QUINCE, J.
Philip Morris USA, Inc. ("PM USA") and R.J. Reynolds Tobacco Company ("R.J. Reynolds"), seek review of the decision
In December 2007, Ms. Frazier filed a complaint against PM USA and R.J. Reynolds in the Eleventh Judicial Circuit in and for Miami-Dade County, alleging that her smoking of the defendants' cigarettes proximately caused her to develop chronic obstructive pulmonary disease (COPD).
The testimony offered at trial included that Ms. Frazier started smoking in 1945, when she was fourteen or fifteen years old. Ms. Frazier smoked Winston cigarettes but switched to the Carlton brand of cigarettes because it advertised that it had the lowest tar and nicotine in its cigarettes. Ms. Frazier then switched to Parliaments because that brand advertised "the recessed filter" in its cigarettes, which she thought was better for her. In relying on advertising and believing that it was better for her, Ms. Frazier made a final switch to Benson & Hedges Ultra Lights. Ms. Frazier testified that the advertisements were "influential," and that the "tobacco company" did not tell her that it was hazardous, which she relied on. Ms. Frazier stated that the correctness of the warning displayed on the cigarette packages was "controversial" because "there wasn't any definite information."
Ms. Frazier admitted that she was aware that cigarettes were addictive in 1963, and by the mid-1970s, she was aware that smoking could cause lung cancer, COPD, and emphysema. In 1991, Ms. Frazier was informed that she had an asthma attack. In that same year, Ms. Frazier's pulmonologist's impression was that she suffered from tobacco addiction with underlying COPD. In 1992, Ms. Frazier quit smoking. The pulmonologist testified that Ms. Frazier's first "real" documented COPD was in 1993, when Ms. Frazier was told that she had COPD and emphysema. According to her physician,
Ms. Frazier presented the following testimony relating to the conduct on the part of the tobacco companies. In 1953, when the studies first linked cigarettes and cancer, the tobacco companies hired scientists who confirmed that cancer rose dramatically as people smoked more cigarettes. In response to public concerns, the tobacco companies issued "A Frank Statement," wherein claims were made about the safety of cigarette smoking which were reinforced by advertisements and public interviews given by tobacco executives. The companies' publicly made claims were contradicted by their internal research. As early as 1961, the tobacco companies' internal documents reflected the ineffectiveness of filters in removing cancerous components. Tobacco companies knew nicotine was addicting and that smoking causes lung cancer and emphysema.
Ms. Frazier also offered testimony that the head of research at PM USA said in a 1976 interview that the company is "sincere" in its belief that cigarettes are not harmful. The head of the Tobacco Institute testified during a 1978 Congressional subcommittee meeting that smoking is not causing deaths and that science does not know if smoking causes death. A Tobacco Institute spokesperson stated in 1983 that "I don't think that there has been a causal relationship established between cigarette smoking and any other disease." In 1984, R.J. Reynolds took out advertisements in major newspapers and magazines calling for an open debate regarding smoking's danger, which would show that smoking does not cause cancer. A tobacco spokesperson stated in 1984 that "[i]t is not known whether cigarettes cause cancer." After the 1988 Surgeon General's report asserted that nicotine was addicting, the Tobacco Institute released a statement that said "it has not been established that cigarette smoking produces a physical dependence to nicotine." In 1994, tobacco company executives testified under oath before Congress that nicotine was not addictive and that "it has not been proven that cigarette smoking causes cancer." In 1999, the tobacco companies admitted that smoking was harmful.
As to the fraudulent concealment and civil conspiracy of fraudulent concealment claims, the jury was instructed that the
The defendants requested that the trial judge instruct the jury on section 95.031(2), Florida Statutes (1993), the twelve-year statute of repose governing fraud claims. The proposed language read as follows: "In making your determinations regarding Plaintiff's fraudulent concealment and agreement to conceal claims, you may not consider evidence of alleged concealment, statements, or other conduct before [December 14, 1995/May 5, 1982]."
Instead, the following question was submitted to the jury on the verdict form:
The verdict form question concerning the conspiracy claim provided as follows:
The jury found that Ms. Frazier was addicted to cigarettes containing nicotine and that her addiction was a legal cause of her COPD or emphysema. However, the jury determined that prior to May 5, 1990 — which was four years prior to prior to the filing of the Engle class complaint — Ms. Frazier knew or should have known in the exercise of reasonable care that she had been injured and that there was a causal connection between her smoking and her injury. Ms. Frazier's claims were thus barred by the applicable four-year statutes of limitations. As instructed, the jury did not decide the issues of causation, the fraudulent concealment and conspiracy claims, comparative fault, compensatory damages, and the entitlement to punitive damages.
Thereafter, Ms. Frazier moved for a directed verdict on the statutes of limitation defense and for a new trial, contending that the defendants failed to present any evidence that Ms. Frazier was on notice of a causal connection between her smoking and her development of COPD or emphysema on or before May 5, 1990. Her motions were denied, and accordingly, final judgment was entered in favor of the defendants.
Ms. Frazier appealed the trial court's denial of her motions for directed verdict and for a new trial. Frazier, 89 So.3d at 939. Finding no competent record evidence that Ms. Frazier's claims accrued before the statute of limitations bar date, the Third District reversed and remanded for a new trial with instructions that the trial
PM USA and R.J. Reynolds cross-appealed, asserting that Ms. Frazier's fraudulent concealment and conspiracy to conceal claims were barred by section 95.031(2), the fraud statute of repose, and that Ms. Frazier was required to prove that she relied upon a deceptive statement or omission after May 5, 1982. Id. at 947. In addressing this claim, the Third District held that "the last act done in furtherance of the alleged conspiracy fixes the pertinent date for purposes of commencement of the statute of repose, and we conclude that Ms. Frazier introduced evidence of deceptive statements or omissions occurring after May 5, 1982." Id. (citing Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1078 (Fla. 2d DCA 2000)). The district court rejected the defendants' argument that Ms. Frazier was "obligated to show further or continued reliance upon the alleged last act in furtherance of the conspiracy." Id. at 947-48. Therefore, the Third District found no error in the trial court's denial of the instruction on the fraud statute of repose. Id. at 948.
Pursuant to the statute of repose contained in section 95.031(2), fraud claims "must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered." § 95.031(2), Fla. Stat. PM USA and R.J. Reynolds contend that (1) the plain language of the statute requires proof of reliance on an act committed no more than twelve years before the complaint was filed, and (2) the trial court erred in denying their requested jury instruction on the statute. We disagree.
In Engle, 945 So.2d 1246, we concluded that certain Phase I jury findings, including findings pertinent to fraudulent concealment
Hess, 175 So.3d at 698, No. SC12-2153.
In the instant case, unlike in Hess, both fraudulent concealment and conspiracy to commit fraud by concealment claims were submitted to the jury.
We therefore disapprove the decisions of the Fourth District in Naugle and Cohen, which require reliance during the statute of repose period. See Naugle, 103 So.3d at 947 ("Because fraudulent concealment requires proof of reliance, Naugle's claim is barred unless the record demonstrates that she justifiably relied on statements or omissions made after that date [May 5, 1982]."); Cohen, 102 So.3d at 15 ("[A]ppellee's fraudulent concealment claim had to be based on conduct that occurred after May 5, 1982 — she must prove that Nathan relied upon statements or omissions by
In light of the foregoing, we approve the Third District's decision in Frazier to the extent of its conclusion concerning the statute of repose and disapprove Naugle and Cohen.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur.