DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PHILIP MORRIS USA INC.,

Appellant,

v.

BERNICE MCCALL, individually and as Personal Representative of the 

Estate of MARTIN MCCALL,

Appellee.

No. 4D16-2016

[December 13, 2017]

Appeal and cross-appeal from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case 

No. 2007CV36888 (19).

David F. Northrip and William P. Geraghty of Shook Hardy & Bacon 

LLP, Kansas City, Missouri, and Miami, and Frances Daphne O’Connor 

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

DC, for appellant.

Shea T. Moxon, Celene H. Humphries, Maegen Peek Luka and Thomas 

J. Seider of Brannock & Humphries, Tampa, and Alex Alvarez of The 

Alvarez Law Firm, Coral Gables, and Jordan L. Chaikin of Chaikin Law 

Firm PLLC, Fort Myers, for appellee.

DAMOORGIAN, J.

In this Engle1 progeny case, Philip Morris USA Inc. (“PM”) appeals a 

final judgment entered in favor of Bernice McCall (“Plaintiff”), individually 

and as the personal representative of the estate of Martin McCall 

(“Decedent”), on her survival and loss of consortium claims. PM argues 

that the loss of consortium award must be vacated because the claim was 

barred by the applicable statute of limitations. PM also argues, as it does 

in every Engle appeal, that the court’s application of the Engle common 

core findings violated its due process rights. Plaintiff cross-appeals, 

asserting that the court erred in instructing the jury on the elements 

necessary to establish fraudulent concealment and conspiracy to commit 

 

1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2

fraudulent concealment as well as the legal effect of cigarette warning 

labels. Additionally, Plaintiff argues that the court erred in reducing the 

jury’s award by its allocation of the Decedent’s comparative fault. We 

continue to reject PM’s due process argument based on Philip Morris USA, 

Inc. v. Douglas, 110 So. 3d 419, 435−36 (Fla. 2013), and likewise reject 

Plaintiff’s comparative fault argument based on R.J. Reynolds Tobacco Co. 

v. Schoeff, 178 So. 3d 487, 495−96 (Fla. 4th DCA 2015). We also find no 

error in the court’s instructions on Plaintiff’s fraudulent concealment and 

conspiracy to commit fraudulent concealment claims. However, we find 

merit in both parties’ remaining positions and, for the reasons set forth 

below, reverse and remand for a new trial. 

The Facts

Plaintiff sued PM pursuant to Engle, alleging that her deceased 

husband died from lung cancer caused by an addiction to smoking 

cigarettes manufactured and marketed by PM. Plaintiff alleged causes of 

action for strict liability, fraud by concealment, conspiracy to commit fraud 

by concealment, and negligence. Plaintiff sought relief for her negligence 

claims under the Florida Wrongful Death Act and, in the alternative, 

asserted a survival claim for damages based on the injuries suffered by 

Decedent prior to his death.2 In conjunction with her alternative survival 

claim, Plaintiff also asserted a loss of consortium claim. In response, PM 

asserted several affirmative defenses, including bar by the statute of 

limitations. 

The case was set to be tried in two phases. In the first phase, the jury 

was asked to determine if Decedent was a member of the Engle class and, 

if so, liability, compensatory damages, and entitlement to punitive 

damages. The second phase was reserved for the determination of the 

proper amount of punitive damages, if any. 

 

2 Plaintiff’s alternative survival claim is dubbed a “survival” claim due to the 

survival action statute, section 46.021, Florida Statutes (2007), which preserves 

actions the decedent filed or may have filed prior to his or her death. Based on 

this statute, a personal representative may bring and maintain a personal injury 

action on behalf of the decedent. If, however, the personal injury was the cause 

of the decedent’s death, the personal injury action “abates” and becomes a 

wrongful death cause of action under the Florida Wrongful Death Act. § 768.20, 

Fla. Stat. (2007). “[I]t is permissible for a personal representative to pursue both 

a claim for survival damages and an alternative wrongful death claim where the 

cause of the decedent’s death may be disputed by the parties.” Capone v. Philip 

Morris USA, Inc., 116 So. 3d 363, 378 (Fla. 2013).
3

Evidence

During the first phase of trial, Plaintiff presented the following evidence 

concerning the Decedent’s smoking history, illness, and death.

Decedent was born in 1940 and began smoking cigarettes in the early 

1950s when he was twelve or thirteen years old and continued to smoke 

them for the next thirty-plus years. Plaintiff testified that when she met 

Decedent in 1971, he was smoking about a pack a day. Decedent primarily 

smoked cigarettes with filters, which according to Plaintiff, Decedent 

believed were “safe” to smoke. Plaintiff testified that Decedent’s belief 

came from advertisements, specifically Parliament advertisements, which 

stated that cigarettes with filters were “lower in tar and nicotine.” 

