FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2104
_____________________________
R.J. REYNOLDS TOBACCO
COMPANY,
Appellant/Cross-Appellee,
v.
LINDA PRENTICE, as Personal
Representative of the Estate of
John C. Price,
Appellee/Cross-Appellant.
_____________________________
On appeal from the Circuit Court for Duval County.
Tyrie W. Boyer, Judge.
October 24, 2019
ROWE, J. 1
R.J. Reynolds Tobacco Company (RJR) appeals from a final
judgment entered in favor of Linda Prentice, as personal
representative of the Estate of John C. Price (the Estate), on her
wrongful death claim. RJR raises several grounds for reversal and
the Estate raises several issues on cross-appeal. We write only to
address RJR’s argument that the trial court erred by denying
1Judge Rowe did not participate in the oral argument held on
July 18, 2018, but she did review the video recording of the
argument.
RJR’s request for a special jury instruction on conspiracy to
commit fraudulent concealment. The trial court’s refusal to give
the special jury instruction on conspiracy to commit fraudulent
concealment was an abuse of discretion because the proposed
instruction was a correct statement of the law, was supported by
the facts, was necessary for resolving the issues, and the failure to
give the instruction was prejudicial.
Facts
Price filed an individual Engle 2 lawsuit before his death,
alleging that his Chronic Obstructive Pulmonary Disease was
caused by his addiction to smoking cigarettes manufactured and
marketed by RJR. After Price died, the Estate maintained the suit
as a wrongful death action. The Estate alleged causes of action for
strict liability, negligence, fraudulent concealment, and conspiracy
to commit fraudulent concealment.
Price began smoking when he was 12 years old. By the time
he was 16, Price was smoking a pack a day. Price smoked two to
three packs of cigarettes a day for most of his adult life. He did not
quit smoking until he was 58, when he was diagnosed with COPD.
He died 16 years later, at the age of 74.
As with other Engle-progeny cases, the Estate presented
evidence that major tobacco companies in the United States,
including RJR, made fraudulent statements about the hazards of
smoking as early as December 4, 1953. Over a fifty-year period,
the tobacco companies concealed information about the addictive
nature of nicotine and the harmful effects of smoking while
engaging in marketing efforts to encourage people to smoke.
The jury returned a verdict for the Estate on the negligence
and strict liability counts. And while the jury found that the major
tobacco companies conspired to conceal health information or
information about addiction, the jury did not find that RJR’s
concealment or omission of material information about the health
2 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2
effects and addictive nature of smoking cigarettes was a legal
cause of Price’s death.
The jury awarded $6.4 million dollars in compensatory
damages, apportioning 60% of the fault for the legal cause of
Price’s death to Price and 40% to RJR. The jury found that
punitive damages were warranted but awarded none.
Analysis
We review the failure to give a proposed jury instruction for
an abuse of discretion. See R.J. Reynolds Tobacco Co. v. Jewett,
106 So. 3d 465, 467 (Fla. 1st DCA 2012). A trial court abuses its
discretion when it does not give a requested instruction that (1)
accurately states the law, (2) is supported by the facts of the case,
and (3) is necessary for the proper resolution of the issues by the
jury—if the requested instruction is not covered by other
instructions given to the jury and the failure to give the requested
instruction is prejudicial. Id.
RJR argues that the trial court abused its discretion when it
instructed the jury on the count of conspiracy to commit fraudulent
concealment. RJR argued that for the Estate to prove its
conspiracy claim, it would need to show that Price relied to his
detriment on a specific statement that concealed or omitted
material information about the health risks of smoking. During
the charge conference, RJR requested the following instruction:
The next issue for your determination is whether Mr.
Price reasonably relied to his detriment on a statement
that concealed or omitted material information regarding
the health effects of smoking cigarettes or their addictive
nature, and that was made in furtherance of Defendant’s
agreement to conceal health information or information
regarding addiction and, if so, whether such reliance was
a legal cause of Mr. Price’s COPD and death. In order to
be a legal cause of COPD and death, Plaintiff must show
that Mr. Price relied on statements by Defendant or any
of the other companies involved in the agreement that
omitted material information concerning the health effect
of cigarettes or their addictive nature or both made at any
3
time during or after December 1953. I hereby instruct
you that Plaintiff has made no claim for conspiracy to
conceal information regarding smoking and health or
addiction before December 1953.
