42
Fla. L. Weekly D2426cTop of Form

Wrongful
death — Product liability — Tobacco — Engle progeny case — Jury —
Trial court abused its discretion in responding to jury note asking for
transcript of witness’s deposition testimony, which was presented to jury as
the witness’s trial testimony, in a manner that did not inform jury of
availability of readback and discouraged jury from requesting readback — Error
was not shown to be harmless — New trial required — Jury instructions —
Trial court abused its discretion by giving instruction on reliance elements of
claims for fraud by concealment and conspiracy where the instruction
inaccurately told the jury to determine whether decedent generally relied on
defendants to disclose material facts, rather than requiring jury to find that
the material information the tobacco companies concealed or omitted was
important to the decedent’s decision to begin or continue smoking — Error not
harmless — Special jury instruction requiring finding that decedent relied on
“a statement” made by defendants was not required in instant case —
Comparative negligence — Trial court did not err by failing to reduce
compensatory damages award based on jury’s comparative fault allocation —
Conflict certified

PHILIP MORRIS USA, INC.; R.J.
REYNOLDS TOBACCO COMPANY; LORILLARD TOBACCO COMPANY; and LORILLARD, INC.,
Appellants, v. KEVIN DUIGNAN, as personal representative of the Estate of
Douglas Clarence Duignan, deceased, Appellee. 2nd District. Case No. 2D15-5055.
Opinion filed November 15, 2017. Appeal from the Circuit Court for Pinellas
County; Jack Day, Judge. Counsel: Cathy A. Kamm, Terri L. Parker, Daniel F.
Molony, and Razvan Axente of Shook, Hardy & Bacon, L.L.P., Tampa; Geoffrey
J. Michael and Daphne O’Connor of Arnold & Porter LLP, Washington, District
of Columbia; Gregory G. Katsas of Jones Day (withdrew after briefing),
Washington, District of Columbia; and Charles R.A. Morse of Jones Day, New
York, New York, for Appellants. David J. Sales, Daniel R. Hoffman of David J.
Sales, P.A., Jupiter; Gary M. Paige, Robert E. Gordon of Gordon & Doner,
P.A., Davie; James W. Gustafson, Jr. of Searcy Denney Scarola Barnhart &
Shipley, P.A., Tallahassee, for Appellee.

(SALARIO, Judge.) Philip Morris USA,
Inc. (PM) and R.J. Reynolds Tobacco Company (Reynolds) appeal from a final
judgment entered in favor of Kevin Duignan, the personal representative of the
Estate of Douglas Clarence Duignan (the Estate).1 Douglas Duignan smoked cigarettes
made by PM and Reynolds and later died of cancer, which led to the filing of
this Engle2 progeny suit by the Estate. We
reverse and remand for a new trial primarily because in responding to a note
from the jury concerning the testimony of Dennis Duignan, the decedent’s
brother and an important witness for the defense, the trial court gave an answer
improperly calculated to prevent the jury from requesting a readback of that
testimony. With respect to the Estate’s claims for fraud by concealment and
conspiracy to commit fraud by concealment, we further conclude that the trial
court erroneously instructed the jury on the element of detrimental reliance.

The
Trial Of This Engle Progeny Case

Background. For the benefit of the reader unfamiliar with tobacco
litigation in Florida, Engle progeny cases differ from ordinary product
defect or wrongful death cases in that they go to trial with certain factual
matters having been conclusively established as a result of the supreme court’s
decision in Engle v. Liggett Group, 945 So. 2d 1246 (Fla. 2006). Engle
was a class action brought against several tobacco companies — PM and Reynolds
included — on behalf of Florida-resident smokers who developed smoking-related
illnesses caused by addiction to cigarettes containing nicotine. Trial verdicts
established liability, compensatory damages for the class representatives, and
the entitlement to and the amount of punitive damages for the class. The
tobacco companies appealed, and the case reached the Florida Supreme Court. The
supreme court decertified the class and vacated the punitive damages award —
with the result being that individual members of the Engle class must
pursue individual damages actions in order to recover for smoking-related
illnesses. Id. at 1254.

Although it decertified the class,
the supreme court nonetheless held that certain liability findings — so-called
Phase I findings — made by the Engle jury could stand and govern in
individual actions by Engle class members. Id. at 1254-55. The
retained Phase I findings include findings that smoking cigarettes causes
certain diseases (including lung cancer), that nicotine is addictive, that the
tobacco companies placed cigarettes on the market that were defective and
unreasonably dangerous, that the tobacco companies were negligent, and that the
tobacco companies concealed or omitted material information about the health
effects and addictive nature of cigarettes and also conspired with one another
to do so. Id. at 1257 n.4, 1276-77. To take advantage of these findings
in an individual suit, a plaintiff must establish membership in the Engle
class by proving that before November 21, 1996, the plaintiff had developed one
of the illnesses found by the Engle jury to be caused by smoking and
that the plaintiff’s illness was caused by an addiction to cigarettes
containing nicotine. Id. at 1256, 1277. If an individual plaintiff
demonstrates class membership, the retained Phase I findings are taken as
conclusively established for purposes of the individual’s action. Id. at
1277.

This particular Engle progeny
case proceeded to trial on an amended complaint which alleged that before
November 21, 1996, Douglas Duignan developed lung cancer as a result of having
been addicted to cigarettes containing nicotine. It asserted claims for strict
liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment
and sought compensatory and punitive damages. The Estate acknowledged that
Douglas Duignan bore some responsibility for his smoking and asked for an
apportionment of fault and damages on his nonintentional tort claims — i.e.,
the claims for strict liability and negligence.

The trial evidence. The trial court held a two-phase trial. The first phase
was to determine the issues of Engle class membership, comparative
fault, legal causation on the Estate’s fraud and conspiracy claims, and the
Estate’s entitlement — if any — to punitive damages. The Estate presented
evidence that Douglas Duignan began smoking at fourteen and had become a
regular smoker by his midteens. It also presented evidence that he exhibited
behaviors consistent with nicotine addiction, that he made several unsuccessful
attempts to quit smoking, and that he smoked light and filtered cigarettes
because he believed them to be safer alternatives. In 1992, when he was
forty-two years old, doctors discovered a cancerous tumor in Douglas Duignan’s
lung and later found that there was cancer elsewhere in his body. He died
thereafter.