Decedent went so far as to cut out the filter of a smoked cigarette and show 

it to Plaintiff, explaining that the black spots on the filter were the filteredout nicotine and tar. 

Decedent was diagnosed with lung cancer in September of 1992, when 

he was 52 years old. Shortly after his diagnosis, Decedent underwent 

surgery to remove a cancerous lobe of his right lung. After his discharge 

from the hospital, Decedent began radiation and chemotherapy treatment. 

Not long thereafter, Decedent was readmitted to the hospital for breathing 

complications. Decedent died in the hospital in November of 1992. The 

causes of death listed on Decedent’s death certificate were “adult 

respiratory distress syndrome” and “possible fungal pneumonia.”

Plaintiff also presented testimony from several experts concerning the 

actions of the tobacco companies and the health effects of smoking. This 

testimony, like the testimony in almost every Engle case, established that 

the tobacco companies knew of the addictive nature of nicotine and the 

harmful effects of smoking well before the public health community did 

and, over a fifty-year period of time, took concerted efforts to obfuscate 

this information while encouraging people to smoke through marketing 

efforts. For example, the tobacco companies marketed filtered cigarettes 

as having fewer health risks because they contained less tar and nicotine 

when in fact, they knew the opposite. 

PM’s Motion for Directed Verdict

At the close of Plaintiff’s evidence, PM moved for a directed verdict on 

Plaintiff’s alternative loss of consortium claim. PM argued that Plaintiff’s 

claim accrued, at the latest, when Decedent died in 1992. As Plaintiff did 

not file her suit until 2007, nearly fifteen years later, PM maintained that 

Plaintiff’s loss of consortium claim was barred by the applicable four-year 
4

statute of limitations. Plaintiff countered that as Decedent’s survivor, she

was an Engle class member and, therefore, was entitled to the tolling effect 

of the initial Engle lawsuit filing. The court agreed with Plaintiff and denied 

PM’s motion. 

Jury Instructions

On the reliance element of Plaintiff’s fraudulent concealment claim, the 

court instructed the jury as follows:

On this claim, the issue for your determination is whether 

[Decedent] reasonably relied to his detriment on any 

statement of material fact by PM USA that concealed or 

omitted material information not otherwise known or available 

concerning the health effects or addictive nature of smoking 

cigarettes and, if so, whether such reliance was a legal cause 

of [Decedent’s] lung cancer. 

Similarly, the conspiracy instruction contained the following direction:

On this claim, the issue for your determination is whether 

[Decedent] reasonably relied to his detriment on statements 

made in furtherance of PM USA’s agreement to conceal or omit 

information concerning the health effects or addictive nature 

of cigarettes; and, if so, whether such reliance was a legal 

cause of his lung cancer. 

Plaintiff opposed these instructions, arguing that requiring reliance on 

a “statement” was too narrow because it precluded liability based solely on

fraudulently concealed information. Instead, Plaintiff argued that the jury 

should be instructed that PM could be liable if Decedent “reasonably relied 

to [his] detriment on an act or omission taken in furtherance of [PM’s] 

agreement to conceal or omit information concerning the health effects or 

addictive nature of cigarettes . . . .” 

Per PM’s request, the court also provided the jury with the following 

instruction on the effect of cigarette warning labels:

The warning labels placed on cigarette packs by [PM] and 

other tobacco companies complied with federal law. After July 

1, 1969, [PM], and other tobacco companies had no obligation 

to place any additional warnings on their cigarette packages.
5

Further, as long as the cigarette packs bear the federally 

mandated warnings, cigarette advertising after July 1, 1969 

cannot be the subject of any claim that the advertising 

undermined or neutralized the warnings or made them less 

effective.

Plaintiff objected to this instruction, arguing that it was inapplicable 

because she was not bringing a failure to warn claim. Alternatively, 

Plaintiff argued that the instruction implied PM was without liability for 

cigarettes sold after July 1, 1969 so long as there were labels on the packs. 

Therefore, Plaintiff asserted that the instruction should include language 

making it clear that PM could still be liable for false and misleading 

information provided in its advertising. The court rejected Plaintiff’s 

arguments and provided the instruction requested by PM.

Closing Arguments

During its closing argument, PM’s counsel repeatedly referred to the 

opposed warning label instruction. After arguing for some time that 

Decedent was not truly addicted to cigarettes, PM’s counsel then argued 

that, contrary to Plaintiff’s testimony, Decedent did not smoke filtered 

cigarettes because he thought they were safe. It then asked the jury to 

consider the cigarette warning label instruction, stating that “the 

instruction kills the plaintiff’s whole claim. Kills the plaintiff’s whole 

claim.” Plaintiff objected to this argument and, although the court 

sustained her objection, PM’s counsel continued by arguing: “When you 

go back and you read the instructions and you consider the evidence, 

you’ll see that the plaintiff can’t maintain their claim when you consider 

the evidence we’ve just talked about and the court’s instructions.” 

