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Florida First DCA rules in Engle-progeny tobacco case that trial court erred in refusing to give jury instruction requested by defense on conspiracy to commit fraudulent concealment count, requiring retrial of all counts because they were “inextricably intertwined”

On October 24, 2019, in R.J. Reynolds Tobacco Company v. Prentice, No. 1D17-2104, the Florida First DCA reversed a jury verdict in favor of the plaintiff in an Engle-progeny tobacco case and remanded the case for retrial on all counts due to an error by the trial court in refusing to give a jury instruction requested by defense on a count alleging conspiracy to commit fraudulent concealment. RJR argued that for the decedent smoker’s estate to prove its conspiracy claim, it would need to show that the decedent relied to his detriment on a specific statement that concealed or omitted material information about the health risks of smoking, and requested a jury instruction to that effect. The court refused to give the instruction requested by defense counsel and instead gave an instruction on the reliance issue which the First DCA interpreted as erroneously not requiring a determination that the decedent relied on a specific statement. The First DCA concluded that this required reversal and remand of the entire case, not just the conspiracy to conceal count, because the issues in all of the counts were “inextricably intertwined,” citing precedents in which this rationale was used as basis for remanding issues as to both liability and damages and liability and comparative fault. In dissent, Judge Makar pointed out that the same reliance issue had previously been rejected by the First DCA in R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st DCA 2010), which as a district precedent was binding notwithstanding a recent contrary panel decision in R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536, 540 (Fla. 1st DCA 2018). In addition, Judge Makar noted that RJR had not even asked the First DCA for a new trial on the non-conspiracy counts and cited no caselaw supporting the proposition that a retrial was required on the negligence and strict liability counts for the claimed conspiracy instruction omission, and none exist.

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