ORDER

CARR, District Judge.1

This is an "Engle-progeny"2 suit by Plaintiff Judith Berger (Mrs. Berger), a former smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA, Inc. (PMUSA). Following trial, the jury returned a compensatory damages verdict of $6.25 million (with a 40% comparative fault finding) and an award of $20,000,760.14 in punitive damages based upon Mrs. Berger's fraud and conspiracy claims. (Doc. 92).

Pending is PMUSA's Renewed Motion for Judgment as a Matter of Law on Plaintiffs Fraudulent Concealment and Conspiracy Claims or, in the Alternative, Motion for New Trial and Incorporated Memorandum of Law (Doc. 136), to which Mrs. Berger responded (Doc. 147) and PMUSA replied. (Doc. 149). PMUSA additionally filed supplemental authority in support of its motion (Doc. 153), and also requested leave to submit supplemental briefing. (Doc. 154).

For the reasons that follow, I grant PMUSA's motion (Doc. 136) and enter judgment as a matter of law in favor of PMUSA and against Mrs. Berger as to Mrs. Berger's fraudulent concealment and conspiracy to fraudulently conceal claims.

I. Background

Mrs. Berger began smoking in the late 1950s around age thirteen or fourteen. She started because school friends encouraged her to do so, and' she "didn't want to be the only one not to do it."3 Her twin sister also began to smoke at about the same time. When asked whether peer pressure was the only reason Mrs. Berger started smoking, Mrs. Berger replied: "Yeah. I would say yes." According to Mrs. Berger, it was her friend, Anita Russo, who gave her the first cigarette. Russo, on seeing that Mrs. Berger was not inhaling, as everyone else was, convinced her to start inhaling as she smoked. Mrs. Berger recalled:

Mrs. Berger was smoking daily by age sixteen, and by the time she turned twenty, she was smoking a pack and a half per day.

Beginning when and as she did, as a young and impressionable teenager induced by friends, the evidence at trial showed Mrs. Berger to be entirely typical of those whom tobacco companies deliberately targeted as prospective customers. Tobacco companies knew they needed to gain new customers when they were young, as those who were non-smokers by their twenties would, in all likelihood, never become their customers. Tobacco companies consequently deliberately targeted persons of school and college age to begin smoking, knowing that, as a result of the addictive powers of their product, and the oft irresistible influence of peer pressure on pupils and students, they would acquire new, life-long consumers of their products.4

Though Mrs. Berger tried to stop a couple of times during her lifetime, she was unsuccessful until her twin sister became fatally ill from congestive obstructive pulmonary disease (COPD). Nursing her sister, from whom Mrs. Berger had only been separated for any period of time during her honeymoon, while her sister suffered the agonies of dying from the condition brought an end to Mrs. Berger's smoking in 1988. By then, Mrs. Berger had smoked cigarettes for just short of forty years, having smoked Marlboros and Parliaments for twenty-five of those years.

By the '90s, however, Mrs. Berger experienced the symptoms of COPD. Her condition has taken the predictable course. At trial, she was wheelchair bound and tethered to an oxygen tank. Her life expectancy was estimated at trial to be three to five years.

At issue now is the sufficiency of the evidence to sustain Mrs. Berger's fraudulent concealment and conspiracy to fraudulently conceal claims; specifically, whether sufficient evidence exists as to Mrs. Berger's detrimental reliance on the fraudulent conduct in which PMUSA and its tobacco company cohorts jointly engaged for decades before finally acknowledging that nicotine is addictive and that smoking causes various diseases, including COPD.

In summary, the evidence at trial persuasively showed that that fraudulent conduct involved, inter alia:

In light of the foregoing, there was ample evidence that the tobacco companies engaged in a massive, multi-faceted, protracted, and effective disinformation campaign. Mrs. Berger's counsel aptly demonstrated the effect of that campaign in his closing argument, to wit: "[W]hat we've got here and what Philip Morris and this industry is doing is worse because there's the truck driver, foot on the gas, about to go, looks out the window at the guy about to cross the street and goes, come on, come on; that's the conduct we have."

Proof of the foregoing fraudulent conduct and its likely impact on the tobacco companies' targets, as extensive as it was, is not, however, enough, standing alone, to uphold the jury's finding in this or any other Engle-progeny case. Mrs. Berger had to prove that she relied on what the tobacco companies were saying and doing, by both affirmation and concealment, as she began and/or continued to smoke.