As to the fraud and conspiracy
claims, the Estate put on evidence that PM and Reynolds, together with many
other tobacco companies, conspired over several decades to conceal what they
knew about the addictive properties and health effects of smoking cigarettes.
This included evidence of tobacco company advertising that depicted cigarette
smoking as glamorous and even healthy, the tobacco companies’ creation of a
false controversy in the public debate designed to prolong doubt as to the
addictive properties and health effects of cigarette smoking, the promotion of
the idea that smoking light and filtered cigarettes reduced the risks
associated with smoking, and internal tobacco company documents showing what
the tobacco companies actually knew about nicotine addiction and
smoking-related disease.

PM and Reynolds’ defense, in
contrast, focused substantially on a theory that Douglas Duignan smoked because
he liked smoking rather than because he was addicted to nicotine or because he
was misinformed about the risks. This theory put the following items at issue:
(1) Engle class membership (Douglas Duignan’s affinity for smoking,
rather than his addiction to cigarettes, was the legal cause of his cancer),
(2) legal causation on the fraud and conspiracy claims (he knew the material
health risks of smoking and did not rely on any concealed or omitted facts),
and (3) comparative fault (his decision to keep smoking was his own).

PM and Reynolds put on evidence that
significant information about the adverse consequences of cigarette smoking
generally was known to the public and specifically was known to Douglas Duignan
from the time he began smoking. They also offered the testimony of Dennis
Duignan, who lived in Washington State. Although he did not appear in person at
trial, portions of his deposition testimony were read to the jury as evidence
by the parties, with the trial lawyers playing the parts of questioner and witness.
Dennis Duignan testified that he and his brother referred to cigarettes using
slang terms including “cancer sticks” and “coffin nails.” He further testified
about a conversation with his brother that occurred sometime in the 1970s,
during which Douglas Duignan said that his doctor had told him “that if he
didn’t quit smoking, he’d be dead in five years.” When Dennis Duignan asked his
brother whether he planned to quit, Douglas Duignan replied that he did not
plan to quit because he liked smoking. The Estate questioned both the veracity
of this testimony and the timing of the conversation. Both sides addressed it
in opening statements and closing arguments.

The instructions on fraud and
concealment. At the close of the trial, the
jury was instructed to determine whether Douglas Duignan was a member of the Engle
class and, if he was, that it “must accept [certain] previously determined
matters as true . . . just as if you had determined them yourselves.” A finding
that Douglas Duignan was a member of the Engle class coupled with the
preclusive effect of the retained Phase I findings on strict liability and
negligence resolved the Estate’s claims for strict liability and negligence,
with the exception of the issues of comparative negligence and damages, as to
which the jury was also instructed.

As relevant to the claims for fraud
and conspiracy, the jury was instructed that the retained Phase I findings
conclusively established both that PM and Reynolds each “concealed or omitted
material information” about the adverse effects of smoking and also that they
“entered into an agreement” with other tobacco companies “to conceal or omit
information” regarding those matters. Those findings alone did not resolve the
claims for fraud and conspiracy, however, and the jury was required to
determine legal causation, which centered on the issue of detrimental reliance.

PM and Reynolds requested an
instruction that required the jury to find that Douglas Duignan detrimentally
and reasonably relied on “a statement” by each of them (with respect to the
fraud claim) and by a member of the conspiracy (with respect to the conspiracy
claim) and that such reliance was the cause of his cancer. The trial court
rejected that instruction and gave the jury a different special instruction
concerning the reliance element of the fraud claim:

The issue for your determination on Plaintiff’s claims for
concealment is whether the concealment or omission of material information
regarding the health effects of cigarettes or their addictive nature by [PM and
Reynolds] was a legal cause of Douglas Duignan’s lung cancer because Mr.
Duignan reasonably relied to his detriment that [PM and Reynolds] would not
conceal or omit disclosure of such material information.

(Emphasis added.) The court gave a
similar special instruction with respect to the conspiracy claim:

The next issue for your determination will be whether the
agreement to conceal or omit material information previously described was a
legal cause of Douglas Duignan’s lung cancer because Mr. Duignan reasonably
relied to his detriment that [PM and Reynolds] would not conceal or omit
disclosure of such material information either alone or in conjunction with
others . . . .

(Emphasis added.)

The jury note. During its Phase I deliberations, the jury sent the court
a note about how to locate specific portions of the evidence to review, asking
as follows: “Is there a key for the evidence? We are having trouble finding
things in the evidence boxes. If not, can we have the number for Dennis
Duignan’s deposition?” During a discussion with counsel over a potential
response to this question, the parties and court considered whether and how to
advise the jury about the possibility that the deposition testimony read to the
jury during the trial could be read back to the jury upon request. The trial
court expressed concern that allowing a readback of Dennis Duignan’s testimony
would open a “Pandora’s box” and perhaps give “undue influence” to that
testimony. The trial court proposed to instruct the jury that “[t]estimony is
not generally read back to a jury. There is a possibility under some
circumstances.” PM and Reynolds objected to that instruction and proposed
simply advising the jury that a readback was possible.

The court declined. It brought the
jury in, explained that no transcript was available, and told the jury as
follows:

[T]here’s sort of a magic that happens with the six of you
putting your recollections together, it’s called collective recollection, and
you are urged, in regard to all testimony in the case, to use your collective
recollection.

It is not impossible to read testimony back to a jury, but
it is not generally done. And part of that is to — so that no witness’s
testimony gets a — more focus or attention than anybody’s, gets undue emphasis
that way.

The verdicts and judgment. The jury then returned a verdict that, in essence,
determined that Douglas Duignan was a member of the Engle class and
found in the Estate’s favor on all claims. It awarded $6,000,000 in
compensatory damages and found that the Estate was entitled to punitive
damages. It apportioned fault as follows: 37% to PM, 30% to Reynolds, and 33%
to Douglas Duignan. After the second phase of the trial, the jury awarded
punitive damages of $3.5 million against PM and $2.5 million against Reynolds.

The trial court entered a judgment
against PM and Reynolds finding them jointly and severally liable for the
entire compensatory damage award, irrespective of the jury’s comparative fault
allocation, because the Estate had prevailed on its intentional tort claims and
damages on such claims are not apportioned based on comparative fault. PM and
Reynolds requested that the trial court apply a credit to the punitive damages
award based on a “Guaranteed Sum Stipulation” entered into by the parties in
the original Engle litigation regarding the punitive damage award in
that case. The trial court denied that request, and its judgment included the
punitive damages awards the jury made. PM and Reynolds timely appeal the
judgment.

