Opinion · Court of Appeals for the Eleventh Circuit
Theresa Graham v. R.J Reynolds Tobacco Company
857 F.3d 1169
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 2017-05-18
- Topic
- general
explaining that “the central features of due process” are “no- tice” and “an opportunity to be heard” | reasoning that the fact that “the express-preemption provi- sion” at issue “does not cover the” substance of the plaintiffs’ claims “supports an inference that there is no implied preemption of those” claims | providing that the party asserting preclusion bears the burden of establishing the elements | summarizing the Florida Supreme Court’s ruling that “the Phase I findings establish the causal link between the tobacco companies’ conduct and the class members’ injuries because the companies acted wrongfully toward all of the class members” | summarizing the Florida Supreme Court's ruling that "the Phase I findings establish the causal link between the tobacco companies' conduct and the class members' injuries because the companies acted wrongfully toward all of the class members" | “We will assume, without deciding, that the ‘actually decided’ requirement is a fundamental requirement of due process under Fayerweather . . .” | “The only way to make sense of these [Engle] proceedings is that the Florida courts determined that the Engle jury actually decided issues common to the class . . .” | “The only way to make sense of these proceedings is that the Florida courts determined that the Engle jury actually decided issues common to the class . . . .” | "The only way to make sense of these [ Engle ] proceedings is that the Florida courts determined that the Engle jury actually decided issues common to the class ..." | majority noting that Florida district courts of appeal "disagreed about how the smokers would prove causation in individual cases" | “Congress’ intent, of course, primarily is discerned 4 from the language of the pre-emption statute and the ‘statutory framework’ surrounding 5 it.” | “Congress’ intent, of course, primarily is discerned 6 from the language of the pre-emption statute and the ‘statutory framework’ surrounding 7 it.” | “Under the Full Faith and Credit Act, federal courts generally should respect state court judgments, even where erroneous.” | rec- ognizing preclusive effect of the Phase I findings on negligence and strict liability | conc. & dis. opn. of Carnes, J. | conc. & dis. opn. of Carnes, J.
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14590
________________________
D.C. Docket No. 3:09-cv-13602-MMH-JBT
THERESA GRAHAM,
as PR of Faye Dale Graham, deceased,
Plaintiff-Appellee,
versus
R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the Brown and Williamson Tobacco
Corporation and the American Tobacco Company,
PHILIP MORRIS USA, INC.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 18, 2017)
Before TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN,
JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.*
WILLIAM PRYOR, Circuit Judge:
*
Chief Judge Ed Carnes recused himself and did not participate in this decision.
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This appeal presents the questions whether due process forbids giving a
jury’s findings of negligence and strict liability in a class action against cigarette
manufacturers preclusive effect in a later individual suit by a class member and, if
not, whether federal law preempts the jury’s findings. Florida smokers and their
survivors filed a class action against several tobacco companies, and after a year-
long trial designed to answer common questions concerning the companies’
tortious conduct against all members of the class, a jury found that each company
had breached its duty of care and sold defective cigarettes. The Florida Supreme
Court upheld the jury verdicts of negligence and strict liability in Engle v. Liggett
Group, Inc.,
945 So. 2d 1246
(Fla. 2006) (Engle III), and decertified the class to allow individual actions about the remaining issues of specific causation, damages, and comparative fault. The Engle decision made clear that the jury findings of negligence and strict liability had preclusive effect in the later individual actions, and the Florida Supreme Court reaffirmed that ruling in Philip Morris USA, Inc. v. Douglas,110 So. 3d 419
(Fla. 2013). R.J. Reynolds Tobacco Company and Philip Morris USA Inc. challenge a jury verdict against them in one of those individual actions in the district court. They argue that giving the Engle findings preclusive effect violates the Due Process Clauses, U.S. Const. Amends. V, XIV, and they urge us to overrule our decision to the contrary in Walker v. R.J. Reynolds Tobacco Co.,734 F.3d 1278
(11th Cir. 2013). They argue, in the alternative, that federal law
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preempts giving preclusive effect to the Engle findings of negligence and strict
liability. Because we reaffirm our holding in Walker and conclude that federal law
does not preempt the Engle jury findings, we affirm the judgments against R.J.
Reynolds and Philip Morris.
I. BACKGROUND
In 1994, six individuals filed a putative class action in Florida court against
the major domestic cigarette manufacturers, including R.J. Reynolds and Philip
Morris, and two tobacco industry organizations.
Id. at 1281
. They alleged claims of strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress.Id.
The strict liability count alleged that the companies manufactured “cigarettes
containing nicotine,” “manufactured their defective tobacco products by
manipulating the levels of nicotine so as to addict the consuming public,” “failed to
design, manufacture, distribute and sell a safer alternative cigarette that would not
addict smokers,” and “failed to warn” members of the class of the dangers. The
negligence count alleged that the companies “breached their duty of reasonable
care” through several “acts and omissions,” including the “failure to design and
manufacture products that were not addictive,” the “failure to . . . adequately or
sufficiently reduce or remove the level of nicotine in cigarettes,” and the “failure to
warn the smoking consumers of the addictive nature of nicotine.” A Florida district
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court of appeal approved the certification of the following class: all Florida citizens
and residents, “and their survivors, who have suffered, presently suffer or have
died from diseases and medical conditions caused by the addiction to cigarettes
that contain nicotine.” R.J. Reynolds Tobacco Co. v. Engle,
672 So. 2d 39
, 40–42
(Fla. Dist. Ct. App. 1996) (Engle I).
The trial court in Engle divided the proceedings in three phases. Walker,
734 F.3d at 1281
. In Phase I, a jury “decide[d] issues common to the entire class, including general causation, the Engle defendants’ common liability to the class members . . ., and the class’s entitlement to punitive damages.” Douglas,110 So. 3d at 422
. Phase I was a year-long trial on “common issues relating exclusively to defendants’ conduct and the general health effects of smoking.” Liggett Grp. Inc. v. Engle,853 So. 2d 434, 441
(Fla. Dist. Ct. App. 2003) (Engle II). Phase I required “hundreds of witnesses, thousands of documents and exhibits, and tens of thousands of pages of testimony.” Douglas,110 So. 3d at 431
. In Phase II, the jury determined the liability of the tobacco companies to three class representatives, awarded them compensatory damages, and fixed the amount of class-wide punitive damages. Walker,734 F.3d at 1281
. The trial court planned to have new juries decide specific causation and damages for the remaining class members in Phase III.Id.
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In his opening statement in Phase I, the plaintiffs’ attorney stated, “The
evidence will show, ladies and gentlemen, that there is no dispute or controversy in
the medical and scientific communities but that cigarette smoking causes lung
cancer, heart disease, chronic obstructive pulmonary disease, emphysema and
many other diseases.” He stated that “the evidence will establish overwhelmingly”
that “[n]icotine is addictive.” And he explained that the tobacco companies “have
the technology to make a safer cigarette” but not one that is profitable. He also
stated that “the evidence will show that the tobacco companies have so
successfully misled the American people that many highly intelligent people, in
1998, are confused.”
The smokers presented a substantial body of evidence that all of the
cigarettes manufactured by the named defendants contained carcinogens that cause
disease, including cancer and heart disease, and that nicotine addicts smokers.
Douglas,
110 So. 3d at 423
. They presented evidence that the tobacco companies “failed to address the health effects and addictive nature of cigarettes, manipulated nicotine levels to make cigarettes more addictive, and concealed information about the dangers of smoking.”Id.
For example, Dr. Julius Richmond, a former Surgeon
General of the United States and professor at the Harvard Medical School, testified
that cigarettes contain carcinogens and that cigarettes cause pulmonary disease,
emphysema, lung cancer, heart disease, and bladder disease. Dr. Ronald Davis, a
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former director of the Office on Smoking and Health and former medical director
for the Michigan Department of Public Health, testified similarly that cigarette
smoking is addictive and that those who smoke have a heightened risk of stroke,
emphysema, cancer, and heart disease. Dr. David Burns, a professor of medicine at
the University of California, San Diego, School of Medicine, with a specialty in
pulmonary and critical care medicine, testified that nicotine is addictive and that
cigarette smoking causes cancers, lung disease, and heart disease. He was an
associate scientific editor of a 1981 Surgeon General’s Report, and he explained
that “the purpose of the report was to make it very clear to the public that there is
no safe cigarette and there is no safe level of consumption.” He testified, “[W]ith
the exception of the tobacco industry, no other scientific group in the last 30 years
has reviewed this evidence and reached a conclusion other than that cigarette
smoking causes disease.” Dr. John Holbrook, professor of medicine at the
University of Utah School of Medicine, who is board certified in the field of
internal medicine, testified that, in his experience, the tobacco industry “attempted
to confound and obfuscate science” in its funding of medical research. Dr. W.