Mrs. Berger's testimony clearly indicates that she was not insulated from or oblivious to the tobacco companies' disinformation. Her testimony shows that she was cognizant of representations made and messages broadcast by PMUSA and other tobacco companies. For example:

Like many other smokers whom the disinformation campaign targeted, Mrs. Berger decided to switch, at her sister's suggestion, from unfiltered Marlboros to a filtered brand, Parliament Lights (another PMUSA product). When asked why she did so, Mrs. Berger testified that she thought the filtered cigarette tasted better. She also enjoyed the recessed filter feature, which she recalled seeing advertised.

Mrs. Berger further explained that she switched to filtered cigarettes to keep loose pieces of tobacco out of her mouth. She did not like the taste of tobacco and having to spit out pieces. She also testified that she preferred the feel of the filter tip cigarette in her mouth. She had found smoking unfiltered cigarettes to be "kind of unpleasant."

When asked whether any other reason existed behind her switching to filtered cigarettes, she answered: "No reason ... just didn't like the unfiltered ones."

Mrs. Berger was also asked what caused her to prefer the "light" brand. Her answers to that line of questions are crucial: Q. You told us on direct examination today in your testimony that there was some point you switched to light cigarettes; is that correct?

Mrs. Berger acknowledged that she had enjoyed the taste of cigarettes, enjoyed smoking with a cup of coffee, and enjoyed the social aspect of smoking. During the occasional periods when she tried to quit, she would feel outcast because all her friends smoked. When asked whether she thought cigarettes helped her relax, she responded "I guess I did."

Mrs. Berger gave no testimony that suggested that the false and fraudulent disinformation campaign, as manifest in the saturation advertising, influenced her decision to switch from an unfiltered brand or to try to stop smoking:

She testified that the only influence from advertising on her decision to switch to Parliament Lights was the assertion that they were less harsh.

With regard to the disinformation, as reported in the media, Mrs. Berger testified that she never saw or heard a tobacco representative discuss or dispute the health risks of smoking in the 1950s, '60s, '70s, '80s or '90s. She testified to having been unfamiliar with the industry's false efforts to put a respectable front on its disinformation campaign via such false flag entities as the Tobacco Industry Research Committee, the Council for Tobacco Research, and the Tobacco Institute. She acknowledged that she never directly communicated with a tobacco representative. Nor had she ever read anything in the newspapers reporting cigarette smoking was not hazardous to health.

The only concerns about the health risks of smoking she recalled were her mother's mention that she had read in a newspaper that the Surgeon General intended to place warnings on cigarette packages. Mrs. Berger's response to those warnings at the time, as already noted, was that she thought they were speculative.

When Mrs. Berger completed her case, PMUSA timely moved under Fed.R.Civ.P. 50(a) for judgment as a matter of law as to Mrs. Berger's fraud and conspiracy claims. (Doc 86). I denied the motion, without prejudice to PMUSA's right to renew. (Doc. 130). The jury subsequently returned the verdict noted above and I entered judgment accordingly. (Doc. 131). Thereafter PMUSA timely renewed its motion, which I now grant.

II. Standard

The standard for granting a renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) is the same as the standard for granting the pre-submission motion under Rule 50(a). Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 (11th Cir.2007) (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2537 (2d ed.1995)). Under that standard, "a district court's proper analysis is squarely and narrowly focused on the sufficiency of evidence." Id. A court "should render judgment as a matter of law when there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir.2004). "The issue is not whether the evidence was sufficient for [the losing party] to have won, but whether the evidence was sufficient for it to have lost." Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1265 (11th Cir.2008).

While I review all evidence of record, I am to draw all reasonable inferences in favor of the nonmoving party. I "must disregard all evidence favorable to the moving party that the jury is not required to believe ... [giving] credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation and quotations omitted).