The
Issues On Appeal

PM and Reynolds raise four issues.3 First, they assert that the trial
court’s response to the jury note concerning Dennis Duignan’s testimony both
improperly discouraged the jury from requesting a readback and, by advising the
jury that a readback would give “undue influence” to the testimony, improperly
commented on the evidence. Second, they argue that the trial court’s
instructions to the jury on the reliance element of the Estate’s fraud-based
claims were erroneous because they failed to require the jury to find that
Douglas Duignan relied on “a statement” by one of the tobacco companies. Third,
they claim that the trial court erred by failing to reduce the compensatory
damages award based on the jury’s comparative fault allocation because Engle
progeny cases are grounded in negligence, not intentional torts, and principles
of comparative fault therefore apply notwithstanding the Estate’s assertion of
claims for fraud by concealment and conspiracy. And fourth, they contend that
they are entitled to a credit against the punitive damage award based on the
Guaranteed Sum Stipulation between the tobacco companies and the Engle
class in the original Engle litigation.

After oral argument in this case,
this court issued an opinion in another case deciding the issues of whether
comparative fault applies when an Engle defendant is found liable for
intentional torts and whether the Guaranteed Sum Stipulation in the original Engle
litigation requires application of a credit to a punitive damages award
adversely to PM and Reynolds. See Philip Morris USA Inc. v. Boatright,
217 So. 3d 166 (Fla. 2d DCA 2017), appeal filed, No. SC17-894 (Fla. May
12, 2017). We therefore find no merit in PM and Reynolds’ third and fourth
issues. As to the third issue concerning comparative fault, we certify
conflict, as we did in Boatright, with R.J. Reynolds Tobacco Co. v.
Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), review granted, No.
SC15-2233, 2016 WL 3127698, *1 (Fla. May 26, 2016), and the line of cases
relying on it.4 We further address PM and Reynolds’
first two issues concerning the readback and the reliance instructions below.

The
Trial Court’s Readback Instruction

We review a trial court’s decision
regarding readbacks of trial testimony for abuse of discretion, State v.
Barrow, 91 So. 3d 826, 835 (Fla. 2012), and we also apply that standard to
review a trial court’s response to a jury question, Cannon v. State, 180
So. 3d 1023, 1036 (Fla. 2015). The trial court’s response in this case — that
although a readback was “not impossible,” it “is not generally done” and that
the jury should rely on its “collective recollection” — was an abuse of
discretion because it was calculated to prevent the jury from asking for a
readback and thereby interfered with the jury’s ability to discharge its duties
as the finder of fact in this case.5

The leading case on readbacks of
trial testimony in Florida is Hazuri v. State, 91 So. 3d 836 (Fla.
2012). In Hazuri, a jury in a criminal trial sent the judge a note
asking to see trial transcripts. The defendant argued that the right response
to the request was to tell the jury that transcripts were not available but
that it could have read back to it whatever testimony it wanted. The trial
court disagreed and told the jury only that transcripts were not available and
that it should rely on its “collective recollection” of the evidence to decide
the case. Id. at 839. The defendant appealed his subsequent conviction,
arguing that the trial court erred when it refused to tell the jury that it
could have parts of the transcript read back. After the Third District
affirmed, Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), the supreme
court accepted jurisdiction.

The supreme court quashed the Third
District’s decision and held that the trial court abused its discretion in
failing to inform the jury of its right to request a readback. 91 So. 3d at
846-47. It began by observing that the jury did not request a readback — it
only requested transcripts — but decided that the trial court was required to
inform the jury of the possibility of a readback nonetheless. Id. at
845. It tethered this holding to the core function of the jury, explaining that
“the role of a jury as a factfinder is of utmost importance” and that “a jury
cannot properly fulfill its constitutionally mandated role if it cannot recall
or is confused about the testimony presented in a case.” Id. Because
“[a] jury is composed of laypersons often unfamiliar with legal terms of art,”
the court explained, “there should be no magic words required for a read-back
request.” Id. “Failing to require further instruction concerning a
read-back after a jury has requested transcripts leaves the jury without the
means to refresh its memory of witness testimony — testimony that could be
critical to the outcome of the verdict.” Id.

The court thus adopted “the
following two rules: (1) a trial court should not use any language that would
mislead a jury into believing read-backs are prohibited, and (2) when a jury
requests trial transcripts, the trial judge should deny the request, but inform
the jury of the possibility of a read-back.” Id. at 846; see also
Barrow, 91 So. 3d at 834 (restating rules announced in Hazuri).
“A trial judge can respond to a request for transcripts in the following
manner: ‘Transcripts are not available, but you can request to have any
testimony read back to you, which may or may not be granted at the court’s
discretion.’ ” Hazuri, 91 So. 3d at 846.

We recognize that Hazuri is a
criminal case, as are the vast majority of published decisions on readbacks in
Florida. We also recognize that readbacks in criminal cases are expressly
regulated by rule 3.410 of the Florida Rules of Criminal Procedure, see Hazuri,
91 So. 3d at 844, to which the civil rules contain no analog. At the time Hazuri
was decided, rule 3.410 contained a one-sentence, discretion-conferring
provision that a trial court “may” read back trial testimony to a jury.6 Fla. R. Crim. P. 3.410 (2012); see
also Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001)
(holding that rule 3.410 confers “wide latitude in the area of the reading of
testimony to the jury”), approved by Hazuri, 91 So. 3d at 847.

Those distinctions do not, however,
mean that Hazuri should not apply in civil cases. Although no rule of
procedure governs readbacks in the civil context, a trial judge in a civil case
must, to carry out his or her responsibility to order and facilitate the jury’s
deliberations, enjoy a similar discretion about readbacks to that given a trial
judge in a criminal case under rule 3.410. See Broward Cty. Sch. Bd.
v. Ruiz, 493 So. 2d 474, 479-80 (Fla. 4th DCA 1986) (noting that no rule of
civil procedure governs readbacks but analogizing to rule 3.410); see also
Fla. Std. Jury Instr. (Civ.) 801.2, note 1 (“In civil cases, the decision to
allow read-back of testimony lies within the sound discretion of the trial
court.”). As such, our analysis of a trial court’s readback decisions in a
civil case starts in the same place as it would in a criminal case: the trial
court’s ability to permit or reject a request for a readback in its discretion
based on the facts and circumstances of the case.