The Verdict

In its verdict, the jury found that Decedent was a member of the Engle 

class by virtue of its finding that Decedent was addicted to cigarettes 

containing nicotine and that such addiction was the legal cause of his lung 

cancer. It also found that smoking cigarettes manufactured by PM was a 

legal cause of Decedent’s lung cancer. However, the jury found that lung 

cancer was not a legal cause of Decedent’s death. Accordingly, the jury 

did not award any wrongful death damages. It did, however, find in favor 

of Plaintiff on her alternative survival and loss of consortium claims and 

awarded Plaintiff $175,000 for Decedent’s pain and suffering and 

$175,000 for Plaintiff’s loss of consortium. 
6

The jury found in favor of PM on both of Plaintiff’s intentional tort 

claims, finding that Decedent did not reasonably rely to his detriment on 

any statement made by PM which concealed or omitted material 

information not already known or available to him and that, likewise, 

Decedent did not reasonably rely to his detriment on any statement made 

in furtherance of PM’s agreement with other tobacco companies to conceal

or omit material information. Based on the jury’s intentional tort findings, 

the matter did not proceed to the punitive phase. This appeal and crossappeal follows.

Analysis

On Direct Appeal

PM argues that the court erred in denying its statute of limitations 

based motion for directed verdict on Plaintiff’s loss of consortium claim. 

Plaintiff counters that the court ruled correctly because she, individually, 

is an Engle class member and, in the alternative, her loss of consortium 

claim was timely because it was “intertwined” with the survival claim she 

brought on behalf of Decedent. We hold that Plaintiff’s claim was time 

barred.

Our analysis on this issue necessarily begins with some procedural

background on the Engle class. The now-voluminous Engle litigation 

commenced on May 5, 1994, when a group of smokers filed a class action 

lawsuit against numerous tobacco industry organizations and cigarette 

companies, including PM, seeking damages for smoking-related illnesses 

and deaths. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 693 (Fla. 

2015). On November 21, 1996, the trial court recertified the Engle class

as the more than 700,000 Florida “citizens and residents, and their 

survivors, who have suffered, presently suffer or who have died from 

diseases and medical conditions caused by their addiction to cigarettes 

that contain nicotine.” Engle, 945 So. 2d at 1274, 1258. The Florida 

Supreme Court later confirmed that the class recertification date was the 

class membership cut-off date. Id. at 1275. Based on the foregoing, the 

filing of the Engle lawsuit tolled the statute of limitations for Engle class

member causes of action accruing no earlier than May 5, 1990 (four years 

before the filing date) and no later than November 21, 1996 (the class 

recertification and membership cut-off date). See R.J. Reynolds Tobacco 

Co. v. Ciccone, 190 So. 3d 1028, 1042 (Fla. 2016) (Polston, J., dissenting) 

(explaining the effects of the filing and membership cut-off dates). 

The Engle class action jury went on to find the tobacco defendants liable 

for the class’ injuries and in doing so, made a myriad of “common core”
7

findings regarding the health effects of smoking cigarettes, the addictive 

properties of nicotine, and the tobacco companies’ actions. Engle, 945 So. 

2d at 1257 n.4. After prolonged litigation regarding the propriety of 

continued class action treatment, on December 21, 2006, the Florida 

Supreme Court decertified the class and vacated the class action jury’s 

punitive damages award. Id. at 1254. However, the court “did not 

decertify the class in the traditional sense, but conferred upon the class 

members two benefits: (1) each class member’s time to file an individual 

suit would be equitably tolled to allow filing within one year of the court’s 

decision, and (2) in the individual action, the Engle jury’s common core 

findings in Phase I would be given res judicata effect.” Ciccone, 190 So. 

3d at 1037 (internal quotation marks and citations omitted). Based on 

this decision, persons meeting the Engle class member definition could file 

lawsuits as late as December 21, 2007, for causes of action which accrued 

between May 5, 1990, and November 21, 1996. Id. at 1042

This Court has previously rejected the notion that a surviving spouse 

of a smoker is an Engle class member in his or her individual right. In 

Fanali v. R.J. Reynolds Tobacco Co., 220 So. 3d 1209, 1210−11 (Fla. 4th 

DCA 2017), the surviving spouse of a deceased smoker sued a tobacco 

company under the Florida Wrongful Death Act. Because it was 

undisputed that the deceased smoker knew he had a smoking related 

injury before May 5, 1990, the statute of limitations bar date for Engle 

class membership, the tobacco company moved for and was granted 

summary judgment. Id. The surviving spouse appealed, arguing, just as 

Plaintiff does here, that she met the definition of an Engle class member 

because she was a survivor of a Florida resident who died from a smoking 

related disease. Id. Since the deceased smoker did not die until 1993 and 

the statute of limitations on a wrongful death claim is two years, the 

surviving spouse maintained that the statute of limitations on her 

wrongful death claim did not begin to run, much less expire, before the 

May 5, 1990 bar date. Id. 