Jarrard Goodwin, a professor at the University of Miami School of Medicine, with
a specialty in otolaryngology, testified that smoking causes cancer of the mouth,
larynx, and pharynx. Dr. Edward Staples, director of the artificial heart program at
the University of Florida, testified that cigarette smoking causes emphysema, lung
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cancer, coronary artery disease, and atherosclerosis. Dr. Neal Benowitz, a doctor at
San Francisco General Hospital and professor of medicine, psychiatry, and
biopharmaceutical sciences at the University of California in San Francisco,
testified that 90 percent of individuals begin smoking before the age of 20 and,
within two or three years, those young people will become addicted to nicotine. He
stated that tobacco companies could reduce the level of nicotine in cigarettes to
nonaddictive quantities. Some of the evidence of design defects applied only to
some brands of cigarettes. For example, the smokers presented evidence that
people who smoke light cigarettes tend to smoke more and inhale more deeply. But
the common thrust of the smokers’ evidence was that all of the companies’
cigarettes cause disease and addict smokers.
The tobacco companies put on evidence to defend themselves against the
several theories of liability. For example, the companies repeatedly challenged the
evidence that cigarette smoking causes disease. Dr. George Hensley, a former
professor at the University of Miami School of Medicine with a specialty in
pathology, testified that smoking does not cause pancreatic cancer. Dr. Hugh
Gilmore, a cardiology professor at the University of Miami School of Medicine,
testified that smoking is not a risk factor for the development of aortic aneurysms
or congestive heart failure. And Dr. Alden Cockburn, a urologist and a clinical
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professor at the University of South Florida, testified that smoking is a risk factor
for bladder cancer but was not definitively proven to be a cause of bladder cancer.
In closing argument, the smokers’ attorney explained that “[t]he common
issue trial has addressed the conduct of the tobacco industry.” He recounted some
of the expert testimony. He argued, without focusing on any specific brand or
manufacturer of cigarettes, that scientists agree that nicotine is addicting, and he
argued that there is no scientific debate as to whether cigarette smoking causes
certain diseases, including cancer and heart disease. He said, “None of them
qualified their answer one iota. Does cigarette smoking cause these diseases? Yes,
yes, yes. Clear, crisp and definitive.” He also referred the jury to a collection of
documents that discussed how the companies manipulated nicotine levels. He
mentioned different methods of manipulating nicotine levels but not different
brands.
In closing argument, the tobacco companies’ attorneys responded to the
smokers’ many arguments. The companies contended that cigarettes are not proven
to be addictive. They maintained that smokers can quit and that nicotine is a “far
cry from heroin or cocaine.” And the companies argued that they have tried to
make cigarettes safer. They argued that they have not “spiked” cigarettes with
nicotine but have reduced the level of nicotine in some cigarettes.
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The trial court instructed the jury in Phase I about the claim of strict liability
and negligence without regard to specific brands of cigarettes. For the claim of
strict liability, the trial court explained that “the issues are whether one or more of
the defendants designed, manufactured and marketed cigarettes which were
defective and unreasonably dangerous to smokers.” For the claim of negligence,
the trial court instructed the jury as follows:
On the claim of negligence, the issues are whether one or more of the
defendants were negligent in manufacturing, designing, marketing,
selling and distributing cigarettes which defendants knew or should
have known would cause serious and fatal diseases, including lung
cancer, or dependence-producing substances; in negligently not
testing tobacco and commercial cigarettes to confirm that smoking
causes human disease; in failing to design and produce a reasonably
safe cigarette with lower nicotine levels; in negligently measuring and
. . . understating nicotine and tar levels in low-tar cigarettes; and in
failing to warn smokers of the dangers of smoking and the
addictiveness or dependence-producing effects of cigarettes prior to
July 1 of 1969.
The verdict form included a series of yes-or-no questions. The tobacco
companies requested a more detailed verdict form, in which the jury would be
asked to identify “specific defects and tortious actions,” but the trial court rejected
that proposal.
Id.
The jury returned its verdict after eight days of deliberation. The
first question on the verdict form asked whether smoking cigarettes causes a list of
enumerated diseases and medical conditions. The jury answered “yes” for 20
specific diseases, including various forms of cancer. The second question asked
whether “cigarettes that contain nicotine [are] addictive or dependence producing.”
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The jury answered “yes.” The verdict form then contained nine questions about the
conduct of each tobacco company. One of the nine questions asked the jury to
decide whether each tobacco company was strictly liable. It asked if the tobacco
company “place[d] cigarettes on the market that were defective and unreasonably
dangerous.” Another question asked if each tobacco company was negligent. It
asked if the tobacco company “failed to exercise the degree of care which a
reasonable cigarette manufacturer would exercise under like circumstances.” The
jury answered “yes” to each of these nine questions for each tobacco company.
The last question on the verdict form asked the jury whether the actions of the
tobacco companies entitled the class to punitive damages, and the jury answered
“yes” for each tobacco company.
The trial court denied the tobacco companies’ motion for directed verdict.
Id.
Regarding strict liability, the court ruled that the evidence supported a finding
that all of the tobacco companies’ cigarettes were defective even if some of the
cigarettes had brand-specific dangers:
There was more than sufficient evidence at trial to satisfy the legal
requirements of this Count and to support the jury verdict that
cigarettes manufactured and placed on the market by the defendants
were defective in many ways including the fact that the cigarettes
contained many carcinogens, nitrosamines, and other deleterious
compounds such as carbon monoxide. That levels of nicotine were
manipulated, sometime by utilization of ammonia to achieve a desired
“free basing effect” of pure nicotine to the brain, and sometime by
using a higher nicotine content tobacco called Y–1, and by other
means such as manipulation of the levels of tar and nicotine. The
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evidence more than sufficiently proved that nicotine is an addictive
substance which when combined with other deleterious properties,
made the cigarette unreasonably dangerous. The evidence also
showed some cigarettes were manufactured with the breathing air
holes in the filter being too close to the lips so that they were covered
by the smoker thereby increasing the amount of the deleterious effect
of smoking the cigarette. There was also evidence at trial that some
filters being test marketed utilize glass fibers that could produce
disease and deleterious effects if inhaled by a smoker.
Engle v. R.J. Reynolds Tobacco,
2000 WL 33534572
, at *2 (Fla. Cir. Ct. 2000).
Regarding negligence, the court ruled that the evidence supported a finding that the
tobacco companies were negligent in producing and selling all of their cigarettes:
The verdict of the jury on the issue of Negligence is well supported by
the evidence. . . . The defendants according to the testimony, well
knew from their own research, that cigarettes were harmful to health
and were carcinogenic and addictive. By allowing the sale and
distribution of said product under those circumstances without taking
reasonable measures to prevent injury, constitutes, in this Court[’]s
opinion, and in the opinion of the jury as it turns out, negligence.
Id. at *4.
In Phase II, the same jury determined that the tobacco companies were liable
to the three class representatives and awarded them compensatory damages
totaling $12.7 million. Walker,
734 F.3d at 1282
. The jury awarded punitive damages of $145 billion to the class.Id.
The tobacco companies filed an interlocutory appeal of the judgments in Phases I and II.Id.
The Florida Supreme Court approved in part and vacated in part the jury verdicts. Engle III,945 So. 2d at 1254
. The Florida Supreme Court concluded that
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the trial court did not abuse its discretion in certifying the class for purposes of
Phase I and II.
Id. at 1267
. But the court decertified the class for Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate.”Id. at 1268
. The Florida Supreme Court “retain[ed]” the findings of liability by the jury from Phase I “other than those on the fraud and intentional infliction of emotion[al] distress claims, which involved highly individualized determinations, and the finding on entitlement to punitive damages questions, which was premature.”Id. at 1269
. The court explained, “Class members can choose to initiate individual damages actions,” and those retained findings, which include the findings that the companies acted negligently and that they sold defective products, “will have res judicata effect in those trials.”Id.
The court affirmed the damages award in favor of two of the class representatives and vacated the judgment in favor of the third class representative because the statute of limitations barred his claims.Id. at 1276
. The court vacated the award of punitive damages.Id.
at 1262–65.