Moreover, I may not make credibility determinations or weigh the evidence. Id. at 150, 120 S.Ct. 2097; Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1560 (11th Cir.1995). "The line of demarcation which [I am] required to walk is ephemeral: [I] must conclude that an inference is unreasonable without falling into the trap of weighing all the evidence." Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841, 851 (5th Cir.1967); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982). "The standard for determining whether an inference is allowable is generally whether it is a reasonable one, that is, whether it is one that `reasonable and fair-minded men in the exercise of impartial judgment' might draw from the evidence." Daniels, supra, 692 F.2d at 1326 (citation omitted). Ultimately, I am to leave the jury's verdict intact "if there is evidence from which [the jury] ... reasonably could have resolved the matter the way it did." Rodriguez, 518 F.3d at 1264.

III. Discussion

A. Standard for Determining the Adequacy of the Evidence as to Plaintiff's Reliance on Defendant's Fraudulent Conduct

The dispositive issue before me is whether Mrs. Berger produced sufficient evidence to sustain the jury's finding that she relied on the tobacco companies' conspiratorially engendered fraudulent misrepresentations and misleading failure to disclose known and material facts about the addictive nature and health hazards of smoking.

Florida law is clear that an Engle-progeny claimant must establish detrimental reliance to prevail on fraudulent concealment and conspiracy to fraudulently conceal claims. E.g., Hess v. Philip Morris USA, Inc., 175 So.3d 687, 698, 2015 WL 1472319, *8 (Fla.2015) (subject to revision or withdrawal) ("Engle-progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims."); Philip Morris USA, Inc. v. Russo, 175 So.3d 681, 685-86, 2015 WL 1472282, *4 (Fla.2015) (subject to revision or withdrawal); Philip Morris USA, Inc. v. Douglas (Douglas), 110 So.3d 419, 428 (Fla.2013) cert. denied, ___ U.S. ___, 134 S.Ct. 332, 187 L.Ed.2d 158 (2013) (referring to Engle III's reference to individual questions of reliance and legal cause); Engle III, 945 So.2d at 1263, 1276-77 ("In Phase I, the jury decided issues related to Tobacco's conduct but did not consider whether any class members relied on Tobacco's misrepresentations or were injured by Tobacco's conduct."); Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 947 (Fla.App.2012). Accordingly, I instructed the jury that, to prevail on her fraudulent concealment claim, Mrs. Berger had to prove "[s]he relied to her detriment on the incomplete representations the defendant in fact was making about the health effects and/or addictive nature of smoking cigarettes ... [and] her reliance on the incomplete representations ... was a legal cause of her COPD."5 (Doc. 94).

In support of her contention that her proof sufficed, Mrs. Berger relies on the First District Court of Appeal's 2010 decision, R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla.App.2010). In Martin, the court upheld a progeny-plaintiff's fraudulent concealment claim without any "direct evidence showing [plaintiff] relied on information put out by the tobacco companies omitting scientific findings on the harmful effects of smoking." Id. at 1069-70. The court reasoned that the record contained abundant evidence from which the jury could infer plaintiffs reliance on pervasive advertising campaigns and on the "false controversy" created by tobacco during the years in question. Id.; accord R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 333 (Fla.App.2012).

Other Districts have incorporated the reasoning in Martin into subsequent decisions. In Philip Morris USA, Inc. v. Hallgren, 124 So.3d 350, 353 (Fla.App. 2013), the Second District Court of Appeals, in addition to finding sufficient direct evidence of reliance, upheld a verdict on the basis of "the inference of reliance" permitted by Martin. The Fourth District Court of Appeal cited Martin with approval in Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 947 (Fla.App.2012), for a similar purpose. Indeed, one District Judge in a federal Engle-progeny case referred to Martin as "good law." Searcy v. R.J. Reynolds Tobacco Co., 2013 WL 4928230, *4 (M.D.Fla.).