We rejected the surviving spouse’s class membership argument. Id. 

Reasoning that “[t]he determination of membership in the Engle class has 

always focused on the smoker, not on the survivors,” we concluded that 

“[t]he term ‘survivors’ in the class definition is best interpreted as including 

survivors of addicted smokers who were Engle class members.” Id. at 

1211−12 (emphasis added). This holding establishes that smokers whose 

claims accrued during the May 5, 1990−November 21, 1996, Engle window 

are the only potential Engle class members and that any survivor filing 

suit via Engle must establish the smoker’s class membership as to each 

claim. Id. In line with our decision in Fanali, we now conclude that 

Plaintiff, a survivor of a smoker who suffered from a smoking-related 
8

disease, is not an Engle class member for purposes of her own individual 

claims. Id. at 1212. Although not binding, it is worth noting that federal 

courts considering Engle cases have reached the same conclusion. See, 

e.g., Elkins v. R.J. Reynolds Tobacco Co., 65 F. Supp. 3d 1333, 1338 (M.D. 

Fla. 2014) (affirming that “spouses asserting loss of consortium claims are 

not Engle plaintiffs for purposes of entitlement to Engle tolling”).

Having determined that Plaintiff is not entitled to the tolling benefit of 

Engle class membership for purposes of claims brought in her individual 

right, we must next consider whether her loss of consortium claim was a 

separate and distinct cause of action belonging to Plaintiff individually or 

merely an additional remedy available for the survival claim Plaintiff 

brought on Decedent’s behalf. If it was nothing more than an additional 

remedy which could be sought based on the timely pled survival action, 

then it appears that the claim was not barred by the statute of limitations. 

Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1229 (Fla. 2016) 

(holding that Engle class members’ requests for punitive damages in 

conjunction with negligence and strict liability claims were not barred by 

the statute of limitations because, although such requests were not made 

in Engle, they were not subject to a separate statute of limitations as “a 

claim for punitive damages is not a separate, free-standing cause of action 

subject to a separate statute of limitations, but is rather a remedy that can 

be sought based on any properly pled cause of action”). However, if it was

a free-standing cause of action unique to Plaintiff, then it was subject to a 

separate statute of limitations. 

Under the common law, a plaintiff may recover damages for the loss of 

consortium due to his or her spouse’s injury caused by the negligence of 

another. Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971). Consortium has 

been defined as:

[T]he companionship and fellowship of husband and wife and 

the right of each to the company, cooperation and aid of the 

other in every conjugal relation. Consortium means much 

more than mere sexual relation and consists, also, of that 

affection, solace, comfort, companionship, conjugal life, 

fellowship, society and assistance so necessary to a successful 

marriage.

Id.

Loss of consortium claims, while derivative causes of action based on 

the injury of the claimant’s spouse, are nevertheless separate and distinct 

causes of actions belonging solely to the claimant. See Metro. Dade Cty. v. 
9

Reyes, 688 So. 2d 311, 312 (Fla. 1996); Busby v. Winn & Lovett Miami, 

Inc., 80 So. 2d 675, 676 (Fla. 1955); Randall v. Walt Disney World Co., 140 

So. 3d 1118, 1121 (Fla. 5th DCA 2014). Accordingly, as loss of consortium 

claims are separate causes of action, they must be “timely” in their own 

right. See Gates, 247 So. 2d at 45 (“Where there is a cause of action 

brought by the injured husband pending, the wife’s consortium action, if 

not time barred, may be joined with her husband’s claim . . . .” (emphasis 

added)). Here, the statute of limitations on Plaintiff’s loss of consortium 

claim began to run in 1992, fifteen years before Plaintiff filed her lawsuit. 

Plaintiff’s loss of consortium claim was well out of range of any statute of 

limitations recognized in Florida and was, therefore, time barred. 

