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A woman who blamed R.J. Reynolds Tobacco Co. for her husband's lung cancer death will keep a $3 million jury award after Florida's Fourth District Court of Appeal declined to order a new trial.

Jacqueline Burgess sought compensation on behalf of her husband, Johnny, who died at 59 in 1993.

But her case tested the limits of detrimental reliance, as it raised questions about the extent to which a plaintiff must show that a tobacco company misled a smoker.

It also certified a conflict with the First DCA as the majority panel relied on the type of evidence that its sister court found insufficient.

At issue: whether it's enough for jurors to deduce that a smoker relied to their detriment on claims made by a tobacco company, based on the smoker's history and the defendant's advertising campaigns—or whether direct evidence is needed.

What happened?

Johnny Burgess began smoking unfiltered Pall Mall cigarettes at 14, but eventually switched to Winstons, believing its filters were safer, according to testimony from friends.

The plaintiff also recalled her husband once sliced open a filter to reveal "a lot of brownish-looking stuff," according to the opinion, and remarked, "See all this stuff that's supposed to be going in me is in the filter. The filter is catching it."

Jurors found R.J. Reynolds liable for concealment and conspiracy but awarded no punitive damages. They decided Burgess was 20% at fault.

The defendant contested the award, arguing St. Lucie Circuit Judge Larry Schack shouldn't have denied its request for a directed verdict and its request that jurors find Burgess relied upon a particular statement that concealed information about the dangers of cigarettes.

But the Fourth DCA disagreed.

"Mr. Burgess did not need to prove that he relied on any specific statement from the tobacco industry," the opinion said. "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."

But in R.J. Reynolds v. Prentice, the First DCA held that a trial court should have allowed jury instructions requiring exactly that. Likewise, in R.J. Reynolds v. Whitmire, that court found that in order for jurors in infer that a smoker relied to their detriment on a tobacco company's claims, there must be circumstantial evidence that establishes reliance, "and this cannot be shown through a mere presentation of general evidence of the plaintiff's life and behavior."

Even if personalized evidence was necessary, the majority panel found it was enough that the defendant "aggressively promoted" filters that changed color with smoke exposure, when in fact they did nothing.

But the ruling wasn't unanimous.

Fourth DCA Judge Jeffrey Kuntz said he would have reversed the $3 million award. He pointed to the Florida Supreme Court's 2015 explanation that Engle progeny plaintiffs "must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims" in Hess. v. Philip Morris USA Inc.

"There was no evidence that Mr. Burgess relied on anything said or done by the tobacco companies," Kuntz wrote. "Nor was there testimony that Mr. Burgess ever even saw a misleading statement."

Agreeing that circumstantial evidence can establish reliance, Kuntz stressed that "there must be something to show Mr. Burgess acted differently because of the tobacco companies' actions."

Kuntz reasoned that although Burgess reportedly watched "The Flintstones," during which the defendant often ran advertisements, there was no evidence he actually saw one. Nor was there evidence that Burgess heard directly from R.J. Reynolds that its filters were safer—instead it appears he heard that from friends.

Kuntz also acknowledged that the first Engle progeny case the Fourth DCA considered, R.J. Reynolds v. Brown, involved a defendant granted a directed verdict on similar claims.

"That judge got it right, and so should we," Kuntz wrote.

Fourth DCA Judge Carole Taylor wrote the majority ruling, backed by Judge Cory Ciklin.

David Sales and Daniel Hoffman of David J. Sales in Sarasota, Randy Rosenblum of Dolan Dobrinsky Rosenblum in Miami, and Gary Paige and Cassandra Lombard of Gordon & Partners in Davie represent the plaintiff. The defense attorneys are Marie Boralnd and Troy Fuhrman of Hill Ward Henderson in Tampa, and Jason Burnette and Charles Morse of Jones Day's Atlanta and New York offices. They did not immediately respond to requests for comment.

 

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