After members of the Engle class filed thousands of individual actions in
state and federal courts, these courts had to determine the extent to which the
smokers could rely on the approved findings from Phase I to establish certain
elements of their claims. Walker,
734 F.3d at 1283
. In Brown v. R.J. Reynolds Tobacco Company,611 F.3d 1324
(11th Cir. 2010), we stated that, under Florida
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law, courts should give preclusive effect to the findings only to the extent that the
smoker can “show with a ‘reasonable degree of certainty’ that the specific factual
issue was determined in [his] favor.”
Id.
at 1335 (quoting Seaboard Coast Line R. Co. v. Indus. Contracting Co.,260 So. 2d 860, 865
(Fla. Dist. Ct. App. 1972)). We remanded to the district court to make that determination after considering the “entire trial record.”Id.
But several of the Florida district courts of appeal disagreed with our decision that a member of the Engle class had to establish from the trial record that an issue was actually decided. These district courts of appeal all held that the Phase I findings established the duty and breach elements of the smokers’ claims, though they disagreed about how the smokers would prove causation in individual cases. See Philip Morris USA, Inc. v. Douglas,83 So. 3d 1002, 1010
(Fla. Dist. Ct. App. 2012); R.J. Reynolds Tobacco Co. v. Brown,70 So. 3d 707
, 715–16 (Fla. Dist. Ct. App. 2011); R.J. Reynolds Tobacco Co. v. Martin,53 So. 3d 1060
, 1066–70 (Fla. Dist. Ct. App. 2010).
In Douglas, the Florida Supreme Court ruled that the approved findings
from Phase I established common elements of the claims of Engle class members.
110 So. 3d at 428–30. The court explained that, although the evidence submitted
during Phase I included both general and brand-specific defects, “the class action
jury was not asked to find brand-specific defects in the Engle defendants’
cigarettes.” Id. at 423. The jury was asked to determine “all common liability
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issues,” and it heard evidence that the tobacco companies’ cigarettes were
“defective because they are addictive and cause disease.” Id. The court explained
that the approved findings concerned conduct that “is common to all class
members and will not change from case to case” and that “the approved Phase I
findings are specific enough” to establish some elements of the smokers’ claims.
Id. at 428. That is, the jury findings “conclusively establish” that the tobacco
companies manufactured defective products and that the companies failed to
exercise the degree of care of a reasonable person. Id. at 430. And the jury findings
establish general causation. Id. at 428. Going forward, “to prevail on either strict
liability or negligence Engle claims, individual plaintiffs must establish
(i) membership in the Engle class; (ii) individual causation, i.e., that addiction to
smoking the Engle defendants’ cigarettes containing nicotine was a legal cause of
the injuries alleged; and (iii) damages.” Id. at 430.
The Florida Supreme Court then held that giving preclusive effect to the
approved findings from Phase I did not violate the right to due process of the
tobacco companies. Id. The companies had argued that “accepting the Phase I
findings as res judicata violates their due process rights because it is not clear from
the Phase I verdict which theories of liability the Engle jury actually decided to
reach those findings.” Id. The Douglas court concluded that the tobacco companies
had notice and an opportunity to be heard and that the Engle proceedings did not
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arbitrarily deprive them of property. Id. at 431. It explained that “the Phase I
verdict against the Engle defendants resolved all elements of the claims that had
anything to do with the Engle defendants’ cigarettes or their conduct.” Id. at 432.
The Douglas court stated, “[T]he defendants’ due process argument is an
attack on our decision in Engle to give the Phase I findings res judicata—as
opposed to issue preclusion—effect in class members’ individual damages
actions.” Id. The Douglas court explained that, when it gave “res judicata effect” to
the Phase I approved findings, Engle III,
945 So. 2d at 1269
, it meant claim preclusion, not issue preclusion. Douglas,110 So. 3d at 432
. The Douglas court stated that claim preclusion prevents the same parties from relitigating the same cause of action.Id.
Issue preclusion prevents the parties from relitigating “the same issues that were litigated and actually decided in a second suit involving a different cause of action.”Id. at 433
. The Douglas court ruled that the individual Engle actions involved the same causes of action.Id.
The Douglas court stated, “[T]o decide here that we really meant issue preclusion even though we said res judicata in Engle would effectively make the Phase I findings regarding the Engle defendants’ conduct useless in individual actions.”Id.
And the Douglas court concluded that the tobacco companies “do not have the right to have issue preclusion, as opposed to res judicata, apply to the Phase I findings.”Id. at 435
.
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In Walker, we held that giving res judicata effect to the findings of the jury
in Engle did not violate the rights of the tobacco companies to due process.
Walker, 734 F.3d at 1280–81. R.J. Reynolds had appealed the jury verdicts in favor
of two smokers after the district courts instructed the juries that R.J. Reynolds sold
defective cigarettes and was negligent. Id. at 1286. We explained that we were
obligated to give “full faith and credit to the decision in Engle, as interpreted in
Douglas,” unless it “would arbitrarily deprive R.J. Reynolds of its property without
due process of law.” Id. at 1287. We stated that no court “has ever held that due
process requires application of the federal common law of issue preclusion,” and
we did not decide whether it does. Id. at 1289. We concluded that, even if due
process requires that an issue be actually decided, the Florida Supreme Court ruled
in Douglas that the approved findings from Phase I concerned conduct that is
common to all class members and established negligence and defect elements of
the class members’ claims. Id. We concluded that the “actually decided”
requirement was satisfied and that it is “no concern of ours” what the Florida
Supreme Court calls the “relevant doctrine.” Id.
In this appeal, R.J. Reynolds and Philip Morris challenge a jury verdict in
favor of Earl Graham, as personal representative of the estate of his deceased wife,
Faye Graham, a member of the Engle class. Mr. Graham filed an individual Engle
action in the district court against R.J. Reynolds, Philip Morris, and other
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defendants later dismissed. He alleged that his wife developed lung cancer and
died because of her addiction to cigarettes manufactured by R.J. Reynolds and
Philip Morris. He asserted claims of strict liability, breach of warranty, negligence,
fraudulent concealment, and conspiracy to fraudulently conceal.
Under the Engle framework articulated in Douglas, the jury was not asked to
find that the cigarettes Faye Graham smoked were defective or that the tobacco
companies were negligent. Graham v. R.J. Reynolds Tobacco Co.,
782 F.3d 1261, 1273
(11th Cir. 2015), reh’g en banc granted, op. vacated,811 F.3d 434
(11th Cir. 2016). The district court treated those findings as having already been established.Id.
For the claims of negligence and strict liability, the jury was asked to determine only whether Faye Graham was a member of the Engle class and whether smoking cigarettes manufactured by R.J. Reynolds or Philip Morris “was a legal cause” of Faye Graham’s injuries.Id.
The district court instructed the jury that, to find legal
causation, Graham’s addiction to cigarettes must have “directly and in natural and
continuous sequence produced or contributed substantially to producing” her
injuries.
The jury found for Graham on the claims of strict liability and negligence.
Id.
The jury awarded Graham $2.75 million in damages and determined that Faye Graham was 70 percent at fault, R.J. Reynolds was 20 percent at fault, and Philip Morris was 10 percent at fault.Id.
at 1273–74. The district court entered judgment
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against R.J. Reynolds for $550,000 and against Philip Morris for $275,000. Id. at
1274. The district court denied the tobacco companies’ motion for judgment as a
matter of law. Id. Theresa Graham later replaced Earl Graham as personal
representative of the estate.
A panel of this Circuit reversed the judgment of the district court. Id. at
1285. The panel held that the Engle findings of strict liability and negligence are
preempted by federal law. Id. We later granted the petition for rehearing en banc
filed by Graham and vacated the panel opinion. Graham, 811 F.3d at 434–35. In
addition to briefing the preemption issue, we allowed the parties to brief whether
giving effect to the jury’s findings in Engle would “violate the tobacco companies’
rights under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution notwithstanding the panel’s holding in Walker.” The Florida
Supreme Court has since ruled that federal law does not preempt “state tort”
actions against the tobacco companies and that, even if federal law preempted a
ban on the sale of cigarettes, the Engle Phase I findings do “not amount to . . . a
ban” that might conflict with federal law. R.J. Reynolds Tobacco Co. v. Marotta,
No. SC16-218,
2017 WL 1282111
, at *9 (Fla. Apr. 6, 2017).
II. STANDARD OF REVIEW
We review de novo the denial of a motion for judgment as a matter of law.
Mendoza v. Borden, Inc.,
195 F.3d 1238, 1244
(11th Cir. 1999) (en banc). We also
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review de novo questions of constitutional law, Nichols v. Hopper,
173 F.3d 820, 822
(11th Cir. 1999), and whether federal law preempts a state law claim, Atwater v. Nat’l Football League Players Ass’n,626 F.3d 1170, 1179
(11th Cir. 2010).