Reliance on a statement made in furtherance of an
agreement to conceal is a legal cause of COPD and death
if it directly and in natural and continuous sequence
produces or contributes substantially to producing such
COPD and death so that it can reasonably be said that,
but for the reliance on the statement omitting the
material fact, the COPD and death would not have
occurred.
RJR argued that the proposed instruction was proper because
conspiracy to commit fraudulent concealment requires proof of
reliance on a false or misleading statement made by RJR.
The trial court declined to give the requested instruction and
instead gave the following instruction that did not require the jury
to find that Price relied on a specific statement:
The next issue for your determination is whether the
conspiracy to withhold health information or information
regarding addiction and any acts proven in furtherance of
that conspiracy were relied upon by John Price to his
detriment and were a legal cause of John Price’s death.
In regard to this civil conspiracy finding I instruct you
that R.J. Reynolds is responsible for every act committed
by each of the co-conspirators taken in furtherance of the
conspiracy. John Price’s reliance to his detriment on a
concealment or omission by any of the tobacco companies
or tobacco industry groups involved in the conspiracy is a
legal cause of John Price’s death if it directly and in a
natural and continuous sequence produced or contributed
substantially to producing his death so that it can
reasonably be said that but for John Price’s reliance his
death would not have occurred.
4
Based on this Court’s recent decision in R.J. Reynolds v. Whitmire,
260 So. 3d 536 (Fla. 1st DCA 2018), 3 this was error.
In Whitmire, RJR argued on appeal that the trial court erred
when it denied RJR’s motion for directed verdict because the Engle
plaintiff in that case failed to allege that he detrimentally relied
on a fraudulent statement by RJR. This Court acknowledged that
“the Engle findings generally establish that [RJR] made
misleading statements and concealed material information.” Id.
at 540. But we agreed with RJR’s argument about individual
reliance on specific statements and held that to support a claim for
fraudulent concealment, an Engle plaintiff must “prove that they
relied to their detriment on false statements from the tobacco
companies.” Id. at 539.
Here, no other jury instruction informed the jury of the need
to find that Price detrimentally relied on a false or misleading
statement by RJR. RJR’s proposed instruction was a correct
statement of the law supported by the facts of the case and
necessary for the jury to resolve properly the issues. Jewett, 106
So. 3d at 467. The failure to give the requested instruction was
prejudicial because the jury might have reasonably been misled by
the instruction that was given. See 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
3 Despite statements to the contrary in the dissent, our
decision in Whitmire does not conflict with our earlier decision in
R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA
2010). Martin established that reliance can be proven by
circumstantial evidence. Whitmire, 260 So. 3d at 540. But as we
explained in great detail in Whitmire, Martin should not be read
to circumvent earlier decisions from the Florida Supreme Court
holding that “plaintiffs must prove such reliance based on some
evidence to support the inference and the supreme court’s holdings
on the merit of circumstantial evidence to support liability.” Id. at
540; Hess v. Philip Morris USA, Inc., 175 So. 3d 687 (Fla. 2015)
(“The plaintiff ‘must certainly prove detrimental reliance’ to
prevail on a claim of fraudulent concealment.”).
5
justice under the civil harmless error statute in effect then); 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.”). Thus, reversal is required.
Disposition
Having reversed the judgment on the conspiracy count, we
must consider the appropriate scope of remand. In the concluding
sentence of the Initial Brief, RJR asks this Court to “order a new
trial or, in the alternative, reduce the judgment by Mr. Price’s
share of comparative fault.” 4 See Fla. R. App. P. 9.210(b) (requiring
that an initial brief contain “a conclusion, of not more than 1 page,
setting forth the precise relief sought”). We begin by observing the
discretion vested in an appellate court to direct a new trial on one
or more issues. See Tracey v. Wells Fargo Bank, N.A., 264 So. 3d
1152 (Fla. 2d DCA 2019) (discussing the principles governing an
appellate court’s authority when reversing a trial court judgment).