Unfortunately for Mrs. Berger, the decision in Martin does not control my review under Fed.R.Civ.P. 50(b). This is so because, even when sitting in diversity, I am to apply the federal sufficiency of evidence standard. As the predecessor Fifth Circuit stated in King v. Ford Motor Co., "[i]n diversity cases in this circuit, a district court applies the federal, rather than the state, standard for determining whether a party's evidence is sufficient." 597 F.2d 436, 439 (5th Cir.1979). The Eleventh Circuit has not deviated from this precedent. See Daniels, supra, 692 F.2d at 1326 (discussing the modern approach of applying a federal standard to the sufficiency of evidence in diversity cases); see also Jones v. Miles Labs., Inc., 887 F.2d 1576, 1578 (11th Cir.1989)(negligence action; Georgia law); Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989) (fraud; Alabama law); Fed. Kemper Life Assur. Co. v. First Nat. Bank of Birmingham, 712 F.2d 459, 464 (11th Cir.1983) (issue relating to increased risk of loss; Alabama law); Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) rev'd on other grounds Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997) (en bane). PMUSA correctly asserts that the application of Martin in this manner, at its core, would constitute improper importation of a procedural rule concerning the sufficiency of evidence.6 See Daniels, supra, 692 F.2d at 1323; Prickett v. United States, 111 F.Supp.2d 1191, 1196-97 n. 3 (M.D.Ala.2000), aff'd, 268 F.3d 1066 (11th Cir.2001) ("Alabama's rule against pyramiding inferences concerns the sufficiency of the evidence, is procedural and not substantive, and, therefore, is supplanted by federal law.") (citations omitted)).

Furthermore, even if Martin applied as Mrs. Berger contends,7 it may conflict with the doctrines controlling Engle-progeny trials. As the Florida Supreme Court held in Engle III, and then confirmed in Douglas, courts must try matters individual to each claimant individually. Douglas, supra, 110 So.3d at 428, 430 ("[In Engle III] this Court `unanimously agree[d] that the nonspecific findings in favor of the plaintiffs on ... fraud and misrepresentation... are inadequate to allow a subsequent jury to consider individual questions of reliance and legal cause.'"); Engle III, 945 So.2d at 1254-55, 1263, 1270-71 (approving the Engle trial plan while discussing the importance of individualized determinations of issues, such as reliance and legal cause, not commonly shared by class members).

This principle of individualized adjudication is the foundation on which Engle-progeny trials stand. It is a structure the Douglas court recognized to be not only the most accurate expression of Engle III, but also as one that provided necessary procedural safeguards against the arbitrary deprivation of property — namely, the Engle defendants' ability to defend the remaining elements of each progeny-plaintiffs prima facie case. See Douglas, supra, 110 So.3d at 428, 435-36 (discussing Engle III's intention for specific causation to be determined individually while rejecting due process challenges); see also Harris v. R.J. Reynolds Tobacco Co., 2014 WL 7339211, *4 (M.D.Fla.). To allow a finding of detrimental reliance to necessarily follow from nothing more than generic evidence of PMUSA's general conduct would be to deny the very essence of Engle III and Douglas.8

In light of Engle III and Douglas, it appears likely that, if given the opportunity, the Florida Supreme Court would elect not to follow Martin to the extent proposed by Mrs. Berger. Though the crystal ball is always cloudy when a federal court seeks to discern the future course that state jurisprudence will take through a dimly charted realm, I am persuaded that that Court would opt for requiring some proof of individualized reliance on the tobacco companies' fraudulent misconduct. Cf. Baker v. R.J. Reynolds Tobacco Co., 158 So.3d 732, 738-39 (Fla. App.2015) (discussing the Martin decision, while noting that whether Engle-progeny plaintiffs were required to prove more than mere class membership and damages was an unsettled area of law prior to Douglas); R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 714 (Fla.App.2011) ("From a jurisprudence standpoint, the issue of how to apply the Engle findings is in its infancy."). That being so, I may, and properly should disregard an opinion of a an intermediate state court if persuaded, as I am here, that the state's highest court would reach a different result. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir.2011) (discussing a federal court's power to disregard intermediate appellate court decisions if persuasive evidence demonstrates that the state's highest court would conclude otherwise); Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir.2009) (citing King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 157-158, 68 S.Ct. 488, 92 L.Ed. 608 (1948)) (same)).

In any event, I conclude that Martin does not properly state the appropriate standard as to the proof of Mrs. Berger's alleged detrimental reliance.

The evidence at trial amply confirmed the tobacco companies' decades-long fraudulent conduct — fraudulent conduct in which PMUSA was actively and deeply complicit. But that evidence alone, without an additional link to Mrs. Berger's individual detrimental reliance, is not enough to sustain her fraud and conspiracy claims. The jury cannot sanction PMUSA simply because of the wrongfulness of its conduct, no matter how frightfully inhumane, vile, and unconscionable — Mrs. Berger must prove that she has cause to recover because PMUSA's conduct helped lure her to begin and/or continue smoking despite the jeopardy into which she placed herself.9 That is the meaning and mandate of Engle III and Douglas.