III. DISCUSSION
We divide our discussion in two parts. First, we explain why giving full faith
and credit to the Engle jury findings of negligence and strict liability does not
deprive R.J. Reynolds and Philip Morris of property without due process of law.
Second, we conclude that the Engle jury findings of negligence and strict liability
are not preempted by federal law.
A. Giving Preclusive Effect to the Negligence and Strict Liability Findings
Does Not Violate Due Process.
The Full Faith and Credit Act,
28 U.S.C. § 1738
, requires federal courts to “give preclusive effect to a state court judgment to the same extent as would courts of the state in which the judgment was entered,” Kahn v. Smith Barney Shearson Inc.,115 F.3d 930, 933
(11th Cir. 1997) (quoting Battle v. Liberty Nat’l Life Ins. Co.,877 F.2d 877, 882
(11th Cir. 1989)), subject to the requirements of the Due Process Clause, see Kremer v. Chem. Const. Corp.,456 U.S. 461, 481
(1982). R.J.
Reynolds and Philip Morris argue that the Due Process Clause mandates that an
issue be actually decided in one case before it is given preclusive effect in another.
They argue that relying on the approved jury findings in individual actions by
Engle members is an application of issue preclusion and that the Florida courts did
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not actually decide issues of strict liability and negligence for all class members.
They argue that by abandoning the “actually decided” requirement, the Florida
courts abrogated a fundamental protection against arbitrary deprivations of
property in violation of the Due Process Clause. See Honda Motor Co. v. Oberg,
512 U.S. 415, 430
(1994).
We need not determine whether the Due Process Clause requires that an
issue be actually decided in an earlier case before the judgment from that case is
given preclusive effect on that issue. We will assume, without deciding, that the
“actually decided” requirement is a fundamental requirement of due process under
Fayerweather v. Ritch,
195 U.S. 276
(1904). Even with that assumption, no
violation of due process occurred when the district court gave the Engle findings
preclusive effect. Based on our review of the Engle proceedings, we are satisfied
that the Engle jury actually decided common elements of the negligence and strict
liability of R.J. Reynolds and Philip Morris.
The Florida Supreme Court made clear in Douglas that the Engle jury
decided common elements of the negligence and strict liability of the tobacco
companies for all class members. And for that reason, the Florida Supreme Court
explained that the findings were binding in individual Engle actions. It stated,
“Because these findings go to the defendants’ underlying conduct, which is
common to all class members and will not change from case to case, we held that
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these approved ‘Phase I common core findings . . . will have res judicata effect’ in
class members’ ‘individual damages actions.’” Douglas,
110 So. 3d at 428
(alteration in original) (quoting Engle III,945 So. 2d at 1269
).
The Florida Supreme Court rejected the same argument that R.J. Reynolds
and Philip Morris make here about what the Engle jury decided. R.J. Reynolds and
Philip Morris asserted that some of the evidence presented at the Engle trial
applied to specific brands of cigarettes. They argued that, although the Engle jury
found that the tobacco companies “place[d] cigarettes on the market that were
defective and unreasonably dangerous,” the jury did not necessarily find that all
cigarettes the defendants placed on the market were defective and unreasonably
dangerous. The Florida Supreme Court rejected this argument and stated that “this
Court in Engle necessarily decided that the approved Phase I findings” are
“specific enough to establish a causal link between their conduct and damages to
individual plaintiffs who prove injuries caused by addiction to smoking the Engle
defendants’ cigarettes.”
Id.
That is, the Phase I findings establish the causal link
between the tobacco companies’ conduct and the class members’ injuries because
the companies acted wrongfully toward all of the class members. Whether that
conduct was the legal cause of the individual class members’ injuries, and whether
the individual class members were entitled to damages, was left for later individual
trials.
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After reviewing the Engle trial record, we are satisfied that the Florida
Supreme Court determined that the Engle jury found the common elements of
negligence and strict liability against Philip Morris and R.J. Reynolds. Both
companies admit that the smokers presented common “proof that the Engle
defendants’ cigarettes were defective because they are addictive and cause disease”
in addition to brand-specific evidence. Id. at 423. In two days of closing
arguments, the smokers’ attorneys recounted the ample body of evidence that
smoking cigarettes causes disease without focusing on the differences in the
designs of various brands. The trial court instructed the jury to “determine ‘all
common liability issues’ for the class concerning ‘the conduct of the tobacco
industry.’” Id. Moreover, the jury’s answers on the verdict form, when read
together with the entire record, were consistent with the general theories that the
tobacco companies’ cigarettes are defective and the sale of their cigarettes is
negligent because all of those cigarettes cause disease and are addictive.
The first two questions on the verdict form are most naturally read to apply
to all cigarettes manufactured by the tobacco companies. Question 1 asked whether
“smoking cigarettes cause one or more of the following diseases or medical
conditions.” The jury answered “yes” to 20 of 23 diseases. This question does not
admit of any limitation, nor did the accompanying jury instruction, and its natural
interpretation is that it was asking about all cigarettes manufactured by the tobacco
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companies, not just some. Similarly, question 2 asked whether “cigarettes that
contain nicotine [are] addictive or dependence producing,” and the jury answered
“yes.” The evidence at trial was that nicotine, and not some other ingredient, made
cigarettes addictive. In closing arguments, the tobacco companies’ counsel told the
jury that the question should be understood to inquire whether “all cigarettes that
contain nicotine [are] addictive or dependence-producing,” not whether there is
“one cigarette or a brand of cigarettes or two brands of cigarettes” that are
addictive.
The strict liability and negligence questions presented to the jury used the
same unmodified noun—“cigarettes”—that was used to refer to all cigarettes
manufactured by the tobacco companies in questions 1 and 2. The strict liability
interrogatory asked whether “one or more of the defendant tobacco companies
place[d] cigarettes on the market that were defective and unreasonably dangerous,”
and the negligence interrogatory inquired whether the smokers had “proven that
one or more of the defendant tobacco companies failed to exercise the degree of
care which a reasonable cigarette manufacturer would exercise under like
circumstances.” The jury answered “yes” to both questions for R.J. Reynolds and
Philip Morris. When asked about strict liability, the jury found that R.J. Reynolds
and Philip Morris had sold defective cigarettes “both before and after July 1,
1974,” and, with respect to the negligence claim, that they had acted negligently by
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selling, manufacturing, and distributing cigarettes “both before and after July 1,
1969.” That the jury found that these tobacco companies’ tortious conduct swept
across both time periods is consistent with a general theory of liability that applied
to all their cigarettes.
After the jury returned a verdict in favor of the class on all counts, the trial
court ruled that there was sufficient evidence to support those verdicts, including
negligence and strict liability, and cited evidence that applied to all of the
cigarettes made by the tobacco companies. For example, it stated, “The evidence
more than sufficiently proved that nicotine is an addictive substance which when
combined with other deleterious properties, made the cigarette unreasonably
dangerous.” Engle,
2000 WL 33534572
, at *2. The only way to make sense of
these proceedings is that the Florida courts determined that the Engle jury actually
decided issues common to the class, and the district court did not abrogate a
protection against arbitrary deprivations of property in affording the Phase I jury’s
findings preclusive effect in Graham’s case.
R.J. Reynolds and Philip Morris argue that if the Florida Supreme Court had
determined that the Engle jury actually decided common elements of negligence
and strict liability for all class members, it would not have used the term “claim
preclusion” in Douglas to refer to the preclusive effect of the jury findings and
thereby evade the “actually decided” requirement, but we disagree. The Florida
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Supreme Court explained that issue preclusion applies in actions involving
different causes of action and claim preclusion applies in actions involving the
same causes of action. Douglas, 110 So. 3d at 432–33. And in explaining the
differences between claim preclusion and issue preclusion, the Florida Supreme
Court reiterated that the Engle jury made findings about the tobacco companies’
conduct that applied to all class members. It said, “No matter the wording of the
findings on the Phase I verdict form, the jury considered and determined specific
matters related to the [Engle] defendants’ conduct. Because the findings are
common to all class members, [individual plaintiffs are] entitled to rely on them
. . . .” Id. at 433 (alterations in original) (quoting Martin,
53 So. 3d at 1067
).