Section 59.35, Florida Statutes (2017), provides:
An appellate court may, in reversing a judgment of a
lower court brought before it for review by appeal, by the
order of reversal, if the error for which reversal is sought
is such as to require a new trial, direct that a new trial be
4 RJR thus did not limit its prayer for relief to requesting a
reduction in the compensatory damages award to account for
comparative fault. Rather, its prayer for relief in the alternative
was linked to RJR’s fifth claim of error—that the trial court should
have applied the comparative-fault statute even though the Estate
prevailed on its conspiracy claim. RJR asserts that the
comparative-fault statute applies to all Engle-progeny cases
“regardless of whether or not the plaintiff prevails on individual
claims of concealment or conspiracy.” Thus, the alternative prayer
for relief pertained only to RJR’s fifth claim. In its fourth claim of
error regarding the jury instruction on the conspiracy claim, RJR
does not so limit its prayer for relief.
6
had on all the issues shown by the record or upon a part
of such issues only.
Thus, remand directions are within the discretion of the appellate
court. Tracey, 264 So. 3d at 1161 (“Remand directions . . . seem
always to turn upon some basic postulate of fairness, which is, in
turn, an exercise of a court’s discretion.”); see also Yates v. St.
Johns Beach Dev. Co., 165 So. 384, 385 (Fla. 1935) (“It is a long-
standing legal principle that appellate courts have broad powers
to “make such disposition of the case as justice requires.”).
But that discretion is not without limits. Id. For example,
after granting a new trial on one issue, an appellate court must
order retrial of other issues when the issues are “inextricably
intertwined.” See Gasoline Prods. Co. v. Champlin Refining Co.,
283 U.S. 494 (1931). This is so because if the trial court “were to
retry only one of two such intertwined issues to a second jury,
while maintaining the vitality of the first jury’s findings on the
other issue, it would cause confusion and uncertainty and, thus,
an unfair trial.” Morrison Knudsen Corp. v. Fireman’s Fund Ins.
Co., 175 F.3d 1221, 1255-56 (10th Cir. 1999). Courts have found
issues of liability and damages to be inextricably intertwined when
a trial on damages alone would require the jury to consider the
same evidence as a trial on both liability and damages. See
Lawson v. Swim, 258 So. 2d 458, 459 (Fla. 1st DCA 1972) (after
reversing on damages, directing new trial on damages and liability
“because the evidence as to both issues is so inextricably interlaced
that the new jury should be allowed to consider and determine both
issues”); Equitable Life Assurance Soc’y of U.S. v. Fairbanks, 400
So. 2d 550, 553 (Fla. 4th DCA 1981). Courts have also found issues
of liability and comparative fault to be inextricably intertwined.
See, e.g., Lenhart v. Basora, 100 So. 3d 1177 (Fla. 4th DCA 2012)
(“To parse out the comparative negligence of the parties, the trier
of fact must hear the ‘totality of fault’ of each side.”); Currie v. Palm
Beach Cty., 578 So. 2d 760, 764 (Fla. 4th DCA 1991) (“One of the
issues tried to the jury was whether [plaintiff] was comparatively
negligent. Evidence on this issue necessarily impacts both liability
and damages.”).
Here, the jury found for Price on her claims for negligence and
conspiracy, but not on her claim for fraudulent concealment. The
7
jury awarded compensatory damages and apportioned fault
between Price and RJR. And in a separate phase, the jury declined
to award punitive damages against RJR. Based on our review of
the record, particularly the instructions read to the jury and the
verdict form, we conclude that the issues of negligence, conspiracy,
comparative fault, compensatory damages, and punitive damages
are inextricably intertwined and must be retried. 5
The following instructions were given to the jury: First, the
jury was instructed to determine whether Price was a member of
the Engle class. To do this, the jury had to find that Price was
addicted to cigarettes containing nicotine, and that addiction was
a legal cause of his COPD. Then, if the jury found that Price was a
member of the Engle class, it next had to consider two theories of
strict liability.