Moreover, in deciding to regulate
what a trial judge should and should not say about the jury’s ability to ask
the trial judge to allow a readback, Hazuri relied on considerations
that are also present in the civil context. In particular, the court emphasized
the jury’s constitutional provenance and its centrality in determining facts
when they are the subject of dispute. Hazuri, 91 So. 3d at 845. Both
considerations are implicated in civil cases as well. See amend. VIII,
U.S. Const.; art. I, § 22, Fla. Const. A jury in a civil case is thus no more
able to “properly fulfill its constitutionally mandated role if it cannot
recall or is confused about the testimony presented,” see Hazuri,
91 So. 3d at 845, than a jury in a criminal case is. Because Hazuri’s rules
concerning the possibility of a readback when transcripts are requested seek to
ameliorate that confusion and permit the jury to perform its core function as a
trier of fact, we see no reason why those rules should not be applied in civil
cases as well.

In this case, the trial court’s
response to the jury note seeking a transcript of Dennis Duignan’s testimony,
at a minimum, violated Hazuri‘s rule that a trial court should not use
language that would mislead a jury into believing that a readback is prohibited.
To be sure, the trial court did not explicitly say that a readback was
prohibited; indeed, it acknowledged that a readback was “not impossible.” But
whether the trial court did or did not say that a readback was prohibited is
not the question Hazuri asks. The question is whether what the trial
court did say “would mislead” a jury into believing that a readback was
prohibited. Hazuri, 91 So. 3d at 846; see also Roper v. State,
608 So. 2d 533, 535 (Fla. 5th DCA 1992) (finding error where “the trial judge’s
response to the jury’s question may well have led the jury to conclude” that a
readback was prohibited), approved by Hazuri, 91 So. 3d at 847.
The focus, then, is on what the likely effect of the trial court’s statements
on a reasonable jury might have been. Here, the answer is that a reasonable
jury would have thought a readback prohibited.

Four facets of the trial court’s
response to the jury note inform that conclusion. First, the trial court
advised the jury that readbacks, although “not impossible,” are “not generally
done.” Second, it told the jury that the reason readbacks are “not generally
done” is to prevent any witness’s testimony from having undue influence by
getting more attention than any other witness’s testimony. Third, the trial court
never told the jury that it had the option to ask for a readback; in other
words, although the trial court said that readbacks are “not impossible,” the
jury was never told that it had the option to make that which was “not
impossible” possible by asking for it. And finally, the court instructed the
jury to rely on its “collective recollection” of all of the testimony in the
case because of the “magic that happens” when a jury does so.

It takes no feat of imagination to
see how this response might lead reasonable lay jurors to think that asking for
a readback would be a fool’s errand. In substance, the trial court communicated
to them that a readback was something extraordinary, that it was extraordinary
because it gave the witness whose testimony was read back undue influence, and
that the jurors instead should rely on their collective recollection of the
testimony. The trial court’s remarks, combined with its silence on the jury’s
right to at least ask for the testimony to be read back, in essence and effect,
informed the jurors “that their only recourse was to rely upon their
‘collective recollections and remembrances’ as to” Dennis Duignan’s testimony
because transcripts were unavailable and a readback would not be forthcoming. See
Roper, 608 So. 2d at 535. That was error. See Avila, 781
So. 2d at 416 (reversing where the trial judge’s response to transcript request
“may have confused the jury as to whether a readback of testimony was
permissible”); Biscardi v. State, 511 So. 2d 575, 581 (Fla. 4th DCA 1987)
(reversing where “the judge’s words may reasonably have conveyed to the jurors
that to ask for . . . rereading of testimony would be futile”), approved by
Hazuri, 91 So. 3d at 847. Based on the trial court’s stated concern
about reading back Dennis Duignan’s testimony, this appears to have been the
result its instruction was calculated to produce.

The Estate argues that a Hazuri-type
analysis is inapplicable in this case because Hazuri deals with a trial
court’s response to a jury’s request to see a transcript of trial
testimony, and the jury here sought only a transcript of Dennis Duignan’s deposition
testimony. That distinction might be material in other cases — we need not
discuss it — but it is not in this one. Here, Dennis Duignan’s deposition testimony
was his trial testimony. It was read by the lawyers to the jury as substantive
evidence at the trial. When deposition testimony is presented in this way, it
is presented “as though the witness was present and testifying” in person at
the trial. Castaneda v. Redlands Christian Migrant Ass’n, 884 So. 2d
1087, 1090 (Fla. 4th DCA 2004); see also Fla. R. Civ. P. 1.330(a)
(stating that, where authorized by this rule, a deposition may be used “so far
as [it is] admissible under the rules of evidence applied as though the witness
were then present and testifying”).

Because Dennis Duignan’s deposition
testimony was presented to the jury as his trial testimony, the jury’s request
for his deposition transcript should have been interpreted as a request for the
transcript of the deposition testimony that was read aloud at trial.7 See Hazuri, 91 So. 3d
at 845 (explaining that because jurors are laypersons, a court should liberally
construe a request for transcripts, “especially when the intent of the jury[ ]
. . . is clear”). Indeed, the record in this case reflects that this is
precisely how the trial court, the tobacco companies’ counsel, and the Estate’s
counsel interpreted the request at the time it was made. The rules announced in
Hazuri apply to this case.

The Estate also argues that even if
the trial court was mistaken in its response to the jury note, any error was
harmless. Trial court error is regarded as harmless when “the beneficiary of
the error proves that there is no reasonable possibility that the error
contributed to the verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d
1251, 1256-57 (Fla. 2014).

The inferences PM and Reynolds
sought to draw from Dennis Duignan’s testimony — inferences the testimony
reasonably, although not exclusively, supports — were that Douglas Duignan
knew early on that cigarettes caused cancer and other diseases and that he
continued smoking notwithstanding this knowledge, not because he was addicted
but because he did not intend to quit smoking. These inferences were
significant in this case because they bore directly on PM and Reynolds’ argument
that Douglas Duignan was not a member of the Engle class because this
cancer was not caused by addiction, on their argument that Douglas Duignan was
comparatively negligent by continuing to smoke even when he was aware of the
risk of cancer and other disease, and on their argument that Douglas Duignan
did not rely on any information about addiction or the health effects of
smoking that the tobacco companies fraudulently concealed. The Estate and PM
and Reynolds addressed Dennis Duignan’s testimony in opening statements and
again in closing arguments. The fact that the jury asked for a transcript of
his testimony suggests that it may have found it significant as well. Under
these circumstances, there is at least a reasonable possibility that had the jury
been permitted to ask for a readback of Dennis Duignan’s testimony, it might
have resolved one or more of the determinative issues in the case differently
than it ultimately did. See, e.g., Barrow, 91 So. 3d at 835
(concluding that trial court’s use of language that may have misled the jury
into believing readbacks were prohibited was harmful where the facts showed
that “a review of the testimonies could have been most helpful to the jury”); Roper,
608 So. 2d at 536 (holding that, where there were discrepancies between the
testimony requested and other testimony in the case, “the trial court’s refusal
to even consider the reading of this crucial cross-examination” was not
harmless).