The terminology employed by the Florida Supreme Court was unorthodox,
but “[i]n determining what is due process of law, regard must be had to substance,
not to form.” Fayerweather,
195 U.S. at 297
. The Supreme Court of the United States has acknowledged that “[t]he preclusive effects of former adjudication are discussed in varying and, at times, seemingly conflicting terminology, attributable to the evolution of preclusion concepts over the years.” Migra v. Warren City School Dist. Bd. of Educ.,465 U.S. 75
, 77 n.1 (1984). As long as the state proceedings “satisf[ied] the minimum procedural requirements” of due process, Kremer,456 U.S. at 481
, what the Florida Supreme Court “calls the relevant doctrine . . . is no concern of ours,” Walker,734 F.3d at 1289
.
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Apart from their argument that the jury did not actually decide common
issues of negligence and strict liability, R.J. Reynolds and Philip Morris do not
deny that they were afforded due process. That is, they do not contend that they
were denied notice or an opportunity to be heard, the central features of due
process. See Fuentes v. Shevin,
407 U.S. 67, 80
(1972). The Florida courts provided them notice that the jury findings would establish the “conduct elements of the class’s claims.” Douglas,110 So. 3d at 429
. And the year-long trial provided them “a full and fair opportunity to litigate the issues of common liability in Phase I.” Walker,734 F.3d at 1288
. Both tobacco companies seized that opportunity, presenting “testimony that cigarettes were not addictive and were not proven to cause disease and that they had designed the safest cigarette possible.” Douglas,110 So. 3d at 423
. And they continue to contest liability in individual actions by class members, in which new juries determine issues of individual causation, apportionment of fault, and damages.Id. at 430
; Engle III,945 So. 2d at 1254
.
The Due Process Clause does not require a state to follow the federal
common law of res judicata and collateral estoppel. “State courts are generally free
to develop their own rules for protecting against the relitigation of common issues
or the piecemeal resolution of disputes.” Richards v. Jefferson Cty., Ala.,
517 U.S. 793, 797
(1996). For example, a state might allow offensive, non-mutual collateral estoppel. E.g., In re Owens,532 N.E.2d 248, 252
(Ill. 1988). And courts, both state
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and federal, frequently manage class actions by splitting them into separate phases.
See generally William B. Rubenstein, Newberg on Class Actions §§ 10.6, 11.3 (5th
ed.). Engle is not the first time that “a defendant’s common liability [was]
established through a class action and given binding effect in subsequent individual
damages actions.” Douglas,
110 So. 3d at 429
(collecting cases); see also Brown v. Electrolux Home Prods., Inc.,817 F.3d 1225, 1239
(11th Cir. 2016) (discussing several “tools to decide individual damages” in a class action, including “(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; [and] (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages” (quoting In re Visa Check/MasterMoney Antitrust Litig.,280 F.3d 124, 141
(2d Cir. 2001))). The Due Process Clause requires only that the application of principles of res judicata by a state affords the parties notice and an opportunity to be heard so as to avoid an arbitrary deprivation of property. Fuentes,407 U.S. at 80
.
We recognize that the Engle Court defined a novel notion of res judicata, but
we cannot say that the substance of that doctrine or its application in these trials
was so unfair as to violate the constitutional guarantee of due process. “The very
nature of due process negates any concept of inflexible procedures universally
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applicable to every imaginable situation,” Cafeteria & Rest. Workers Union, Local
473, AFL-CIO v. McElroy,
367 U.S. 886, 895
(1961), and our review of the record
establishes that the tobacco companies had notice that the Engle trial involved
common evidence and theories of negligence and strict liability that applied to all
cigarettes manufactured by all tobacco companies and sold to all members of the
class during the relevant periods. The tobacco companies were given an
opportunity to be heard on the common theories in a year-long trial followed by an
appeal to the Florida Supreme Court and later individual trials and appeals on the
remaining issues of proximate causation, comparative fault, and damages. See
Engle III, 945 So. 2d at 1254–56.
Contrary to the dissent’s view, see Dissenting Op. of Tjoflat, J., at 90–91, no
tobacco company can be held liable to any smoker without proof at trial that the
smoker belongs to the Engle class, that she smoked cigarettes manufactured by the
company during the relevant class period, and that smoking was the proximate
cause of her injury. Every tobacco company must also be afforded the opportunity
to contest the smokers’ pleadings and evidence and to plead and prove the
smokers’ comparative fault. Indeed, in this appeal, after the district court instructed
it, the jury reduced Graham’s damages award for his deceased spouse’s
comparative fault. And in other Engle progeny litigation, tobacco companies have
won defense verdicts. E.g., Suarez v. R.J. Reynolds Tobacco Co., No. 09-79584-
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CA-01 (11th Fla. Cir. Ct., Nov. 25, 2015) (final judgment). “[S]tate proceedings
need do no more than satisfy the minimum procedural requirements” of due
process to receive full faith and credit. Kremer,
456 U.S. at 481
. The record in this
appeal establishes that R.J. Reynolds and Philip Morris were afforded the
protections mandated by the Due Process Clause.
“Under the Full Faith and Credit Act, federal courts generally should respect
state court judgments, even where erroneous.” Lops v. Lops,
140 F.3d 927, 938
(11th Cir. 1998); see also Hickerson v. City of New York,146 F.3d 99, 107
(2d Cir.
1998) (“[T]o second-guess that court’s determination of this issue would violate
the full faith and credit statute.”). We decide only whether applying Florida law in
this case violates due process. We do not endorse or condemn the use of a class
action in Phase I of the Engle litigation. Nor do we endorse or condemn the
explication of res judicata by the Supreme Court of Florida. We say only that
applying Florida law in this trial did not violate the tobacco companies’ rights to
due process of law.
R.J. Reynolds and Philip Morris argue that we are not compelled to give full
faith and credit to Douglas because Graham was not a party in Douglas and
Florida law does not allow non-mutual issue preclusion. Because state courts
would not be bound by the Douglas decision in this circumstance, they argue, we
are also not bound. But this argument is a straw man.
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We do not give full faith and credit to the decision in Douglas; we instead
give full faith and credit to the jury findings in Engle. The Florida Supreme Court
in Engle interpreted those findings to determine what the jury actually decided, and
the Florida Supreme Court in Douglas decided a matter of state law when it
explained the preclusive effect of the Engle jury’s Phase I findings. We are bound
by the decisions of state supreme courts on matters of state law when we exercise
diversity jurisdiction, subject to the constraints of due process. See Walker,
734 F.3d at 1284
. We conclude that giving preclusive effect to the findings of
negligence and strict liability by the Engle jury in individual actions by Engle class
members against R.J. Reynolds and Philip Morris does not deprive these tobacco
companies of property without due process of law.
B. Federal Law Does Not Preempt the Jury Findings of Negligence and Strict
Liability.
“The Supremacy Clause of Art. VI of the Constitution provides Congress
with the power to pre-empt state law.” La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 368
(1986). “State action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment.” Lorillard Tobacco Co. v. Reilly,533 U.S. 525, 541
(2001) (citations omitted). Conflicts arise in two ways: “when
compliance with both federal and state regulations is impossible or when the state
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law ‘stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,’” Hillman v. Maretta,
133 S. Ct. 1943, 1950
(2013) (citation omitted) (quoting Hines v. Davidowitz,312 U.S. 52, 67
(1941)). “‘[T]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc. v. Lohr,518 U.S. 470, 485
(1996) (quoting Cipollone v. Liggett Grp., Inc.,505 U.S. 504, 516
(1992)). “Congress’ intent, of course, primarily is discerned from the language of the pre-emption statute and the ‘statutory framework’ surrounding it.”Id.
at 486 (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n,505 U.S. 88, 111
(1992) (Kennedy, J., concurring in part and
concurring in the judgment)).
This appeal presents an issue of conflict preemption. A party asserting
conflict preemption faces a high bar:
[I]n all pre-emption cases, and particularly in those in which Congress
has “legislated . . . in a field which the States have traditionally
occupied,” . . . we “start with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.”
Wyeth v. Levine,
555 U.S. 555, 565
(2009) (second and third alteration in original) (quoting Lohr,518 U.S. at 485
).
R.J. Reynolds and Philip Morris argue that the obstacle form of conflict
preemption defeats the findings of negligence and strict liability in Engle. They
argue that this Circuit avoided finding a violation of due process in Walker by
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construing the Engle findings as embracing a theory that all cigarettes
manufactured by the tobacco companies are defective and the sale of all of those
cigarettes is negligent because all of those cigarettes are dangerous—that is, that all
of those cigarettes are addictive and cause disease. Federal law, they contend,
preempts state law claims premised on the theory that all of the cigarettes
manufactured by the tobacco companies are inherently dangerous.