First, the jury had to decide whether RJR’s concealment or
omission of material information about the health risks and
addictive nature of cigarette smoking was relied on by Price to his
detriment and was the legal cause of his death. Second, the jury
had to determine that RJR conspired with other tobacco companies
to withhold health information or information about addiction and
that any acts proven in furtherance of that conspiracy were relied
on by Price to his detriment and were a legal cause of his death.
If the jury found that the greater weight of the evidence
supported one or more of Price’s claims, then it had to assign a
percentage of fault to Price for his death. This determination was
to be followed by a finding on the amount of damages suffered by
5 We do not disturb the jury’s verdict for RJR on the
fraudulent concealment count. The Estate did not cross-appeal the
judgment entered on the fraudulent concealment claim. See Webb
Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058,
1059-60 (Fla. 3d DCA 1981) (“The function of a cross-appeal is to
call into question error in the judgment appealed, which, although
substantially favorable to the appellee, does not completely accord
the relief to which the appellee believes itself entitled.”)
8
Price’s wife as a result of his death, including any damages that
she was reasonably certain to suffer in the future. Finally, the jury
was asked to determine whether punitive damages were
warranted as a punishment to RJR and as a deterrent to others.
The verdict form mirrored the instructions given to the jury.
The jury was asked if Price was a member of the Engle class. If it
answered affirmatively, the jury had to determine whether RJR’s
concealment or omission of information was the legal cause of
Price’s death and whether RJR’s involvement in the conspiracy to
conceal or omit information was a legal cause of Price’s death.
Next, the jury allocated fault between Price and RJR and decided
the total amount of damages suffered by Price’s wife. Finally, the
jury had to determine whether clear and convincing evidence
showed that punitive damages were warranted against RJR.
Thus, the verdict on comparative fault reflected the jury’s
finding that RJR was liable for the claims of negligence and
conspiracy. The jury was not instructed to and did not separate
out the amount of fault assigned to each claim. This also holds
true for the jury’s award of damages. 6 On remand, a second jury
could find that RJR did not conspire to conceal fraudulent
information. In that event, it is unclear how the second jury could
apportion fault between RJR and Price without reconsidering the
findings of the first jury on the negligence claim. Because the
issues here are inextricably intertwined, we reverse and remand
6 Despite the Estate’s assertion, a new trial on multiple issues
is not prohibited by the two-issue rule. This is because RJR timely
objected to the use of the general verdict form approved by the trial
court and submitted a special verdict form including a correct
statement of the conspiracy claim. Whitman v. Castlewood Int’l
Corp., 383 So. 2d 618, 619 (Fla. 1980) (“[W]here there is no proper
objection to the use of a general verdict, reversal is improper where
no error is found as to one of two issues submitted to the jury on
the basis that the appellant is unable to establish that he has been
prejudiced”); see also Liggett Group, Inc. v. Davis, 973 So. 2d 467,
473 (Fla. 4th DCA 2007) (declining to apply the two-issue rule
where “a general verdict form was submitted, without objection”).
9
for a new trial on the negligence and conspiracy claims, and on
compensatory damages, comparative fault, and punitive damages.
REVERSE and REMAND for a new trial.
B.L. THOMAS, J., concurs; MAKAR, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., dissenting.
In this tobacco tort case, the jury ruled in favor of the
deceased’s estate on three different claims: that R.J. Reynolds
(RJR) acted negligently, that RJR was strictly liable for the harm
to the deceased, and that RJR engaged in a conspiracy to conceal
material information about the dangers of smoking. It awarded
$6.4 million in compensatory damages but no punitive damages
despite determining they were warranted.
As to the conspiracy claim, RJR argues on appeal that the jury
was not properly instructed on the element of reliance, the same
argument it made in R.J. Reynolds Tobacco Co. v. Martin, 53 So.
3d 1060, 1069 (Fla. 1st DCA 2010) (“RJR also argues that Mrs.
Martin failed to prove the reliance element of her fraudulent
concealment claim because she put on no direct evidence showing
Mr. Martin relied on information put out by the tobacco companies
omitting scientific findings on the harmful effects of smoking.”).
This Court in Martin rejected RJR’s argument, noting that:
the record contains abundant evidence from which the
jury could infer Mr. Martin's reliance on pervasive
misleading advertising campaigns for the Lucky Strike
brand in particular and for cigarettes in general, and on
the false controversy created by the tobacco industry
during the years he smoked aimed at creating doubt
among smokers that cigarettes were hazardous to health.