The trial court abused its
discretion in addressing the jury’s request for Dennis Duignan’s deposition,
and the Estate has not met the burden to show that error was harmless.
Accordingly, we must reverse and remand for a new trial. In light of this
result, we need not further address PM and Reynolds’ argument that the trial court
also improperly commented on the evidence in its response to the jury’s note.
We do, however, address one other issue raised on appeal because it relates to
a matter that rests within the scope of our remand and therefore requires our
consideration.

The
Trial Court’s Instruction on Reliance

PM and Reynolds also argue that the
trial court erred in instructing the jury on the reliance elements in the
claims for fraud by concealment and conspiracy because it failed to tell the
jury that Douglas Duignan was required to have relied on “a statement” by PM or
Reynolds in order for the Estate to prevail. We review a trial court’s decision
to give or withhold a jury instruction for abuse of discretion, ITD Indus.,
Inc. v. Bus. Res. Grp., 779 So. 2d 532, 543 (Fla. 2d DCA 2000), but will
find such an abuse of discretion and reverse when an instruction is misleading
and may have caused the jury to reach a result it otherwise would not have
reached, Citizens Prop. Ins. Corp. v. Salkey, 190 So. 3d 1092, 1095
(Fla. 2d DCA 2016), quashed on other grounds, No. SC16-784, 2017 WL
2709776, at *1 (Fla. June 23, 2017). While we do not read the reliance
requirement as narrowly as PM and Reynolds do — we do not think it
categorically requires reliance on “a statement” — the instruction in this
case was an abuse of discretion because it inaccurately told the jury to
determine whether Douglas Duignan generally relied on PM and Reynolds to
disclose material facts rather than telling the jury to determine whether he
relied on a misapprehension concerning a material fact that PM and Reynolds
concealed from him.

Our analysis begins with what the Engle
Phase I findings conclusively established in this case. As concerns fraud by
concealment, they established that PM and Reynolds “concealed or omitted
material information not otherwise known or available knowing that the material
was false or misleading or failed to disclose a material fact concerning the
health effects or addictive nature of smoking cigarettes.” See Engle,
945 So. 2d at 1257 n.4, 1277. For the conspiracy claims, they established that
PM and Reynolds “agreed to conceal or omit information regarding the health
effects of cigarettes or their addictive nature with the intention that smokers
and the public would rely on this information to their detriment.” Id.

The fact that the concealment or
omission of material information with the intention that it would be relied on
was a given, however, does not mean that it caused Douglas Duignan any harm
unless he is shown actually to have relied on it. In a claim founded in fraud,
the link between a defendant’s conduct and the plaintiff’s harm is supplied in
part by the requirement that the plaintiff detrimentally and reasonably relied
on something the defendant said or failed to say. See Humana Inc. v.
Castillo, 728 So. 2d 261, 265 (Fla. 2d DCA 1999) (“If a plaintiff claims to
be misled, but cannot demonstrate a causal connection between the defendant’s
conduct and the plaintiff’s misapprehension, the plaintiff cannot recover.”); see
also Calloway, 201 So. 3d at 766 (“Florida’s written opinions have
consistently included detrimental reliance as an element in fraudulent
concealment instructions.”). Thus, it is settled that “Engle-progeny
plaintiffs must . . . prove detrimental reliance in order to prevail” on claims
for fraudulent concealment and conspiracy to fraudulently conceal. Hess v.
Philip Morris USA, Inc., 175 So. 3d 687, 698 (Fla. 2015).

PM and Reynolds say that an Engle
progeny plaintiff must show his reliance on a direct statement by a defendant
(in the case of fraudulent concealment) or a member of the conspiracy (in the
case of conspiracy), but that understanding of reliance is artificially narrow.
It is true that fraud claims are commonly based on an affirmative statement by
the defendant and that in such circumstances the law speaks of reliance on a
statement or a representation. See, e.g., Butler v. Yusem, 44 So.
3d 102, 105 (Fla. 2010) (discussing reliance on such representations). But the
cases’ use of the formulation “detrimental reliance on a statement” or
something similar should not obscure the nature of the inquiry: when we ask
about detrimental reliance, we are asking whether the plaintiff would have
behaved in the same way had he known the true facts. See, e.g., Lance
v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (holding that individual issues
of reliance generally preclude fraud class actions because “[w]hat one
purchaser may rely on in entering into a contract may not be material to
another purchaser”), distinguished on other grounds in KPMG Peat
Marwick LLP v. Barner, 799 So. 2d 308, 309 (Fla. 2d DCA 2001). Depending on
the facts presented in a claim involving reliance, a statement is not the only
way in which the claimant may prove it.

Consider a fraud claim based on an
affirmative misrepresentation. A seller of a car tells a buyer that “this car
has never been in an accident.” In fact, the car has been in five of them. The
seller’s statement is false. Doubtless, a trial court would properly instruct a
jury to determine whether the plaintiff relied on a statement in deciding to
buy the car. See, e.g., Fla. Std. Jury Instr. (Civ.) 409.7. But it is
the fact that statement conveys — that the car had never been in an accident
— that really mattered to the buyer. An instruction that the buyer must prove
reliance on a statement is correct because the statement conveys the fact the
buyer misapprehended.

In cases involving concealment or
omission, however, the link between a statement by the defendant and the
plaintiff’s misapprehension may be less direct. Suppose our car seller assured
the buyer that “this car’s transmission has always worked fine.” Suppose also
that the statement was literally true but failed to note that the seller had
just discovered a defect in the transmission that will become a serious problem
within a year. Although the seller’s statement was true, the plaintiff might
still claim fraud on the theory that having chosen to speak about the condition
of the transmission, the seller had a duty to disclose the transmission defect
that had not yet manifested itself to the buyer. See, e.g., ZC Ins.
Co. v. Brooks, 847 So. 2d 547, 551 (Fla. 4th DCA 2003) (“Florida law
recognizes that fraud can occur by omission[ ] and places a duty on one who
undertakes to disclose material information to disclose that information
fully.”); Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin.
Partners, L.P.), 517 B.R. 310, 335 (Bankr. S.D. Fla. 2013) (“Fraudulent
concealment is common law fraud by means of actively concealing a material fact
in the fact [sic] of a duty to disclose that fact to the plaintiff.”). In this
circumstance, the statement itself only expressed the material fact that the
transmission had worked fine in the past — a historical fact that may not have
mattered to the buyer and, even if it did, cannot have operated to the buyer’s
detriment because it was true. The buyer here was not misled by the content of
a statement; he was misled regarding an unstated truth the seller became
obligated to disclose by virtue of having decided to speak. A jury instruction
that the buyer must have detrimentally relied on the seller’s statement would
be appropriate in this circumstance because the seller’s statement triggered
his disclosure obligation. But it would be more precise to ask whether he
relied on a misapprehension as to the fact concealed or omitted.