We disagree. We conclude that federal tobacco laws do not preempt state
tort claims based on the dangerousness of all the cigarettes manufactured by the
tobacco companies. In other words, federal law does not preempt the Engle jury
findings.
Congress has enacted six tobacco-specific laws that are relevant to this
appeal. In 1965, Congress passed the Federal Cigarette Labeling and Advertising
Act,
Pub. L. No. 89-92, 79
Stat. 282, which made it unlawful to sell cigarettes without the following warning label: “Caution: Cigarette Smoking May Be Hazardous to Your Health.”Id.
§ 4, 79 Stat. at 283. And the Act prohibited requiring any additional “statement relating to smoking and health” on cigarette packages or in cigarette advertising. Id. § 5, 79 Stat. at 283. Congress then passed the Public Health Cigarette Smoking Act of 1969,Pub. L. No. 91-222, 84
Stat. 87, which changed the language of the warning label to “Warning: The Surgeon General Has Determined That Smoking Is Dangerous to Your Health.”Id.
§ 2, 84
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Stat. at 88. The Act made it “unlawful to advertise cigarettes on any medium of
electronic communication subject to the jurisdiction of the Federal
Communications Commission.” Id., 84 Stat. at 89. And it amended the preemption
provision in the 1965 Act by adding the following statement: “No requirement or
prohibition based on smoking and health shall be imposed under State law with
respect to the advertising or promotion of any cigarettes the packages of which are
labeled in conformity with the provisions of this Act.” Id., 84 Stat. at 88 (codified
as amended at
15 U.S.C. § 1334
(b)). Congress again amended the Labeling Act by passing the Comprehensive Smoking Education Act,Pub. L. No. 98-474, 98
Stat. 2200 (1984). The Act replaced the warning with a series of warnings that must appear on cigarette packages and advertisements on a rotating basis.Id.
§ 4, 98 Stat. at 2201–03. The Act also required the Secretary of Health and Human Services to “establish and carry out a program to inform the public of any dangers to human health presented by cigarette smoking.” Id. § 3, 98 Stat. at 2200. The Alcohol and Drug Abuse Amendments of 1983,Pub. L. No. 98-24, 97
Stat. 175, required the Secretary of Health and Human Services to issue a report to Congress every three years on, among other things, “the addictive property of tobacco.”Id.
§ 2, 97 Stat. at 178. The Comprehensive Smokeless Tobacco Health Education Act of 1986,Pub. L. No. 99-252, 100
Stat. 30, regulates smokeless tobacco products. The Act requires that a warning appear on smokeless tobacco products,id.
§ 3, 100
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Stat. at 30–32, prohibits the advertising of smokeless tobacco products “on any
medium of electronic communications subject to the jurisdiction of the Federal
Communications Commission,” id. § 3(f), 100 Stat. at 32, and requires the
Secretary of Health and Human Services to create a program to inform the public
about the health effects of using smokeless tobacco products, id. § 2, 100 Stat. at
30. Last, the ADAMHA Reorganization Act,
Pub. L. No. 102-321, 106
Stat. 323 (1992), conditions certain block grants on states making it unlawful “for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18.”Id.
§ 202, 106 Stat. at 394 (codified at 42 U.S.C. § 300x-26(a)(1)). We do not consider the Family Smoking Prevention and Tobacco Control Act,Pub. L. No. 111-31, 123
Stat. 1776 (2009), because the Act does not affect actions, like the individual Engle actions, that were pending in federal or state court during its passage,id.
§ 4, 123 Stat. at 1782.
Affording preclusive effect to the Engle jury findings does not frustrate the
objectives of these federal laws on tobacco. The only significant requirement
imposed on cigarette manufacturers by the six federal laws in question is the
warning label requirement for cigarette packages and advertising. Three of the six
statutes—the Federal Cigarette Labeling and Advertising Act, the Public Health
Cigarette Smoking Act of 1969, and the Comprehensive Smoking Education Act—
concern this warning label. Fittingly, the Labeling Act expressly preempts state
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laws that would impose labeling requirements. See
15 U.S.C. § 1334
; Altria Grp., Inc. v. Good,555 U.S. 70, 79
(2008). The other three statutes impose no significant
requirements on cigarette manufacturers: the Comprehensive Smokeless Tobacco
Health Education Act of 1986 concerns smokeless products, not cigarettes; the
Alcohol and Drug Abuse Amendments imposed a requirement on the Secretary of
Health and Human Services to submit reports about cigarettes; and the ADAMHA
Reorganization Act conditions block grants to states.
Contrary to R.J. Reynolds and Philip Morris’s argument, the statement of
purpose in the Labeling Act,
15 U.S.C. § 1331
, does not preserve cigarette sales. The second listed purpose of establishing a program to “deal with cigarette labeling and advertising” states, “[C]ommerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing labeling and advertising regulations.”Id.
Congress sought to protect “commerce and the national economy” specifically from the effect of “diverse, nonuniform and confusing cigarette labeling and advertising” rules,id.,
not from more stringent regulation generally.
See Altria Grp., 555 U.S. at 78–79 (explaining that the “Act’s pre-emption
provisions promote its second purpose” by preventing States from “enforcing rules
that are based on an assumption that the federal warnings are inadequate”); Reilly,
533 U.S. at 542–43 (paraphrasing the second purpose as “to protect the national
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economy from interference due to diverse, nonuniform, and confusing cigarette
labeling and advertising regulations”); Marotta,
2017 WL 1282111
, at *7 (“Thus,
Congress clearly intended to ‘protect the national economy from the burden
imposed by diverse, nonuniform, and confusing cigarette labeling and advertising
regulations,’ but did not clearly intend to extend broad immunity from common
law liability to cigarette manufacturers.” (citation omitted)).
Nothing in these six statutes reflects a federal objective to permit the sale or
manufacture of cigarettes. As a result, we cannot say that Congress created a
regulatory scheme that does not tolerate tort liability based on the dangerousness of
all cigarettes manufactured by the tobacco companies but tolerates tort actions
based on theories with a more limited scope. Cf. Altria Grp., 555 U.S. at 551
(holding that federal law did not preempt common-law fraud claim against
cigarette manufacturer based on advertising of light cigarettes); Boerner v. Brown
& Williamson Tobacco Co.,
394 F.3d 594, 600
(8th Cir. 2005) (holding that the Labeling Act did not preempt design defect claim against cigarette manufacturer); Spain v. Brown & Williamson Tobacco Corp.,363 F.3d 1183, 1197
(11th Cir.
2004) (holding that the Labeling Act did not preempt negligent and wanton design
and manufacture claims against cigarette manufacturer). Federal law is silent both
by its terms and by its operation.
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Determinations of strict liability and negligence based on the Engle findings
create no conflict with a federal objective. R.J. Reynolds and Philip Morris do not
contend that the Engle jury based its findings of liability on a determination that
the warnings on cigarette packages and advertisements were inadequate such that
the jury’s findings imposed labeling requirements preempted by federal law. Rules
governing the design of cigarettes or even banning the sale of cigarettes do not
frustrate accomplishing a rule that requires a certain label when and if cigarettes
are sold. See Hunter v. Philip Morris USA,
582 F.3d 1039, 1048
(9th Cir. 2009) (explaining that product-liability claim against cigarette manufacturer “does not present an obstacle to the congressional policy concerning the regulation of tobacco” because the federal laws “concern labeling, research and education and do not provide strong evidence of a federal policy against more stringent state regulation”); Marotta,2017 WL 1282111
, at *9 (“Strict liability and negligence
claims, such as those brought . . . under Engle, do not interfere with the regulation
of advertising and promotion of cigarettes and, therefore, do not clearly conflict
with congressional objectives.”).
That the express-preemption provision in the Labeling Act does not cover
the negligence and strict liability findings in Engle supports an inference that there
is no implied preemption of those findings. See Wyeth, 555 U.S. at 574–75; Riegel
v. Medtronic, Inc.,
552 U.S. 312, 327
(2008). Granted, “[i]f a federal law contains
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an express pre-emption clause, it does not immediately end the inquiry because the
question of the substance and scope of Congress’ displacement of state law still
remains.” Altria Grp., 555 U.S. at 76; see also Geier v. Am. Honda Motor Co.,
529 U.S. 861, 874
(2000). But, with the Federal Cigarette Labeling and Advertising
Act and the Public Health Cigarette Smoking Act of 1969, in Cipollone the
Supreme Court interpreted the express-preemption provision as exclusively
defining the preemptive scope of the Acts:
In our opinion, the pre-emptive scope of the 1965 Act and the 1969
Act is governed entirely by the express language in § 5 of each Act.