Further, we are not persuaded that Plaintiff’s loss of consortium claim 

was an additional remedy of the survivorship claim by analogy to the 

Florida Wrongful Death Act. While it is true that the Florida Wrongful 

Death Act allows for a surviving spouse to “recover for loss of the 

decedent’s companionship and protection and for mental pain and 

suffering” when a person dies as the result of a personal injury, this 

remedy is a creature of statute. § 768.21(2), Fla. Stat. (2007); see also

Nissan Motor Co. v. Phlieger, 508 So. 2d 713, 714 (Fla. 1987) (“Florida’s 

Wrongful Death Act does create a right of action in favor of statutory 

beneficiaries which was not recognized at common law.”). There is simply 

nothing in the common law automatically allowing for this remedy in a 

personal injury claim brought by the injured party. Rather, as discussed 

above, the spouse seeking consortium damages must bring a claim in his 

or her own right and prove that the injury affected his or her marriage to 

the injured party. See Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d 

840, 842 (Fla. 2d DCA 2011) (“When a jury finds that one spouse has 

sustained injuries as a result of the negligence of a third party, an award 

of damages to the other spouse for loss of consortium is not automatic. 

Instead, in order to prevail on a claim for loss of consortium, the claiming 

spouse must present competent testimony concerning the impact that the 

incident has had on the marital relationship.”). 

We note that although loss of consortium claims are subject to a 

separate statute of limitations, there is some ambiguity concerning 

whether an otherwise time barred loss of consortium claim could relate 

back to the injured spouse’s timely filed personal injury claim. The 

applicable Rule of Civil Procedure governing the relation-back of 

amendments provides, in pertinent part, that “[w]hen the claim or defense 

asserted in the amended pleading arose out of the conduct, transaction, 

or occurrence set forth or attempted to be set forth in the original pleading, 

the amendment shall relate back to the date of the original pleading.” Fla. 

R. Civ. P. 1.190(c). Until very recently, case law interpreting this rule 
10

established that newly added loss of consortium claims do not relate back 

to a timely pled personal injury action. W. Volusia Hosp. Auth. v. Jones, 

668 So. 2d 635, 636 (Fla. 5th DCA 1996) (holding that an untimely loss of 

consortium claim does not relate back to the date of the injured spouse’s 

timely suit); Daniels v. Weiss, 385 So. 2d 661, 663 (Fla. 3d DCA 1980) 

(same). Recently, the Florida Supreme Court disapproved of these cases 

to the extent that that they stood for the proposition that amended 

complaints which assert new and distinct causes of action can never relate

back to the date of original filing. Kopel v. Kopel, 42 Fla. L. Weekly S26, 

S29 (Fla. Jan. 26, 2017). 

Although Kopel raises a question as to whether a newly asserted loss of 

consortium claim is deemed to arise out of the same conduct, transaction, 

or occurrence as the personal injury claim from which it derives, we do not 

believe that Kopel mandates the conclusion that a spouse’s untimely loss 

of consortium claim relates back to the date of the other spouse’s timely 

filed personal injury suit. Indeed, the Kopel court expressly provided that 

it was not “passing judgment as to the correctness” of the ultimate 

conclusions reached in West Volusia Hospital Authority or Daniels, but was 

instead holding that it is possible for a new claim to relate back. Id. at S27 

n.4. 

Further, in addition to holding that the loss of consortium claims did 

not relate back because they were separate and distinct from the injured 

spouses’ causes of action, the West Volusia Hospital Authority and Daniels

courts also held that the claims did not relate back because they brought 

a new party to the lawsuit. W. Volusia Hosp. Auth., 668 So. 2d at 636; 

Daniels, 385 So. 2d at 663. Kopel did not disturb this conclusion, and 

neither will we. Generally speaking, the relation-back doctrine does not 

apply when an amendment seeks to add an entirely new party to the 

action. See Roback v. Cassaro, 837 So. 2d 1061, 1062 (Fla. 4th DCA 

2003). However, courts have recognized an exception to this rule where 

the new party is sufficiently related to an original party to the extent that 

amendment would not cause any prejudice. Id. at 1063; Russ v. Williams, 

159 So. 3d 408, 410 (Fla. 1st DCA 2015). Married individuals are not

deemed “sufficiently related” by virtue of their marriage alone. Russ, 159 

So. 3d at 411 (affirming that amendment to change defendant in tort suit 

from husband to wife did not relate back because spouses are “separate 

individuals” and “each spouse has his or her own legal rights and 

obligations”). Further, it cannot be said that allowing the untimely 

addition of an injured party’s spouse as a plaintiff does not cause any 

prejudice as it exposes the defendant to additional lability. To that end, 

because a loss of consortium claim belongs to a separate plaintiff, it is our 

view that loss of consortium claims which are otherwise time barred do 
11

not relate back to the date of the injured spouse’s otherwise timely filed 

lawsuit. 

In sum, we conclude that Plaintiff’s loss of consortium claim was a 

separate and free-standing claim belonging to her individually and that 

Plaintiff cannot be considered an Engle class member for purposes of her 

individual claims. Therefore, the filing of Engle had no tolling effect on the

applicable statute of limitations. Because Plaintiff did not file her lawsuit 

until fifteen years after the statute of limitations began to run and her 

claim does not relate back to the timely filed survival claim, Plaintiff’s loss 

of consortium claim was time barred. Accordingly we conclude that the 

court erred in denying PM’s motion for directed verdict on the issue.