And then, of course, there can be
concealment or omission with no statement at all, such as when the car’s
seller, knowing the trunk is severely rusted inside, parks the car so as to
prevent the buyer from opening it fully and finding the damage. See, e.g.,
Restatement (Second) of Torts § 550, cmt. a (Am. Law. Inst. 2016) (providing
similar example of fraudulent concealment); see also Joiner v.
McCullers, 28 So. 2d 823, 824-25 (Fla. 1947) (explaining that “[t]he rule
that fraud cannot be predicated of a failure to disclose facts . . . does not
apply where a party[,] in addition to non-disclosure[,] uses any artifice to
throw the other party off his guard” or on “any . . . act . . . which tends
affirmatively to a suppression of the truth” (quoting 12 Ruling Case Law,
Fraud and Deceit § 80, 319-20 (William M. McKinney & Burdette A.
Rich, eds. (1916), a now out-of-print legal treatise). Alternatively, the
seller stands in a fiduciary relationship to the buyer and, although obligated
by that relationship to make disclosure of the rusted trunk, fails to do so. See
TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 880 (Fla. 4th DCA 2000)
(holding that a duty of disclosure exists where there is a fiduciary or other
relationship of trust and confidence between plaintiff and defendant (quoting State
v. Mark Marks, P.A., 654 So. 2d 1184, 1189 (Fla. 4th DCA 1995))). In either
circumstance, it would be inaccurate to instruct a jury to look for reliance on
a statement to fulfill the obligation of proof because no statement was made.
The buyer’s reliance, if any, was on the mistaken belief that there was nothing
wrong with the trunk. In this circumstance, it would be incorrect to instruct
the jury that it had to find reliance on a statement because there was not one
on which the buyer could rely.

The point of these hypotheticals is
not to catalog every variation of the facts upon which a reliance instruction
might be given. It is to show that whether an instruction that a jury must find
reliance on “a statement” is necessary or proper will depend on the nature of
the claims presented and the evidence at trial. See Calloway, 201
So. 3d at 766 (holding, in an Engle progeny case, that “[t]he instruction
need not include reliance on ‘a statement’ unless the facts of the case warrant
it”). It also is to show that when the facts involve concealment or omission,
an instruction requiring detrimental reliance on a misapprehension as to the
fact concealed or omitted will usually accurately inform the jury of what it
must find with respect to the element of detrimental reliance essential to that
claim. That is the case here.

PM and Reynolds argue, however, that
reliance on “a statement” is necessary in an Engle progeny case because
the concealment claim in the original Engle trial was predicated on
statements by the tobacco company defendants in that case. They point to
language in the Engle jury instructions showing that the concealment
claim hinged on statements that the Engle plaintiffs contended required
the tobacco companies to make complete disclosure of what they knew about the
health consequences of smoking and to arguments made by Engle class
counsel to similar effect. Assuming for argument’s sake that PM and Reynolds
have accurately construed the concealment claim litigated in the Engle
trial — a matter we need not decide — that still would not command a
hard-and-fast rule that an instruction in an Engle progeny case must
include a requirement that the plaintiff detrimentally relied on “a statement.”

The excerpts of the Engle
trial to which PM and Reynolds point depict a theory of concealment based on
circumstances in which a defendant has spoken on a subject — i.e., has made a
statement about it — and thereby became obligated to make a fuller disclosure
and, by failing to do so, concealed or omitted material facts. As described
above, it is at least equally accurate to say that the plaintiff’s reliance
must be on a misapprehension as to the material facts or information concealed
or omitted by the defendant, rather than on any specific statement it made.

This is consistent with the way
Florida courts have evaluated the legal sufficiency of a plaintiff’s evidence
of reliance in the context of the fraudulent concealment and conspiracy claims
in an Engle progeny case. An Engle plaintiff’s proof in such
cases typically includes, as it did in this case, extensive evidence of the
tobacco company defendants’ participation in a decades-long pervasive advertising
campaign and creation of a false controversy about the addictive nature and
health effects of cigarettes that operated to conceal the adverse consequences
of smoking from cigarette consumers. In such circumstances, the courts have
refused to hold that an Engle progeny plaintiff must identify specific
statements that he read or heard and relied upon in making a decision regarding
cigarette smoking in order to prevail. See Philip Morris USA, Inc. v.
Kayton, 104 So. 3d 1145, 1149 (Fla. 4th DCA 2012), quashed on other
grounds, 41 Fla. L. Weekly S113 (Fla. Feb. 1, 2016) (table decision); R.J.
Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069-70 (Fla. 1st DCA
2010). The reason is that the very pervasiveness of the advertising campaign
and false controversy and uniqueness of the facts concealed or omitted permits
an Engle progeny jury to infer reliance. See Philip Morris
USA, Inc. v. Hallgren, 124 So. 3d 350, 353 (Fla. 2d DCA 2013) (discussing Martin,
53 So. 3d at 1069-70). But see Berger v. Phillip Morris USA, Inc.,
101 F. Supp. 3d 1228, 1238-39 (M.D. Fla. 2015) (criticizing reasoning of these
cases and predicting that the Florida Supreme Court will not follow them), appeal
filed, 101 F. Supp. 3d 1228 (11th Cir. Jan. 5, 2016). This is not to say
that a tobacco company cannot show otherwise. Cf. Evers v. R.J.
Reynolds Tobacco Co., 195 So. 3d 1139, 1141 (Fla. 2d DCA 2015) (reversing
entry of a directed verdict and rejecting defendant’s sufficiency challenge on
reliance element where “the tobacco company has pointed to no evidence that Ms.
Loyd was aware that the nicotine in cigarettes was addictive, nor has it
conclusively demonstrated that despite some awareness on Ms. Loyd’s part that
smoking could cause health problems, that she was not reassured by the controversy
the tobacco companies generated to keep people smoking”). But the cases do seem
to establish that reliance on “a statement” is not required to prevail in an Engle
progeny case.

