Products Liability Law Reporter

Philip Morris USA Inc. v. Gentile, 2019 WL 4459004 (Fla. Dist. Ct. App. Sept. 18, 2019).

A Florida appellate court held that Philip Morris’s disclaimers regarding its past representations about the safety of its light and low-tar cigarettes warranted a directed verdict on a plaintiff’s fraud-based claims in a non-Engle tobacco wrongful death suit.

Here, the estate of longtime light cigarette smoker Brenda Gentile sued Philip Morris USA Inc., alleging fraud, concealment, strict liability, and negligence. At the close of the plaintiff’s case, the defendant moved for a directed verdict on all counts. Regarding the fraud claims, the defendant argued that the plaintiff had not proved that it had made a false or misleading statement about its light or low-tar cigarettes during the repose period. The court denied the motion on the basis that there was advertising evidence that created a triable issue for the jury. The jury subsequently awarded the plaintiff $7.1 million in compensatory damages. The verdict form did not specify the amounts attributable to each cause of action, however.

Reversing and remanding for a new trial, the appellate court agreed with the defense that the plaintiff had failed to prove that the defense had made a fraudulent statement or omission about the safety of Philip Morris light or low-tar cigarettes after May 2003. Citing case law, the court found that generally, a party may not recover in fraud for alleged misrepresentations that have been expressly disclaimed or contradicted in a later disclosure. Here, the court found, the defendant posted a statement on its public website in 2000 that there is no safe cigarette. Additionally, in 2002, the defendant provided newspaper inserts detailing the health risks of light cigarettes, including that low-tar cigarettes provide no public benefit. Thus, the court concluded, any of the defendant’s past misrepresentations regarding light cigarettes were expressly disclaimed before the relevant repose period, precluding the plaintiff’s fraud claims.

The court also rejected the plaintiff’s argument that the defendant’s continued use of the words light and ultra-light could constitute a misrepresentation, concluding that the previous disclaimers were adequate regarding the cigarettes.

Consequently, the court remanded with instructions that the trial court enter a directed verdict for the defense on the plaintiff’s fraud-based claims. The court also remanded for a new trial in light of the jury’s failure to specify the amounts attributable to the plaintiff’s non-fraud claims.