ORDER

ROY B. DALTON, Jr., District Judge.

This cause is before the Court on Plaintiff's Renewed Motion for Judgment as a Matter of Law and Motion for New Trial ("Motion") (Doc. 214), and Defendants' Opposition to Plaintiff's Renewed Motion for Judgment as a Matter of Law and Motion for New Trial (Doc. 221). The Court has reviewed the written submissions of the parties, the relevant portions of the record, and applicable law. For the reasons stated below, Plaintiff's Motion is due to be denied.1

PROCEDURAL BACKGROUND

Plaintiff Anita Young McCray, as personal representative of the Estate of Mercedia Walker Wilbert, ("Plaintiff") brought this Engle progeny wrongful death lawsuit against R.J. Reynolds Tobacco Company and Philip Morris USA Inc. ("Defendants") on behalf of her mother, Mercedia Walker Wilbert, her estate, and her survivors. Plaintiff claimed that as a result of Mrs. Wilbert's addiction to cigarettes manufactured by Defendants, she developed lung cancer and died. (See Joint Pretrial Statement, Doc. 104 at 2.) The case proceeded to trial on March 6, 2012 and lasted seven days. Nine witnesses testified, including two experts. The jury returned a verdict in favor of Defendants based on their finding that Mrs. Wilbert's addiction to cigarettes containing nicotine was not the legal cause of her death, and thus she was not a member of the Engle class. (Doc. 189.) Plaintiff now renews her Federal Rule of Civil Procedure ("Rule") 50 motion for judgment as a matter or law, or in the alternative requests a new trial pursuant to Rule 59. (Doc. 214 at 1.)

APPLICABLE STANDARDS

Under Rule 50, the Court may grant judgment as a matter of law "`after the jury has returned its verdict if there is no legally sufficient evidentiary basis for a reasonable jury to find' for the non-moving party." Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 (11th Cir. 2007) (emphasis added) (quoting Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)); Fed. R. Civ. P. 50. Stated another way, "[c]ourts should grant judgment as a matter of law only `if the evidence is so overwhelmingly in favor of the moving party that a reasonable jury could not arrive at a contrary verdict.'" Ziolkowski v. Landmark Am. Ins. Co., No. 8:09-CV-776, 2012 WL 503900, at * 2 (M.D. Fla. Feb. 15, 2012) (quoting Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001)). When reviewing a Rule 50(b) motion, the Court must look at the evidence in the record and draw all inferences in favor of the non-moving party. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir. 2004). "`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Id. at 1193 (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The jury's findings are not relevant to the Court's analysis of a renewed Rule 50(b) motion. Chaney, 483 F.3d at 1186.

A party may join a renewed motion for judgment as a matter of law, in the alternative, with a motion for a new trial under Rule 59. See Fed. R. Civ. P. 50(b). When there are alternative motions for judgment as a matter of law and for new trial, the Court should rule on the motion for judgment as a matter of law first. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253 (1940). Pursuant to Rule 59(a), the Court may "grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). The Court may grant a motion for a new trial if the jury's verdict was contrary to the great, not merely the greater, weight of the evidence. Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982). The trial judge should independently weigh the evidence, and must view the evidence favoring the jury verdict, as well as the evidence favoring the moving party. Id. (citing Rabun v. Kimberly Clark Corp., 678 F.2d 1053, 1060 (11th Cir. 1982)). However, the "trial judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Id. at 973 n.7 (A trial court "should not set the verdict aside as against the weight of the evidence merely because, if he had acted as trier of the fact, he would have reached a different result; and in that sense he does not act as a 13th juror in approving or disapproving the verdict." (quoting 10-59 Moore's Federal Practice — Civil § 59.08[5])). The Court also has discretion to grant a motion for a new trial if it finds "that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury." Montgomery Ward & Co., 311 U.S. at 251.

DISCUSSION

1. Judgment as a Matter of Law

Plaintiff argues that the jury's finding that Mrs. Wilbert was addicted to cigarettes containing nicotine, but that such addiction was not the legal cause of her death, is against the great weight of the evidence, and is contrary to Florida law and "plain common sense." (Doc. 214 at 1-2.) Plaintiff contends that because the parties stipulated that smoking was the medical cause of Mrs. Wilbert's lung cancer, and that lung cancer was the cause of her death, the "only disputed issues regarding class membership are: whether Mrs. Wilbert was addicted to cigarettes, and if so, whether her addiction was a substantial factor in her developing lung cancer." (Id. at 2.) At trial, Plaintiff moved for judgement as a matter of law on the question of addiction and legal causation at the conclusion of her case-in-chief.2 The Court denied the motion. At the close of all evidence Plaintiff did not renew her motion for judgment as a matter of law on this issue, and the Court submitted the case to the jury. Plaintiff here renews this argument and requests a new trial on the remaining issues. Alternatively, if the Court denies the Rule 50 motion, Plaintiff requests a new trial under Rule 59. (Id. at 3.)

Defendants contend, and Judge Covington agreed in denying Plaintiff's Rule 50(a) motion, that whether Mrs. Wilbert was addicted and if so, whether such addiction was a legal cause of her death "presented a material question of fact that had to be submitted to the jury to resolve." (Doc. 221 at 2-3.) This Court agrees.