10
Id. This case is identical to and governed by Martin. As in Martin,
John Charles Price, the now-deceased smoker in this litigation,
was aware of the pervasive misleading advertising campaign,
which affected his smoking decisions. When asked how RJR’s ads
injured him, he testified they presented the “Marlboro Man” as if
to “make everything look hunky-dory” and “Joe Camel” and the
“Old Gold Dancers” who “made [smoking] look like the thing to do,
the in crowd. You're in the in crowd.” In other words, they made
smoking attractive and cool, but concealed or failed to disclose its
serious known health risks that would have made it unattractive,
not so cool, . . . and fatal. Under Martin, the jury was entitled to
infer that the misleading ads detrimentally affected Mr. Price’s
smoking behavior, thereby establishing reliance.
Martin applies notwithstanding the recent panel decision in
R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536, 540 (Fla.
1st DCA 2018) (which was argued during the same session as this
case). First of all, a panel by itself cannot overrule a district
precedent. In re Rule 9.331, Determination of Causes by a Dist.
Court of Appeal En Banc, Fla. Rules of Appellate Procedure, 416
So. 2d 1127, 1128 (Fla. 1982) [hereinafter In re Rule 9.331] (“. . .
the suggestion that each three-judge panel may rule
indiscriminately without regard to previous decisions of the same
court is totally inconsistent with the philosophy of a strong district
court of appeal which possesses the responsibility to set the law
within its district.”). So, it can’t be, in theory, that Whitmire
overruled Martin.
Instead, the panel majority in Whitmire sought to distinguish
Martin. It conceded Martin’s central premise, “that detrimental
reliance on false statements can be proved through inference,” 260
So. 3d at 540, but held nonetheless that a jury cannot infer reliance
from the “abundant evidence” of a pervasive and misleading
advertising campaign to which smokers nationwide were subjected
based on “general evidence of the plaintiff’s life and behavior,” Id.
It found in RJR’s favor because the evidence in that case gave “no
indication that the [decedent-smoker] relied on any false
information disseminated by the tobacco companies.” Id. at 540–
41 (emphasis added). In contrast, Mr. Price’s deposition testimony
(read at trial) indicates that the pervasive tobacco advertisements
11
duped him into thinking smoking was the thing to do when the
tobacco companies knew, but concealed, smoking’s devastating
health consequences, which is precisely the type of evidence that
demonstrates detrimental reliance. Hess v. Philip Morris USA,
Inc., 175 So. 3d 687, 698 (Fla. 2015). 1
Notably, this is not a case where a tobacco company was
“silent” and failed to make actionable misleading statements that
concealed information; instead, as in Martin, it involves the same
“abundant evidence” of “pervasive misleading advertising
campaigns” presented in tobacco tort cases by which reliance can
be inferred. Martin, 53 So. 3d at 1069. In contrast to Martin,
however, Whitmire appears to require proof that a plaintiff-smoker
detrimentally relied on a specific false statement to prevail on a
fraudulent concealment theory versus proof of detrimental
reliance on inaccurate representations that withheld or concealed
material information. On this point, Martin and Whitmire—like
dysfunctional family members—appear to be hopelessly in conflict;
and Whitmire is an outlier statewide on whether reliance on a
specific statement is required. See Cote v. R.J. Reynolds Tobacco
Co., 909 F.3d 1094, 1108 (11th Cir. 2018) (surveying Florida
appellate cases and concluding that “Florida courts have
consistently held that Engle-progeny plaintiffs are not required to
show reliance on a specific statement.”). Our court either ought to
renounce Martin and adopt Whitmire (or vice versa), certify
conflict with other districts with whom we disagree, or certify a
1 The only issue in Hess was whether proof of detrimental
reliance is required during the repose period. The deceased smoker
“believed and trusted the cigarette companies” and was “taken in
by [their] advertisements,” but did so outside the repose period.