PM and Reynolds also argue that
without an instruction that requires the plaintiff to have relied on a
statement, they risk being held liable for a pure nondisclosure unaccompanied
by a misleading statement, misleading conduct, or duty to disclose. They correctly
observe that silence, unaccompanied by a duty to disclose, is not actionable as
fraud. See TransPetrol, 764 So. 2d at 879-80. And it is logically
true that if a jury were to look solely at the Engle Phase I finding of
“omissions” and a reliance instruction that allowed it to find fraud if the
plaintiff relied on the fact omitted, then there is at least a theoretical
possibility that PM or Reynolds could be held liable in fraud for pure silence
about the health effects or addictive properties of cigarettes.8 But to the extent this is a problem,
it is not a problem for the element of reliance to solve.

The question of whether a defendant
has a duty to make a disclosure is legally and factually distinct from the
question of whether a plaintiff relied on a nondisclosure. The question of duty
to disclose hinges on whether the defendant has done something toward the plaintiff
or occupies a status with respect to the plaintiff that obligates the defendant
to make a disclosure. See, e.g., Metcalf v. Johnson, 113 So. 2d
864, 868 (Fla. 2d DCA 1959) (“Where persons sustain towards another a relation
of trust and confidence, their silence when they ought to speak, or their
failure to disclose what they ought to disclose, is as much a fraud in law as
an actual affirmative false representation.”). The question of reliance, in
contrast, asks whether a misapprehension as to the undisclosed fact took on
significance in the mind of the plaintiff and influenced his decision-making
with respect to the matter at issue to his detriment. See, e.g., Raymond,
James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So. 2d 843, 845-46
(Fla. 2d DCA 1986) (holding that plaintiff satisfactorily alleged detrimental
reliance where it alleged that it entered into the transaction based on its
belief in the defendants’ representations). In other words, reliance is not
focused on the defendant’s duty but rather on the plaintiff’s reaction to a
misstated, concealed, or omitted fact.

PM and Reynolds’ concern about the
absence of the words “a statement” from the jury instructions is actually
linked to the question of duty, not the question of reliance. See, e.g.,
Marriott Int’l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So. 3d 902, 908
(Fla. 3d DCA 2015) (“A duty to disclose may arise where a party undertakes to
disclose certain facts, such that the party must then disclose the entire truth
known to him. Such a claim, however, must be supported by some evidence of a
statement that would trigger the further duty to disclose all known
material facts.” (emphasis added) (citation omitted)). The risk of PM’s or
Reynolds’ being held liable for an omission in the absence of a duty to
disclose is thus not the result of a failure to require reliance on a statement
but rather is the result of one of two possible conditions: (1) that the Phase
I Engle findings necessarily embrace a disclosure obligation that cannot
be relitigated in every Engle progeny case or (2) that a jury
instruction directed to the question of an Engle defendant’s disclosure
obligations may be proper if requested and implicated by the evidence in the
case. We express no opinion on either possibility because they are not before
us. We hold only that the element of reliance cannot do the work that PM and
Reynolds ask of it here.

Having determined that a special
jury instruction demanding reliance on “a statement” was not required in this
case, we consider the special instruction the trial court gave — namely, that
the jury could find the reliance element satisfied if the evidence showed that
Douglas Duignan “reasonably relied to his detriment that [PM and Reynolds]
would not conceal or omit disclosure of such material information.” This
instruction was both inaccurate and misleading. It in essence told the jury
that it could find reliance if it found that Douglas Duignan generally relied
on the tobacco companies to disclose all material information, without requiring
it to find that the material information the tobacco companies concealed or
omitted was in fact important to his decisions to begin or continue smoking.
Because the very purpose of the reliance requirement is to determine whether
the plaintiff acted differently because of PM’s or Reynolds’ concealment or
omission of facts, this instruction was misleading.

It also may have made a difference
to the outcome. As described above, the notion that Douglas Duignan started or
continued smoking because he enjoyed smoking and not because of anything PM or
Reynolds said or failed to say was a key element of their defense. A proper
instruction — one that required reliance on either a statement or on a
misapprehension as to a concealed or omitted fact — would have required the
jury to consider that possibility and determine whether the tobacco companies
were correct as to the reasons for Douglas Duignan’s actions. The instruction
the trial court gave, in contrast, allowed the jury to ignore this aspect of PM
and Reynolds’ defense because, if Douglas Duignan’s general reliance on them to
disclose everything is sufficient to prove reliance, there was no reason for
the jury to consider whether any particular undisclosed fact would have made a
difference to his decisions about smoking. Accordingly, the error in these
instructions might reasonably have misled the jury and constitutes reversible
error. See, e.g., Fla. Power & Light Co. v. McCollum, 140 So.
2d 569, 569 (Fla. 1962) (concluding that the proper “inquiry is whether the
jury might reasonably have been misled” and concluding that such constitutes a
miscarriage of justice under the civil harmless error statute in effect at the
time); Gerard v. Kenegson, 151 So. 2d 26, 28 (Fla. 2d DCA 1963) (“In
view of the fact that instruction . . . was erroneous[,] and since the
instruction can be reasonably calculated to confuse and mislead the jury, the
giving of the instruction was error.”); Veliz v. Am. Hosp., Inc., 414
So. 2d 226, 228 (Fla. 3d DCA 1982) (“An instruction which tends to confuse
rather than enlighten the jury is cause for reversal if it may have misled the
jury and caused them to arrive at a conclusion that otherwise they may not have
reached.”); see also § 59.041, Fla. Stat. (2015) (setting forth the
civil harmless error standard for appellate review and containing the same
miscarriage of justice language as that cited in Florida Power & Light).

At oral argument, the Estate
contended that this defect in the reliance instruction was harmless because the
trial court, at PM and Reynolds’ request, also instructed the jury on
materiality, telling it that “material information is that which is of such
importance that it would have made a difference in Douglas Duignan’s actions if
it had been disclosed.”9 Thus, according to the Estate, the
materiality instruction effectively required the jury to answer the question
that the reliance instruction should have asked. We disagree. Neither the jury
instructions nor the verdict form required the jury to determine materiality.
On the contrary, the jury was instructed to take materiality as a given. It was
told that the Engle Phase I findings conclusively established that PM
and Reynolds concealed or omitted material information related to the health
effects and addictive properties of cigarettes, and the trial court’s specific
instructions on the fraudulent concealment and conspiracy claims assumed materiality
rather than putting it to the jury to decide. Simply put, because the jury was
told both expressly and by implication to assume materiality rather than to
decide it, the Estate cannot establish a reasonable probability that the
instructional error did not affect the verdict on the fraud by concealment and
conspiracy claims. See Special, 160 So. 3d at 1256-57. The
instructional error here was not harmless.