To prove Engle class membership, a plaintiff must prove (1) the smoker was addicted to the defendant's cigarettes containing nicotine, and if so (2) that such addiction was a legal cause of death. R.J. Reynolds Tobacco Co. v. Jimmie Lee Brown, 70 So.2d 707, 711, 715 (Fla. 4th DCA 2011). Florida intermediate appellate courts have approved, and required, that the jury be instructed on legal cause as it relates to addiction ("addiction-causation"). See id. at 711-12, 716-17; R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1065 (Fla. 1st DCA 2011); Philip Morris v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012); Frazier v. Philip Morris USA Inc., No. 3D11-580, 2012 WL 1192076, at *6 (Fla. 3d DCA Apr. 11, 2012); Philip Morris v. Hess, No. 4D09-2666, 2012 WL 1520844, at *1 (Fla. 4th DCA May 2, 2012) (affirming final judgment on a plaintiff's strict liability and negligence claims where, as here, the parties stipulated that the plaintiff's lung cancer was caused by Philip Morris USA's cigarettes containing nicotine, and the plaintiff died of lung cancer, yet the class membership question was submitted to the jury).

The Court finds that the jury had a sufficient evidentiary basis to find for Defendants. Plaintiff makes much of the fact that the testimony of their witnesses was "unimpeached" and "uncontroverted." (See Doc. 214 at 4-9.) However, Defendants elicited significant testimony on cross-examination of Plaintiff's witnesses, including her two experts, that provided a basis for the jury to consider and decide whether Mrs. Wilbert was addicted to cigarettes, and if so, whether the addiction was the legal cause of her lung cancer and death. There was evidence from which the jury could infer that it was Mrs. Wilbert's choice to continue to smoke and not quit; that she did not make a real effort to quit until 1993; that she thought her smoking was her own business; that Mrs. Wilbert had the ability to control her smoking in certain situations; that she smoked, at least in part, because it was relaxing, stimulating, and helped relieve stress; and that even addicted smokers have the ability to, and do, quit.

Moreover, Plaintiff's argument that the verdict is contrary to Engle and Florida law is flawed. First, although it can be instructive, the circuit court order in Lorillard Tobacco Co. v. Mrozek, 2007-CA-12952-XXXX-MA, is not binding precedent for this Court. In addition, according to Defendants, the same court decided the issue differently in a later case. (See Doc. 221 at 18-19.) Second, and more significantly, Plaintiff's argument that fault (i.e. choice to smoke, choice/ability not to quit) should not be part of the class membership inquiry brings to mind the saying "you can't have your cake and eat it too." Plaintiff requested a concurring cause instruction as part of the addiction-causation instruction, which the Court gave, over Defendants' objection. Relying on this instruction, Plaintiff argues that the jury did not have to find that Mrs. Wilbert's addiction was the "only" cause, but that it substantially contributed to her lung cancer and death in order to find for Plaintiff on this issue. (See Doc. 214 at 15.) Florida's standard jury instruction on concurring causes states:

Fla. Std. Jury Instr. (Civ.) 401.12(b). The "Note on Use" provides in relevant part:

Notes on Use, Fla. Std. Jury Instr. (Civ.) 401.12. At the charge conference, Defendants objected to the inclusion of the concurring cause instruction in the addiction-causation instruction. Trial Tr. Vol. V, 19:2-20, Mar. 15, 2012. They asserted that the "concurring cause" contemplated in this question is the smoker's own conduct. Id. at 21:18-22:9.3 They argued that the comparative negligence of the plaintiff alone does not require giving a concurring cause instruction. Id. Plaintiff's counsel argued that a concurring cause instruction was appropriate. Id. at 23:19-25. The Court overruled Defendants' objection to the instruction. Trial Tr. Vol. V, 59:23-59:9. So while Defendants opposed the concurring cause instruction, the crux of their argument was that addiction was not the legal cause of death because it was the smoker's choice to smoke and choice not to quit. Conversely, Plaintiff heavily relies on the "contributes substantially" language of the concurring cause instruction, and even suggested to the jury concurring causes that related to Mrs. Wilbert's choices, yet argues here that the responsibility or fault of Mrs. Wilbert is not part of the addiction-causation question. (See Doc. 214 at 17-18.) For example, in closing argument, Plaintiff's counsel suggested a few possible concurring causes:

Trial Tr. Vol VII, 22:22-23:8, Mar. 19, 2012. Under these circumstances, where evidence of choice and ability to quit (such as quit attempts, or lack thereof, ability of addicted smokers to quit, ability to control smoking, and reasons for smoking) are submitted to the jury, and these types of arguments are made to the jury, 1) it was not error to give the concurring cause instruction;4 and 2) evidence regarding choice and ability to quit was a properly considered by the jury when answering the class membership question. Therefore, the Court confirms that there was a "legally sufficient evidentiary basis for a reasonable jury to find" Defendants. See Lipphardt, 267 F.3d at 1186. The undersigned agrees with Judge Covington that the class membership determination was a question for the jury. See Trial Tr. Vol. VI, 186:12-15, Mar. 16, 2012 ("I think [addiction and legal cause are] certainly a fact issue for the jury to decide on both counts.").

2. New Trial

Upon an independent review of the evidence, and for reasons substantially similar to those discussed above, the Court also finds that a new trial is not warranted. The jury verdict was not contrary to the great weight of the evidence. There was plenty of evidence for the jury to find that Mrs. Wilbert's addiction was not the "but for" cause of, or even that it did not "contribute substantially" to, her lung cancer and death.

CONCLUSION

Upon consideration, and after a thorough review of the evidence submitted at trial, the Court concludes there was sufficient evidence to support the jury's verdict. The verdict was not against the great weight of the evidence, and was not contrary to the law. Nor does the verdict result in a miscarriage of justice. The jury was entitled to consider the class membership question, and determine, based on its own sifting of the evidence, that Plaintiff failed to establish that Mrs. Wilbert's addiction to cigarettes was a legal cause of her lung cancer and death.

Accordingly, it is ORDERED:

Plaintiff's Renewed Motion for Judgment as a Matter of Law and Motion for New Trial (Doc. 214) is DENIED. Plaintiff's alternative request for a new trial is also DENIED.

DONE AND ORDERED.