Hess, 175 So. 3d at 690. The supreme court held “that for statute
of repose purposes it is not necessary that the smoker relied during
the twelve-year repose period” and that “evidence of the
defendant’s wrongful conduct within the repose period” is
sufficient. Id. at 698. To avoid potential confusion, the court
reiterated that “Engle-progeny plaintiffs must certainly prove
detrimental reliance in order to prevail on their fraudulent
concealment claims,” but that such proof may be outside the repose
period, thereby breaking no new ground as to how detrimental
reliance can be proven. Id.
12
question of great public importance. Disharmonious precedents
serve only to undermine the stability and uniformity of our laws.
In re Rule 9.331, 416 So. 2d at 1128 (“... if intra-district conflict is
not resolved within the district courts by en banc decision, totally
inconsistent decisions could be left standing and litigants left in
doubt as to the state of law.”).
Next, RJR—even if it was entitled to the jury instruction it
sought on its conspiracy claim—would be entitled to a new trial on
that claim only. It would not be entitled to a new trial on the
negligence and strict liability claims, which are each a separate
and independent basis for liability against RJR. Common sense
tells us that a tortfeasor who injures another person by negligence
(or strict liability)—as in this case—can be held liable for those
acts regardless of whether the tortfeasor’s conspiracy to injure that
person succeeded or failed. Imagine if Alice negligently knocked
Humpty Dumpty off the wall, but hadn’t conspired (or failed to
conspire) with anyone to hurt him. Why would a jury verdict and
a damage award for Mr. Dumpty on his negligence count against
Alice be in doubt? Whether or not Alice conspired to hurt Mr.
Dumpty doesn’t affect the fact that Alice negligently injured him.
A retrial of the conspiracy claim against RJR would have no effect
on, and provide no basis for negating, the negligence and strict
liability claims against RJR for which the jury found liability and
damages (the latter would be the same with or without a
conspiracy).
Moreover, RJR didn’t even ask for the scope of relief granted
on appeal. 2 It sought a new trial as to the conspiracy claim, but it
made no argument that a new trial on all three counts was
necessitated because of the claimed conspiracy instruction error (it
sought, at a minimum, an adjustment to the monetary judgment
on the other counts “to account for comparative fault” percentages
the jury agreed upon). It cited no case for the proposition that it
2 RJR only sought a new trial as to all claims based on its three
evidence-based appellate arguments (exclusion of its expert’s
testimony, exclusion of portions of Mr. Price’s testimony, and
admission of “hypothetical patient” testimony, none of which are
the basis for relief in this appeal.)
13
gets a retrial on the negligence and strict liability counts for the
claimed conspiracy instruction omission, and none exist. 3
Tellingly, RJR said nothing in response to the estate’s point that
the “jury’s verdict on the negligence and strict-liability counts are
not implicated at all by the conspiracy instruction. No matter
what, then, these counts still stand.” Ans. Br. at 55. For all these
reasons, a retrial on all claims should not be granted on appeal
where no legal argument or briefing by RJR was made in this
Court seeking such relief.
_____________________________
Jeffrey A. Yarbrough, Robert B. Parrish, and David C. Reeves, of
Moseley, Prichard, Parrish, Knight & Jones, Jacksonville; Jason
T. Burnette, Charles R.A. Morse, Stephanie E. Parker and John
M. Walker of Jones Day, New York, NY; Tony A. Fuhrman and
Marie A. Borland of Hill, Ward & Henderson, Tampa, for
Appellant/Cross-Appellee.
Celene H. Humphries, Maegen Peek Luka, and Thomas J. Seider
of Brannock & Humphries, Tampa; Gregory D. Prysock and
Katherine M. Massa of Morgan & Morgan, P.A., Jacksonville; and
Keith R. Mitnik of Morgan & Morgan, P.A., Orlando, for
Appellee/Cross-Appellant.
3 The Second District in Philip Morris USA, Inc. v. Duignan,
243 So. 3d 426, 445 (Fla. 2d DCA 2017), reversed and required a
new trial as to all claims in that case, but not on the reliance issue;
instead, relief was based solely on a matter unrelated to the
substantive tort claims. Id. (“we reverse and remand for a new trial
on all issues based on the trial court’s readback instruction.”)
(emphasis added).
14