B. The Plaintiff's Evidence Failed to Establish Detrimental Reliance on the Fraudulent Conduct

While the evidence of PMUSA's fraudulent misconduct was extensive, evidence as to whether that fraudulent conduct had any impact on Mrs. Berger was not.10 Only one of Mrs. Berger's several expert witnesses, Dr. Neil Grunberg, an expert on addiction and past tobacco company conduct, testified with any degree of focus on the history of Mrs. Berger's smoking behavior. In forming his opinions, Dr. Grunberg testified to having reviewed Mrs. Berger's files and her husband's depositions, as well as to having spoken with her personally. His testimony fell into one of two categories: 1) generic testimony that, at most, relates to Mrs. Berger by inference of association, and 2) his specific testimony directly relating to Mrs. Berger.

Dr. Grunberg's more generic testimony covered a broad range of topics. He testified about tobacco companies' decades-long withholding of scientifically valid evidence regarding nicotine addiction and cigarette structure, the potentially positive impact that evidence would have had if the companies had shared their knowledge with scientists, the government, and the public, as well as the consequent delay in development of remedies for nicotine addiction.

Moreover, Dr. Grunberg testified about the social and psychological reasons individuals begin smoking, typically before and sometimes well before they are twenty years old, as well as the blend of biological and psychological reasons that cause individuals to continue to smoke, the effect PMUSA and other companies' actions had on people similar to Mrs. Berger, and the addiction treatments available during Mrs. Berger's lifetime, including those treatments that would have been available but for the withheld research.

With regard to the second category of Dr. Grunberg's testimony, much of which I admitted under Fed.R.Evid. 703 solely for evaluating the reliability of his principal conclusion, Dr. Grunberg testified that Mrs. Berger was heavily biologically addicted to nicotine and described how nicotine inhibited and impaired Mrs. Berger's "free choice" and ability to control her craving for nicotine. Dr. Grunberg based his opinions, in part, on Mrs. Berger having attributed her decision to smoke to peer pressure and the easy availability of cigarettes. He further noted Mrs. Berger's testimony about enjoying the taste of a cigarette, the relaxing effect smoking cigarettes had on her, and the pleasure of having cigarettes while drinking at a bar and when drinking coffee.

Dr. Grunberg also based his testimony, in part, on Mrs. Berger's assertions that she never chose a cigarette brand based on an advertisement, had neither seen a cigarette advertisement before she started smoking nor paid any attention thereafter to cigarette advertising, and that she opted for filter tip cigarettes because she did not like tobacco getting in her mouth. He also acknowledged that she had not chosen to smoke light cigarettes due to any concerns about the effect of smoking on her health; rather, she preferred their flavor and taste. He further recognized that from the 1950s through the 1990s she had never read, seen, or heard anything about the industry's faux "research" entities or company representatives disputing or seeking to negate concerns about smoking-related or caused health risks. The same was true with regard to the companies' "Frank Statement" to cigarette smokers. He additionally noted Mrs. Berger's statement that she had not taken warning labels on cigarettes seriously.

Because most of Dr. Grunberg's `specific' testimony on this matter is not admissible without limitation and thus cannot properly give rise to inferences of reliance, Mrs. Berger's claim of reliance rises or falls on her own testimony. While the evidence of record, especially the evidence regarding the saturation of cigarette advertising, may raise an inference that Mrs. Berger was cognizant of and subliminally affected by the companies' massive disinformation campaign, only Mrs. Berger, of all the witnesses, possessed personal, intimate knowledge of the extent to which, if any, she detrimentally relied on any portion of that disinformation. The evidentiary insufficiency brought to light by that testimony — testimony which was remarkably candid and forthright — requires vacation of her subject claims.

I have undertaken above to comprehensively recount Mrs. Berger's testimony with regard to why she began smoking (and inhaling) and how and why, according to her, she continued to smoke until finally stopping upon her sister's death. The only indication that the companies' pervasive efforts to allay the fears the Surgeon General had engendered came in her response to what she thought of the warnings on cigarette packages beginning in 1966. In response, she stated, "I thought they weren't sure at the time ... they were speculating." Many of her friends shared the same impression with her. "At that date and time, I don't think anybody [took the warnings seriously]," she testified, further noting that "[t]hey were working on it, but it wasn't a sure thing yet."