When Congress has considered the issue of pre-emption and has
included in the enacted legislation a provision explicitly addressing
that issue, and when that provision provides a “reliable indicium of
congressional intent with respect to state authority,” “there is no need
to infer congressional intent to pre-empt state laws from the
substantive provisions” of the legislation. Such reasoning is a variant
of the familiar principle of expression unius est exclusio alterius:
Congress’ enactment of a provision defining the pre-emptive reach of
a statute implies that matters beyond that reach are not pre-empted. In
this case, the other provisions of the 1965 and 1969 Acts offer no
cause to look beyond § 5 of each Act. Therefore, we need only
identify the domain expressly pre-empted by each of those sections.
Cipollone,
505 U.S. at 517
(citations omitted) (quoting Malone v. White Motor Corp.,435 U.S. 497, 505
(1978); Cal. Fed. Sav. & Loan Ass’n v. Guerra,479 U.S. 272, 282
(1987) (plurality opinion)).
The Supreme Court has explained that “in Cipollone, we engaged in a
conflict pre-emption analysis of the Federal Cigarette Labeling and Advertising
Act, and found ‘no general, inherent conflict between federal preemption of state
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warning requirements and the continued vitality of state common-law damages
actions.’” Freightliner Corp. v. Myrick,
514 U.S. 280
, 288–89 (1995) (citation omitted) (quoting Cipollone,505 U.S. at 518
). Although the Supreme Court considered only the 1965 and 1969 statutes in Cipollone, “[s]ince the Labeling Act’s passage, Congress’s basic goals have remained largely unchanged.” Graham,782 F.3d at 1277
. We find nothing in the four statutes passed later that alters the
preemptive scope of federal law on tobacco in a way that is relevant to this appeal.
R.J. Reynolds and Philip Morris argue that, by passing legislation that does
not ban cigarettes, Congress has established a policy of allowing the sale of
tobacco products, but this argument is contrary to settled law that inaction by
Congress cannot serve as justification for finding federal preemption of state law.
See Wyeth, 555 U.S. at 602–03 (Thomas, J., concurring in the judgment)
(collecting cases); Sprietsma v. Mercury Marine,
537 U.S. 51, 65
(2002) (“History teaches us that a Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority . . . .”); Schneidewind v. ANR Pipeline Co.,485 U.S. 293, 306
(1988)
(“This Court generally is reluctant to draw inferences from Congress’ failure to
act.”). “[O]therwise, deliberate federal inaction could always imply pre-emption,
which cannot be. There is no federal pre-emption in vacuo, without a constitutional
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text or a federal statute to assert it.” P.R. Dep’t of Consumer Affairs v. Isla
Petroleum Corp.,
485 U.S. 495, 503
(1988).
R.J. Reynolds and Philip Morris also rely on the discussion of federal law
regulating cigarettes in FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120
(2000), but that decision does not support their argument for preemption. In Brown & Williamson, the Supreme Court considered whether the Food and Drug Administration had jurisdiction over tobacco products.Id.
at 125–26. The Court held that it did not.Id. at 126
. The Supreme Court reasoned that, if the Administration had jurisdiction, the Food, Drug, and Cosmetic Act would require the administration to remove cigarettes from the market.Id. at 135
. The Supreme Court considered the six federal statutes that regulate cigarette labeling and concluded that Congress would not have enacted these laws if it intended the Administration to ban cigarettes. Seeid.
at 137–38. “[T]he collective premise of these statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States.”Id. at 139
. The Supreme Court stated that Congress has “foreclosed the removal of tobacco products from the market” in this context,id.
at
137—surmising that Congress would not have bothered to regulate a product that it
intended to have removed from the market nationwide by a federal agency.
Although federal agencies have only the authority granted to them by
Congress, states are sovereign. Brown & Williamson does not address state
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sovereignty, and it does not consider the preemptive reach of federal legislation on
tobacco. Marotta,
2017 WL 1282111
at *6 (“[W]hile Brown & Williamson held
that the FDA did not have the authority to regulate tobacco products, it said
nothing about the states’ power to do the same.”). Cipollone does.
State governments retain their historic police powers to protect public health.
See U.S. Const. Amend. X. “It is one of the happy incidents of the federal system
that a single courageous state may, if its citizens choose, serve as a laboratory; and
try novel social and economic experiments without risk to the rest of the country.”
New State Ice Co. v. Liebmann,
285 U.S. 262
, 386–87 (1932) (Brandeis, J., dissenting). Over a hundred years ago, Tennessee, like some other states, passed a law making it a crime to sell cigarettes. 6 Clark Bell, Medico-Legal Studies 50–65 (1902). Although that experiment in prohibition, like so many others, failed, Tennessee did not violate the federal Constitution. In upholding the law as not infringing the power of Congress under the Commerce Clause, the Supreme Court described the cigarette ban as the type of legislation that states may enact “for the preservation of the public health or safety” under their police powers. Austin v. Tennessee,179 U.S. 343, 349
(1900). Today, state and local governments continue
to enact public health measures to respond to the dangers associated with smoking,
see, e.g., Paul A. Diller, Why Do Cities Innovate in Public Health? Implications of
Scale and Structure, 91 Wash. U. L. Rev 1219, 1234–35 (2014) (discussing state
41
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and local bans of flavored cigarettes passed before the Tobacco Control Act
banned cigarette flavorings); Patrick Kabat, Note, “Till Naught but Ash is Left to
See”: Statewide Smoking Bans, Ballot Initiatives, and the Public Sphere, 9 Yale J.
Health Pol’y L. & Ethics 128, 138–45 (2009) (surveying state prohibitions of
smoking in public places), and to combat other public health risks, see, e.g.,
Cal. Health & Safety Code § 114377
(banning certain trans fats); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,556 F.3d 114
(2d Cir. 2009) (upholding New York City
law requiring caloric disclosure on chain restaurant menus against preemption
challenge); Trans Fat and Menu Labeling Legislation, Nat’l Conference of State
Legislatures (Jan. 2013), http://www.ncsl.org/research/ health/trans-fat-and-menu-
labeling-legislation.aspx (all Internet materials as visited July 9, 2016 and available
in Clerk of Court’s case file) (listing six states that had enacted menu labeling
legislation as of 2010).
Florida may employ its police power to regulate cigarette sales and to
impose tort liability on cigarette manufacturers. We may not supersede the
“historic police powers of the States” unless it is the “clear and manifest purpose of
Congress.” Wyeth,
555 U.S. at 565
(quoting Lohr,518 U.S. at 485
). And “[t]hat assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States,” Altria Grp., 555 U.S. at 77, like public health, Lohr,518 U.S. at 475
.
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R.J. Reynolds and Philip Morris would have us presume that Congress
established a right to sell cigarettes based on a handful of federal labeling
requirements. We decline to do so. We discern no “clear and manifest purpose” to
displace tort liability based on the dangerousness of all cigarettes manufactured by
the tobacco companies.
IV. CONCLUSION
We AFFIRM the judgments against R.J. Reynolds and Philip Morris.
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JULIE CARNES, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority opinion’s decision that federal law does not preempt
the jury findings in the underlying Engle litigation. As to defendants’ Due Process
Clause challenge, the latter presents a close question on which reasonable minds
can differ. I do not disagree that the majority opinion articulates reasonable
arguments in explaining why it rejects defendants’ challenge. On balance,
however, I agree with Judges Tjoflat and Wilson that on the particular and unusual
facts of the underlying Engle litigation, its jury findings are too non-specific to
warrant them being given preclusive effect in subsequent trials. Concluding that
defendants’ due process rights were therefore violated, I respectfully dissent as to
the Majority’s contrary holding.
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TJOFLAT, Circuit Judge, dissenting:
In 1998, the Circuit Court of the Eleventh Judicial Circuit in and for Dade
County, Florida held a trial—Phase I of the Engle class action—to determine
whether the largest domestic tobacco companies (the “Engle defendants”) engaged
in conduct proscribed by Florida tort law.1 The Phase I jury found that each of the
Engle defendants engaged in nine different kinds of proscribed conduct.2
Eight years later, the Florida Supreme Court “retain[ed] the jury’s Phase I
findings other than those on the fraud and intentional infliction of emotion distress
claims.” Engle v. Liggett Group, Inc. (Engle III),
945 So. 2d 1246, 1269
(Fla.
2006). It then instructed progeny courts tasked with adjudicating causation and
1
Phase I also involved two contract claims, breach of implied warranty and breach of
express warranty. Nevertheless, for convenience, I will refer to all Phase I claims as tort claims.