On Cross-Appeal

On cross-appeal, Plaintiff takes issue with the court’s instructions on 

her fraud by concealment and conspiracy counts as well as its decision to 

instruct the jury on the legal effects of cigarette warning labels. A trial 

court’s decision to give or refuse to give a proposed jury instruction is 

reviewed for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Jewett, 

106 So. 3d 465, 467 (Fla. 1st DCA 2013). A trial court abuses its discretion 

when it gives an instruction that is “‘reasonably calculated to confuse or 

mislead’” the jury, resulting in a miscarriage of justice. Goldschmidt v. 

Holman, 571 So. 2d 422, 425 (Fla. 1990) (quoting Fla. Power & Light Co. 

v. McCollum, 140 So. 2d 569, 569 (Fla. 1962)). Further, “[a] trial court 

abuses its discretion when it fails to give a proposed instruction that is (1) 

an accurate statement of the law, (2) supported by the facts of the case, 

and (3) necessary for the jury to properly resolve the issues, so long as the 

subject of the proposed instruction is not covered in other instructions 

given to the jury and the failure to instruct is shown to be prejudicial.” 

Jewett, 106 So. 3d at 467. 

a) The Fraud-Based Instructions

Plaintiff argues that the court erred when it instructed the jury on her 

claims for fraud by concealment and conspiracy because it asked the jury 

to find whether Decedent detrimentally relied on a “statement that was 

misleading to Decedent because it concealed or omitted a material fact” 

instead of asking the jury to find whether Decedent relied on PM’s 

“concealment of material information.” Plaintiff maintains that these 

instructions did not accurately reflect the law because fraudulent 

concealment may occur by omission. PM counters that an omission by 

itself cannot serve as the basis for fraudulent concealment absent some 

sort of special relationship giving rise to a fiduciary duty. Alternatively, 
12

PM argues that the instruction given was warranted based on the facts of 

the case. Plaintiff is correct that reliance on a statement is not a 

requirement, however, we hold that the instruction as given was 

nonetheless proper based on the individual facts of the case. 

In R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 766 (Fla. 4th 

DCA 2016), this Court considered the propriety of a jury instruction on a 

smoker’s fraudulent concealment claim and held that it did not pass legal 

muster because it failed to instruct the jury that detrimental reliance was 

necessary. In doing so, we wrote:

“[I]n a post-Engle case, a plaintiff alleging fraudulent 

concealment need only prove that he or she detrimentally 

relied upon the defendant tobacco corporation’s 

misinformation.” [Philip Morris USA, Inc. v. Kayton, 104 So. 3d 

1145, 1150 (Fla. 4th DCA 2013}] (emphasis added). 

“Similarly, a plaintiff claiming conspiracy to commit 

fraudulent concealment in an Engle progeny case need only 

prove that he or she detrimentally relied upon deceptive 

statements made by a member of the conspiracy.” Id.

(emphasis added). The instruction need not include reliance 

on “a statement” unless the facts of the case warrant it. What 

is necessary is that an instruction properly tailored to the 

facts of the case apprise the jury of the essential element of 

“reliance” in a fraudulent concealment claim.

Id. (emphasis added).

The above language establishes that in an Engle case, a fraudulent 

concealment claim need not be limited to reliance on a “statement,” but, 

at the same time, also establishes that an instruction referencing reliance 

on “a statement” is not incorrect as a matter of law. Id. The Second 

District Court has since considered this issue and, after a thorough 

discussion, rejected the notion that an Engle fraudulent concealment 

claim must be limited to reliance on a “statement.” Philip Morris USA, Inc. 

v. Duignan, 42 Fla L. Weekly D2427, D2430−32 (Fla. 2d DCA Nov. 15, 

2017). Instead, in line with Calloway, it concluded that “whether an 

instruction that a jury must find reliance on a ‘statement’ is necessary or 

proper will depend on the nature of the claims presented and the evidence 

at trial.” Id. at D2431.

In the instant case, Plaintiff testified as to specific advertising 

statements which she claimed Decedent detrimentally relied upon in 

formulating his belief that smoking filtered cigarettes was safe. 
13

Accordingly, because there was evidence presented at the trial regarding 

Decedent’s reliance on “statements,” the instruction was not improper. 

b) The Warning Label Instruction

Plaintiff also takes issue with the court’s decision to provide an 

instruction on the effect of cigarette warning labels, arguing that the 

instruction was inapplicable to Plaintiff’s suit as she did not bring a failure 

to warn claim. She further maintains that, especially when combined with 

PM’s counsel’s closing argument, the instruction led the jury to believe 

that PM could not be liable for any fraudulent concealment effectuated 

through advertising. PM counters that there was no error as the 

challenged instruction was an accurate statement of law and was 

necessary to ensure that the jury knew it “could not impose liability based 

on a legally impermissible theory—that [the tobacco companies] should 

have placed additional or different warnings on cigarette packages or in 

advertisements.” Although the propriety of a warning label instruction in 

Engle cases appears to be an issue of first impression, based on the case 

law discussing the preemptive effect (or lack thereof) of cigarette warning 

labels on Engle-type claims, we conclude that the instruction as worded 

did not serve any purpose other than to confuse the jury and was, 

therefore, improper.