Moreover, when directly asked whether she knew smoking cigarettes was hazardous to her health in 1966, she responded: "[not] with 100 percent, no." Mrs. Berger also confirmed previous testimony that "[she] kind of figured [smoking was hazardous to her health] ... kind of knew," adding further: "I wanted to believe what the Surgeon General would say, but I didn't take it seriously enough. I knew a lot of people that smoked and they were in their 90s."

While Mrs. Berger's recollections show that she, like most people in that era, was aware of the disinformation tobacco companies were pervasively and successfully spreading, awareness of the fraudulently made statements is not enough. There must be a link, a nexus between awareness of the lies and acting on those lies. The evidence in this case did not create that link, much less do so with sufficient strength to overcome Mrs. Berger's own testimony directly disclaiming any such link.

Advertising did not influence her decision to smoke and then inhale: peer pressure did.

After the Surgeon General's 1964 report and cigarette package labeling in 1966, at which point the disinformation campaign went into high gear, Mrs. Berger chose Parliament — which PMUSA's advertising suggested was not harmful, or at least not as much so, as unfiltered cigarettes — but not in response to those falsehoods. She was completely unaware of the work and proclamations of the faux "research" entities and their affiliated spokespersons. Mrs. Berger instead chose that brand on its actual, rather than illusory qualities — the less harsh taste and to avoid getting bits of tobacco in her mouth. When asked whether any other reason existed behind her switching to filtered cigarettes, she answered: "[n]o reason... just didn't like the unfiltered ones." Concerns about health played no role in her decision to change brands. The advertising that surrounded everyone at that time had no effect on her decision to change from unfiltered to filtered cigarettes — personal preference, not the fraudulent conduct, motived her decision.11

In the absence of a Florida case defining "reliance" in this context,12 I look, in view of the fact that Florida adopted sections of the Restatement (2d) of Torts in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), to the definition of "reliance" as expressed in the Restatement (2d)'s description of "reliance."13 According to § 548, Comment a14 (emphasis supplied): "In order to justify recovery, the recipient of a misrepresentation must rely upon the truth of the misrepresentation itself, and his reliance upon its truth must be a substantial factor in inducing him to act or to refrain from action ..." Inducement in this context implies action or inaction following from conscious reasoning.15

Here, there is but little evidence that Mrs. Berger was aware of the false disinformation and even less evidence that she acted or refrained from action due to it. To be sure, Mrs. Berger thought that the question of smoking's addictive effects and risks to health was uncertain and the basis for the Surgeon General's warnings, which she admitted ignoring, was speculative. This testimony fairly gives rise to an inference that the disinformation affected her smoking-related decisions.

Those inferences are, however, insufficient to support the verdict in light of Mrs. Berger's own explicit testimony. Though she was aware of the Surgeon General's warnings and was under the impression that the science relating to health risks appeared in dispute and uncertain, her testimony failed to connect, and even served to disconnect, her ensuing decisions with the companies' false pronouncements about those issues.

