1, p. 3.

Am. Dist. Elec. Prot. Co. v. Seaboard Air Line Ry. Co., 177 So. 294, 

296 (Fla. 1937) (emphasis added). Consistent with this language, 

the standard jury instruction on res ipsa loquitur provides:

If you find that ordinarily the [incident] [injury] would not 

have happened without negligence,

[and that the (item) causing the injury was in the 

exclusive control of (defendant) at the time it caused the 

injury,] . . .

you may infer that (defendant) was negligent unless, 

taking into consideration all of the evidence in the case, 

you find that the (describe the event) was not due to any 

negligence on the part of (defendant). 
- 34 -

Fla. Std. Jury Instr. (Civ.) 401.7 (footnote omitted) (emphasis 

added).4

Moreover, in the business litigation context, Florida courts 

have utilized the sanction of adverse evidentiary inferences in cases 

involving negligent spoliation of evidence by a party to address the 

lack of evidence. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 

346-47 (Fla. 2005).

So firmly ingrained is the use of inferences in our 

jurisprudence, that it has been codified in Florida’s Evidence Code. 

“In 1976, presumptions were codified into the Florida Evidence 

Code,” and they have “remained essentially unchanged.” Universal 

Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 53 (Fla. 2012). Section 

90.301(3), Florida Statutes (2021), provides: “Nothing in this 

chapter shall prevent the drawing of an inference that is 

appropriate.”5

4. The instruction also provides alternative language for 

“cases involving exploding bottles or other instrumentalities that are 

no longer in the defendant’s control at the time of plaintiff’s injury.” 

Fla. Std. Jury Instr. (Civ.) 401.7 (Note on Use).

5. Section 90.301(4), Florida Statutes (2021), limits the 

application of sections 90.301-.304 to civil actions and proceedings.
- 35 -

Paradoxically, this Court will readily allow a conviction for 

first-degree murder to stand entirely on inference even though the 

evidentiary burdens and potential consequences in criminal cases 

are much greater than in civil cases. In Bush v. State, 295 So. 3d 

179 (Fla. 2020), where this Court abandoned the long-standing 

heightened standard of review applicable to convictions in death 

penalty cases based solely on circumstantial evidence, this Court 

gave great weight to the strength of jury inference.6 Explaining its 

decision, the Court stated:

Indeed, if we were to reject the jury’s verdict and the 

reasonable inferences the jury must have drawn from the 

evidence to reach that verdict, we would, in effect, be 

saying that a jury is required to entertain “a mere 

possible doubt, a speculative, imaginary, or forced 

doubt,” contrary to the standard jury instructions given 

in all criminal cases. See Fla. Std. Jury Inst. (Crim.) 3.7.

Bush, 295 So. 3d at 201 (emphasis added).

It defies logic to say that inference can be reliable enough to 

secure a criminal conviction and resulting sentence of death, but at 

6. “Circumstantial evidence is proof of certain facts and 

circumstances from which the trier of fact may infer that the 

ultimate facts in dispute existed or did not exist.” Davis v. State, 90 

So. 2d 629, 631 (Fla. 1956).
- 36 -

the same time so unreliable that it can never, on its own, 

demonstrate reliance in the Engle civil context. If anything, the 

situation should be reversed, with inference receiving heightened 

scrutiny in the criminal context, and receiving some deference in 

the civil context.

Such deference is entirely appropriate with respect to proof of 

fraudulent concealment in Engle progeny cases. I fully agree with 

the Third District’s conclusion in Chadwell, 306 So. 3d 174, that 

“the element of reliance can be inferred from the now well-known 

pervasive and misleading advertising campaigns pursued by 

tobacco companies over the years.” Id. at 182. Here, Price 

described the impact of the tobacco industry’s pervasive advertising 

campaign on his smoking decisions, and under any process of logic 

or reason, satisfied the reliance element in question.

The dissent in Prentice provides a clear picture of how the 

pervasiveness of the misleading advertising by the tobacco industry 

impacted not only Price’s smoking decisions, but surely also the 

decisions of countless similarly situated persons. According to the 

dissent, when asked how R.J. Reynolds’ advertisements injured 

him, Price testified that “they presented the ‘Marlboro Man’ as if to 
- 37 -

‘make everything look hunky-dory’ and ‘Joe Camel’ and the ‘Old 

Gold Dancers’ who ‘made [smoking] look like the thing to do, the in 

crowd. You’re in the in crowd.’ ” R.J. Reynolds Tobacco Co. v. 

Prentice, 290 So. 3d 963, 969 (Fla. 1st DCA 2019) (Makar, J., 

dissenting).

In other words, “Mr. Price’s deposition testimony (read at trial) 

indicates that the pervasive tobacco advertisements duped him into 

thinking smoking was the thing to do when the tobacco companies 

knew, but concealed, smoking’s devastating health consequences, 

which is precisely the type of evidence that demonstrates 

detrimental reliance.” Id. at 970. Based on this evidence, the jury 

was entitled to infer that the misleading advertisements 

detrimentally affected Mr. Price’s smoking behavior, thereby 

establishing reliance. By requiring reliance on a specific statement, 

the majority has removed all permissible inferences of fact 

concerning the causal relationship between the tobacco industry’s 

advertisement campaigns and the smoking decisions of Engle

progeny plaintiffs, such as Price. In doing so, the majority has not 

only encroached on the exclusive province of the jury, but it has 
- 38 -

made it virtually impossible for Engle plaintiffs to maintain a 

fraudulent concealment claim.

Because I cannot agree with such a consequential and 

erroneous shift in the well-established jurisprudence of Engle

progeny litigation in our state, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions

First District – Case No. 1D17-2104

(Duval County)

Celene H. Humphries, Thomas J. Seider, and Shea T. Moxon of 

Brannock Humphries & Berman, Tampa, Florida; Gregory D. 

Prysock, Katherine M. Massa, and Antonio Luciano of Morgan & 

Morgan, P.A., Jacksonville, Florida, and Keith R. Mitnik of Morgan 

& Morgan, P.A., Orlando, Florida,

for Petitioner

Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, 

Tampa, Florida; and Jason T. Burnette, Brian Charles Lea, 

Stephanie E. Parker, John Walker, and Emily Baker of Jones Day, 

Atlanta, Georgia, Charles R.A. Morse of Jones Day, New York, New 

York, and Michael A. Carvin of Jones Day, Washington, District of 

Columbia,

for Respondent

Christine R. Davis and Joseph H. Lang, Jr. of Carlton Fields, P.A., 

Tallahassee, Florida; and William W. Large of Florida Justice 

Reform Institute, Tallahassee, Florida,

for Amicus Curiae Florida Justice Reform Institute
- 39 -

Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, 

Washington, District of Columbia; and Jesse Panuccio of Boies 

Schiller Flexner LLP, Fort Lauderdale, Florida,

for Amicus Curiae Philip Morris USA Inc.