At a minimum, the error would
require a new trial on the Estate’s claims for fraudulent concealment and
conspiracy to fraudulently conceal. The parties disagree, however, about
whether it also requires a new trial with respect to punitive damages. While
the error itself is one worthy of articulation so that it is not repeated in
the second trial, we need not reach a determination on what the scope of that
error alone would be on remand because we reverse and remand for a new trial on
all issues based on the trial court’s readback instruction.

Conclusion

For the foregoing reasons, the final
judgment is reversed and this case is remanded for a new trial. We certify
conflict with Schoeff, Calloway, McKeever, and Grossman
with respect to the comparative fault issue in this case.

Reversed and remanded; conflict
certified. (KELLY and BLACK, JJ., Concur. )

__________________

1Lorillard Tobacco Company is also
named as an appellant here. Lorillard, however, has been merged into Reynolds,
and Reynolds’ liability in this case includes liability as a
successor-by-merger to Lorillard.

2Engle v.
Liggett Grp., 945 So. 2d 1246 (Fla. 2006).

3They also seek to preserve for
review in the United States Supreme Court their arguments that it violates due
process to allow an Engle progeny plaintiff to establish the conduct
elements of his or her claims and that federal law impliedly preempts strict
liability and negligence claims based on the Engle findings. The first
of those arguments was rejected by the Florida Supreme Court in Philip
Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430-36 (Fla. 2013), and the
second was rejected by the Florida Supreme Court in R.J. Reynolds Tobacco
Co. v. Marotta, 214 So. 3d 590, 605 (Fla. 2017).

4Philip
Morris USA Inc. v. McKeever, 207 So.
3d 907 (Fla. 4th DCA 2017); R.J. Reynolds Tobacco Co. v. Grossman, 211
So. 3d 221 (Fla. 4th DCA 2017); R.J. Reynolds Tobacco Co. v. Calloway,
201 So. 3d 753 (Fla. 4th DCA 2016), review denied, No. SC16-1937, 2017
WL 1023712, *1 (Fla. Mar. 16, 2017), cert. denied, No. 16-1507, 2017 WL
1023712 (Oct. 2, 2017).

5To the extent the Estate contends
that this error was either unpreserved or waived, the contention is, on our
review of the record, without merit.

6The criminal rule has since been
amended to regulate a trial court’s communication with a jury concerning
readbacks in more detail and in a manner consistent with Hazuri. See
Fla. R. Crim. P. 3.410 (2017). Although adoption of a similar civil rule to
address readbacks was contemplated, no changes to the civil rules were made;
instead, a standard jury instruction in civil cases to govern the discretion
afforded a trial court when a jury requests a readback was adopted. In re
Amendments to the Fla. Rules of Civil Procedure, 967 So. 2d 178, 183 (Fla.
2007). Following Hazuri, the standard civil readback instruction, Fla.
Std. Jury Instr. (Civ.) 801.2, which contains an express statement for the
trial court to use in addressing jury requests for readbacks, was amended to
include a note to reflect some limits on the trial court’s discretion similar
to those in the criminal context. In re Standard Jury Instructions in Civil
Cases-Report No. 12-02, 115 So. 3d 208, 209 (Fla. 2013). Although the trial
court acknowledged that this standard instruction existed, it did not employ it
in responding to the jury note in this case.

7The cases upon which the Estate
relies are not applicable because none involved consideration of a jury’s
request to examine transcripts of deposition testimony read aloud to the jury
during trial as substantive evidence. See Adams v. State, 122 So.
3d 976, 978-80 (Fla. 2d DCA 2013) (holding, without discussing whether the
depositions were read at trial or the distinction between deposition and trial
testimony, that the trial court’s failure to inform the jury of the possibility
of a readback in response to a request for “all the depositions” and
“transcripts of all the testimony” was not remediable on appeal in the absence
of a contemporaneous objection in the trial court); Bannister v. State,
132 So. 3d 267, 278-80 (Fla. 4th DCA 2014) (holding that where a jury requested
the depositions in a case where trial witnesses read from them during parts of
their live testimony, “the jury was not requesting a read-back of the witness’s
testimony, but rather hard copies of the depositions” themselves); Delestre
v. State, 103 So. 3d 1026, 1027-28 (Fla. 5th DCA 2012) (holding that the
trial court’s failure to inform the jury of the possibility of a readback in
response to a request for “all the testimony” was not fundamental error); see
also Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir. 1998) (involving
circumstances where it was clear that “the jury sought transcripts of
depositions, rather than transcripts of the deposition testimony read during
trial or a readback of such testimony”).

8Whether
this logical possibility extends beyond theory to a real-world application is
an open question that we need not address. The Estate argues that this
possibility is wholly theoretical because the proof in this case includes
evidence of decades-long advertising campaigns and the creation of a false
controversy over the effect of smoking that by its nature included statements
rendered misleading by the concealment or omission of material facts.

9This
instruction appears to be based on a standard instruction in civil cases. See
Fla. Std. Jury Instr. (Civ.) 409.5 (“A material fact is one that is of such
importance that (claimant) would not have [entered into the transaction]
[acted], but for the false statement.”). There may be reason to question
whether this standard instruction is legally correct. Materiality is generally
evaluated under an objective test — inquiring whether a misrepresented or
omitted fact would have taken on significance in the mind of a reasonable
person. See Moustafa v. Omega Ins. Co., 201 So. 3d 710, 715 (Fla.
4th DCA 2016) (holding that materiality, as used in statute regarding false
representations in an insurance policy application, is to be determined under
an objective test); Silverman v. Pitterman, 574 So. 2d 275, 276 (Fla. 3d
DCA 1991) (“A material fact is generally defined as one to which a reasonable
person would attach importance in determining a choice of action.”); see
also Basic Inc. v. Levinson, 485 U.S. 224, 240 (1988) (holding,
under federal securities fraud statute, that “materiality depends on the
significance the reasonable investor would place on the withheld or
misrepresented information”); Dan B. Dobbs, The Law of Torts § 476 at
1363 (West 2001) (“Representations are material if a reasonable person would
want to consider the fact represented in determining whether to enter the
transaction in question, and also if a reasonable person would not care about
the fact represented but the plaintiff attaches her own idiosyncratic
importance to it and the defendant knows it.”). But see Atl. Nat’l
Bank of Fla. v. Vest, 480 So. 2d 1328, 1332 (Fla. 2d DCA 1985) (“A fact is
material if, but for the alleged nondisclosure or misrepresentation, the
complaining party would not have entered into the transaction.”).

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