The language of the instruction at issue was based on the Federal 

Cigarette Labeling and Advertising Act (“Labeling Act”), which was enacted 

by Congress “in 1965 in response to the Surgeon General’s determination 

that cigarette smoking is harmful to health.” Altria Grp., Inc. v. Good, 555 

U.S. 70, 77 (2008) (footnote omitted). To that end, the Labeling Act 

“required that every package of cigarettes sold in the United States contain 

a conspicuous warning, and it pre-empted state-law positive enactments 

that added to the federally prescribed warning.” Id. (citing 15 U.S.C. § 

1331). “The Labeling Act has since been amended further to require 

cigarette manufacturers to include four more explicit warnings in their 

packaging and advertisements on a rotating basis.” Id. at 78 (footnote 

omitted).

In Engle, the Florida Supreme Court did not expressly address whether 

the class’ state law tort claims were preempted by the Labeling Act. 

However, addressing the propriety of a closing argument, the court wrote 

that “[a]lthough compliance with the federal warnings preempted any 

claim based on failure to warn, it did not eliminate the other causes of 

action that the jury had to consider in Phase I.” Engle, 945 So. 2d at 1273

(emphasis added). Despite this dicta, the tobacco companies have 

continuously argued that Engle plaintiffs’ claims are pre-empted by the 
14

Labeling Act. Recently, the Florida Supreme Court revisited the issue and 

definitively held that Engle plaintiffs’ strict liability and negligence claims 

are not preempted by the Labeling Act. R.J. Reynolds Tobacco Co. v. 

Marotta, 214 So. 3d 590, 605 (Fla. 2017). 

In Marotta, the court reasoned that “the record in Engle reflects that 

the claims were grounded in allegations that Engle defendants deliberately 

manufactured their products to increase the likelihood of addiction, 

despite defendants’ knowledge of the hazards of nicotine, and that Engle 

plaintiffs suffered disease and death as a result of their inability to quit.” 

Id. Based on the foregoing, it concluded that preemption was not a valid 

defense to the afore-outlined claims because “[f]ederal tobacco regulations 

have not explicitly allowed the type of conduct underlying Engle claims, 

namely, the intentional manipulation of nicotine levels.” Id. at 604−05. 

The Marotta court did not address the effect of the Labeling Act on 

fraudulent concealment and conspiracy to commit fraudulent 

concealment causes of action, but this is because the issue has already 

been squarely addressed by the United States Supreme Court. 

In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527 (1992), the Court 

considered whether a smoker’s state law fraudulent misrepresentation 

and conspiracy to misrepresent or conceal material facts claims were 

preempted by the Labeling Act. To the extent that the smoker’s fraudulent 

misrepresentation claim was based on the theory that, “through their 

advertising, [the tobacco companies] neutralized the effect of federally 

mandated warning labels,” the plurality3 held that the claims were

preempted. Id. However, to the extent the claims were predicated on a 

“state-law duty not to not make false statements of material fact or to 

conceal such facts,” the plurality held that the fraudulent 

misrepresentation and conspiracy claims were not preempted by the 

Labeling Act. Id. at 528, 530. As such, Cipollone established that a

smoker’s “claim based on allegedly fraudulent statements made in [the 

tobacco companies’] advertisements is not pre-empted by [the Labeling 

Act].” Id. at 529. 

The Court revisited the issue of preemption and fraud based claims 

against tobacco companies again in Altria. 555 U.S. at 76−87. There, a 

smoker alleged that a tobacco company violated the Maine Unfair Trade 

Practices Act by fraudulently conveying through its advertising that “light” 

cigarettes delivered less tar and nicotine than regular brands despite its

knowledge to the contrary. Id. at 72−73. The tobacco company argued 

 

3 The plurality was comprised of Chief Justice Rehnquist and Justices White, 

O’Conner, and Stevens.
15

that the claim was preempted because it was “more analogous to the 

‘warning neutralization’ claim found to be pre-empted in Cipollone” as it 

was based “on statements that ‘might create a false impression’ rather 

than statements that are ‘inherently false.’” Id. at 81-82. The Court 

outright rejected the tobacco company’s claim, clarifying that the “warning 

neutralization” claim found to be pre-empted by Cipollone was really a 

failure to warn claim mislabeled as a fraudulent misrepresentation claim. 