Instead, as detailed above, Mrs. Berger expressly attributed her decision to begin smoking to peer pressure alone.16 Furthermore, her decisions to use filtered and `light' cigarettes and to switch from Marlboro to Parliaments were solely a matter of personal preference based on comfort (not having to spit out stray bits of tobacco and a more pleasant feeling in her mouth) and the less harsh taste she found in those cigarette types. Indeed, Mrs. Berger's decision to smoke `light' cigarettes was not attributable to healthfulness, because, to her, "they were all the same." This is strong — indeed, conclusive — evidence that the disinformation campaign played no role in her decisions as they related to the addictive nature and health effects of smoking. Therefore, Mrs. Berger's position would require the jury to draw not only an uneasy string of inferences from her perceptions,17 but a string of inferences in utter discord with uncontradicted testimony offered by Mrs. Berger herself. Her own testimony thus overcomes any inference of reliance that her awareness of the warnings and false `disputes' and `uncertainties' might otherwise raise. As the Fifth Circuit stated in Helene Curtis Indus., Inc. v. Pruitt, "an inference is unreasonable if it is at war with uncontradicted or unimpeached facts."18 See supra, 385 F.2d at 851; Daniels, supra, 692 F.2d at 1326-28; Fenner v. Gen. Motors Corp., 657 F.2d 647, 651 (5th Cir.1981); Shipman, supra, 411 F.2d at 374-75 ("There must be a conflict in substantial evidence to create a jury' question."); see also Reeves, 530 U.S. at 151, 120 S.Ct. 2097 Millie court should give credence to the evidence ... supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."). Accordingly, drawing all reasonable inferences in favor of Mrs. Berger, the evidence offered here simply cannot support a reasonable fair-minded inference of her detrimental reliance on either incomplete representations by PMUSA regarding the health effects and/or addictive nature of smoking cigarettes, or, on statement(s) made or act(s) done in furtherance of a conspiracy to conceal or omit material information from representations regarding the same.19 See Rodriguez, supra, 518 F.3d at 1265 ("The issue is not whether the evidence was sufficient for [the losing party] to have won, but whether the evidence was sufficient for it to have lost."); Cleveland, supra, 369 F.3d at 1192; Daniels, supra, 692 F.2d at 1326; see also (Doc. 94). That being so, there is a failure of proof on the issue of Mrs. Berger's individual reliance.

IV. New Trial

I turn finally to PMUSA's alternative motion for new trial. Federal Rule of Civil Procedure 50(c)(1) expressly requires that I conditionally rule on a motion for new trial when granting a renewed motion for judgment as a matter of law. Upon review of the motion, I conditionally grant PMUSA's motion for new trial on Mrs. Berger's fraudulent concealment and conspiracy to fraudulently conceal claims.

I may grant a motion for a new trial if I find the jury's verdict to be contrary to the great weight of the evidence. E.g., Watts v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 310 (11th Cir.1988); Williams v. City of Valdosta, 689 F.2d 964, 972 (11th Cir.1982). I am permitted to weigh the evidence, "but to grant the motion [I] must find the verdict contrary to the great, not merely the greater, weight of the evidence." Williams, supra, 689 F.2d at 972. In addition to a verdict being contrary to the great weight of the evidence, I have discretion to grant a motion for new trial on the basis of legal error. Id. at 974-75 n. 8; O'Neil v. W.R. Grace & Co., 410 F.2d 908, 913 (5th Cir.1969); accord Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.1960).

As detailed at length above, the great weight of the evidence is contrary to Mrs. Berger's fraudulent concealment and conspiracy verdict. Mrs. Berger's own testimony is uncontradicted, direct evidence that she did not rely to her detriment on incomplete representations regarding the health effects and/or addictive nature of smoking cigarettes. This alone is sufficient support for my conditionally granting a new trial on said claims.

Additionally, while I reserve judgment PMUSA's motion for judgment as a matter of law on all claims (Doc. 135), I take note of the Eleventh Circuit Court of Appeals's intervening decision Graham v. R.J. Reynolds Tobacco Co. (Graham), 782 F.3d 1261 (11th Cir.2015). In Graham, the Eleventh Circuit held that, under preemption doctrine, the mechanics of Engle-progeny negligence and strict-liability claims amount to the functional equivalent of a flat ban on cigarette sales, and, are thus inconsistent with the full purposes and objectives of Congress. Id. at 1280. While the Graham decision "express[es] no opinion as to the validity of other Engle claims, for example, fraudulent concealment or conspiracy to fraudulently conceal," id. 1284 it nevertheless bears on the jury charge in this case.

As in Graham, the jury here was instructed in accordance with the Douglas framework: a finding of Engle-class membership necessarily compelled a finding for Mrs. Berger on her negligence and strict liability claims. Thus, I instructed the jury that it must "apply" the Engle findings in further deliberations, including PMUSA's negligence and strict liability.20 (Doc. 94). In regard to deliberating on claims material to this motion, I reminded and directed the jury to "accept" the Engle findings, including the finding

(Doc. 94).

Assuming Graham remains binding precedent, the lens through which the jury viewed the elements of Mrs. Berger's fraudulent concealment and conspiracy claims was prejudiced by legal error. See Williams, 689 F.2d at 974-75, n. 8; O'Neil, 410 F.2d at 913; see also 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2805. As such, no verdict on the subject claims would have been properly rendered.

V. Conclusion

So ordered.