Id. at 82. It further clarified that “[n]othing in the Labeling Act’s text or 

purpose or in the plurality opinion in Cipollone suggests that whether a 

claim is pre-empted turns in any way on the distinction between 

misleading and inherently false statements.” Id. It then concluded that:

[I]t is clear that our holding in Cipollone that the common-law 

fraud claim was not pre-empted is directly applicable to the 

statutory claim at issue in this case. As was true of the claim 

in Cipollone, respondents’ claim that the deceptive statements 

“light” and “lowered tar and nicotine” induced them to 

purchase petitioners’ product alleges a breach of the duty not 

to deceive. To be sure, the presence of the federally mandated 

warnings may bear on the materiality of petitioners’ allegedly 

fraudulent statements, “but that possibility does not change 

[respondents’] case from one about the statements into one 

about the warnings.” 

Id. at 82−83 (citation and footnote omitted).

Based on the foregoing precedent, it is plain that a warning label 

instruction has no impact on Engle based negligence or strict liability 

claims and, likewise, has no bearing on a smoker’s claims that the tobacco 

companies fraudulently concealed material facts regarding the health 

effects of their cigarettes (both in their advertising and to regulatory 

authorities) and conspired to make these concealments. See Altria, 555 

U.S. at 82−83; Cipollone, 504 U.S. at 529−30; Marotta, 214 So. 3d at 605. 

These were the only theories of liability Plaintiff asserted. 

Despite the fact that Plaintiff did not assert a warning claim and her 

remaining claims were not pre-empted by the Labeling Act, PM insists that 

the instruction was nonetheless necessary to resolve the issues in the 

case. PM points to the following evidence as necessitating the instruction:

1) during Plaintiff’s testimony, the jury asked Plaintiff whether there was 

adequate information about the risks of smoking “with the Surgeon 

General Report, warning labels on cigarette packs, and various public 

service announcements” to which Plaintiff responded that “with all the 

warnings it—it wasn’t enough to overcome all the advertisements about 
16

smoking being safer if you smoked filtered cigarettes,” and 2) one of 

Plaintiff’s experts testified that PM concealed that it knew smokers were 

getting more tar and nicotine from filtered cigarettes. Based on the 

foregoing, PM maintains that “the jury would have been left with the 

impression that it could impose liability based on a legally impermissible 

theory [that] the Defendants should have placed additional or different 

warnings on cigarette packages or in advertising.” 

PM’s argument is flawed in the same way that the tobacco company’s 

argument in Altria was flawed. 555 U.S. at 82−83. Plaintiff’s evidence 

establishing that the fraudulent concealments and misrepresentations 

contained in advertising induced Decedent to purchase cigarettes despite 

the warnings had nothing to do with the adequacy of the warnings, but 

rather, as explained by the Altria court, went to the materiality of the fraud.

Id. Accordingly, despite PM’s best attempts to argue otherwise, nothing 

about this evidence somehow changed the case from one about the 

fraudulent statements to one about the warnings. 

At any rate, to the extent the instruction had any bearing on the facts 

of the case, the possibility that it confused the jury is exceedingly high, 

especially considering the fact that the jury found for PM on Plaintiff’s 

intentional tort claims. The instruction stated that based on the cigarette 

warning labels, “cigarette advertising after July 1, 1969 cannot be the 

subject of any claim that the advertising undermined or neutralized the 

warnings or made them less effective.” As Plaintiff compellingly argues, 

“most reasonable jurors (and even most lawyers) would misunderstand 

this language to mean that tobacco companies can have no liability for any 

statements in their advertising that are contrary to the mandated health 

warnings.” Indeed, this is exactly how PM’s counsel explained the 

instruction in its closing argument. As discussed above, this is absolutely 

not true—PM could still be liable for fraudulent statements contained in 

its advertising despite the presence of a contrary warning label. 

Our holding should not be interpreted as absolutely foreclosing the use 

of a warning label instruction in an Engle case. As indicated in Altria, the 

presence of warning labels on cigarette packs may go to the materiality of 

the tobacco companies’ misrepresentations, or, put otherwise, to the issue 

of the smoker’s detrimental reliance on the statements. Id. at 83. The 

instruction provided by the court here, however, simply did not explain 

these subtle, but critical, nuances. 

In sum, we conclude that the warning label instruction was improperly 

given in this case. Accordingly, we are compelled to reverse and remand 

for a new trial. As outlined in the direct appeal analysis section, on 
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remand, the court should enter judgment in favor of PM on Plaintiff’s 

individual loss of consortium claim. 

Reversed and remanded with instructions.

CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.