2
Specifically, the Phase I jury found that each of the Engle defendants (1) “place[d]
cigarettes on the market that were defective and unreasonably dangerous”; (2) “[made] a false
statement of material fact, either knowing the statement was false or misleading, or being
without knowledge as to its truth or falsity, with the intention of misleading smokers”; (3)
“conceal[ed] or omit[ted] material information, not otherwise known or available, knowing the
material was false and misleading, or failed to disclose a material fact concerning or proving the
health effects and/or addictive nature of smoking cigarettes”; (4) “enter[ed] into an agreement to
misrepresent information relating to the health effects of cigarette smoking, or the addictive
nature of smoking cigarettes, with the intention that smokers and members of the public rely to
their detriment”; (5) “enter[ed] into an agreement to conceal or omit information regarding the
health effects of cigarette smoking, or the addictive nature of smoking cigarettes with the
intention that smokers and members of the public rely to their detriment”; (6) “[sold] or
[supplied] cigarettes that were defective in that they were not reasonably fit for the uses
intended”; (7) “[sold] or [supplied] cigarettes that, at the time of sale or supply, did not conform
to representations of fact . . . either orally or in writing”; (8) “failed to exercise the degree of care
which a reasonable cigarette manufacturer would exercise under like circumstances”; (9)
“engaged in extreme and outrageous conduct or with reckless disregard relating to cigarettes sold
or supplied to Florida smokers with the intent to inflict severe emotional distress.”
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damages in individual class-member tort actions to give “res judicata effect” to the
retained findings.
Id. at 1254
.
But progeny courts had trouble understanding Engle III’s res judicata
instruction. For starters, issuing such a mandate was strange because courts that
render a judgment ordinarily do not attempt to predetermine the res judicata effect
of that judgment.3 Courts tasked with determining whether to enforce a rendering
court’s judgment make those determinations themselves.4 On top of that, the Phase
I findings only established that the Engle defendants engaged in proscribed
conduct; the findings revealed nothing about what the defendants actually did.
Thus, the findings were useless in helping plaintiffs prove, as Florida law requires,5
that their injuries were caused by a defendant’s proscribed conduct. Judge May of
Florida’s Fourth District Court of Appeal lamented that “parties to the tobacco
litigation [were left to] . . . play legal poker, placing their bets on questions left
unresolved by Engle.” Brown R.J. Reynolds Tobacco Co. v. Brown (Jimmie Lee
Brown II),
70 So. 3d 707, 720
(Fla. 4th Dist. Ct. App. 2011) (May, J., concurring).
Seven years after it had issued its res judicata mandate, the Florida Supreme
Court finally stepped in to explain it. The Court conceded that the Phase I findings
3
“A court conducting an action cannot predetermine the res judicata effect of the
judgment; that effect can be tested only in a subsequent action.” Matsushita Elec. Indus. Co. v.
Epstein,
516 U.S. 367, 396
,116 S. Ct. 873, 888
,134 L. Ed. 2d 6
(1996) (Ginsburg, J., concurring
in part and dissenting in part) (citation omitted).
4
See infra note 77 and accompanying text.
5
See, e.g., infra notes 57–58 and accompanying text.
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were “useless in individual actions.” Philip Morris USA, Inc. v. Douglas (Douglas
III),
110 So. 3d 419, 433
(Fla. 2013) (emphasis added). Nevertheless, by retaining certain Phase I findings and instructing progeny courts to give those findings res judicata effect in Engle III, the Court claimed it had intended to allow class members to simply “assume[]” “injury as a result of the Engle defendants’ conduct.”Id. at 430
(emphasis added). Thus, regardless of the tort a class member alleged, she only needed to prove that she was injured as a result of “‘smoking cigarettes’ manufactured by [a defendant]” to recover.Id. at 426
. In effect, then,
the Douglas III Court proscribed the very act of selling cigarettes, albeit under
color of traditional tort law. So long as a defendant’s sale of cigarettes caused a
plaintiff’s injury—that is, so long as a plaintiff was injured by smoking
cigarettes—the plaintiff had no need to identify, for example, the defendant’s
negligent conduct or unreasonably dangerous product defect.
This case was litigated pursuant to the state law set forth in Douglas III.
Earl Graham, as personal representative of the estate of Faye Graham, alleged in
his complaint all of the torts for which Engle III had retained findings. Yet, he was
never required to identify any proscribed conduct other than the sale of cigarettes.
With respect to both negligence and strict liability, the District Court instructed the
jury to determine only “whether smoking cigarettes manufactured by [the]
Defendant was a legal cause of Faye Graham’s death.”
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The Majority purport to give effect to the “state law” created in Douglas III.
Ante at 30. They recognize that it is “unorthodox,” “novel,” and amounts to an
irrebuttable presumption of liability. Id. at 25, 27, 28. Yet, they believe that due
process is flexible enough to accommodate such a law. Id. at 29. It is not.6
This is not to say, as the Majority imply, that I would “require a state to
follow the federal common law of res judicata and collateral estoppel.” Id. at 26. I
agree that states are free to fashion “novel” and even “unorthodox” laws. Id. at 25,
27. I do not agree, however, that federal courts must apply such laws when doing
so deprives litigants of an opportunity to be heard on essential elements of their
case.7 Id. at 29–30. I also disagree with the Majority’s conclusion that Florida’s
proscribing the sale of cigarettes is not preempted by federal law.
6
In W. & A.R.R. v. Henderson,
279 U.S. 639, 643
,49 S. Ct. 445, 447
,73 L. Ed. 884
(1929), the Supreme Court held that a defendant railroad company’s due process rights were violated where it was held liable even though the plaintiff offered no evidence of a connection between tortious conduct and the injury at issue.Id.
at 640–44, 49 S. Ct. 445–48. Instead of presenting such evidence, the plaintiff relied on a state-law presumption that “[t]he mere fact of collision between a railway train and a vehicle . . . was caused by negligence of the railway company.”Id.
at 642–43,49 S. Ct. 445, 447
. Because, as a factual matter, a collision could result from “negligence of the railway, or of the traveler on the highway, or of both, or without fault of any one,” the Supreme Court struck down the presumption as “unreasonable and arbitrary.”Id. at 644
,49 S. Ct. 445, 447
.
Here, Mr. Graham neither alleged nor proved that Ms. Graham’s death was caused by the
defendants’ tortious conduct. Instead, he was allowed to “assume[]” “injury as a result of the
Engle defendants’ conduct” on the basis of a smoking-related injury. Douglas III,
110 So. 3d at 430
. This presumption is just as unreasonable and arbitrary as one that allows plaintiffs to
assume injury as a result of a defendant’s conduct on the basis of a collision-related injury.
7
Litigants enjoy a “due process right to fully and fairly litigate each issue in their case.”
DuPont v. Southern,
771 F.2d 874, 880
(5th Cir. 1985); see also Bell v. Burson,402 U.S. 535, 542
,91 S. Ct. 1586, 1591
, 29 L. Ed 90 (1971) (“It is a proposition which hardly seems to need
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To navigate the surprising evolution from Phase I’s nonprobative findings of
fact to Douglas III’s sweeping new tort law, I start from the beginning of the Engle
litigation and proceed painstakingly to the end. As the Table of Contents indicates,
I begin with Phase I of Engle and proceed through Walker v. R.J. Reynolds
Tobacco Co. (Walker II),
734 F.3d 1278
(11th Cir. 2013), and to the opinion the
Court issues today. Along the way, I comment on the decisions in light of relevant
legal principles. My commentaries are set aside by conspicuous section breaks or
headings, and my preemption discussion is set within its own part as it is more
legally complex than the basic principles of procedural fairness that animate the
rest of the opinion.
As I detail below, Engle-progeny opinions examining the same basic legal
issues vary drastically in both their analysis and recitation of the facts. The
Majority, for example, portray Engle III differently from the way all other courts,
including the Florida Supreme Court, see that case.8 Unfortunately, the one theme
that remains constant throughout—with a few exceptions—is that Engle-progeny
courts have rested their thumbs on the scales to the detriment of the unpopular
Engle defendants.
explication that a hearing which excludes consideration of an element essential to the decision . .
. does not meet [the requirements of the Due Process Clause].”).
8
See infra Part VI.
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I dissent for eight reasons. First, I reject the Majority’s false narrative of
Engle III. Second, in injecting their false narrative into the case, the Majority
improperly act as advocates and relieve the plaintiff of his burden of proving
preclusion. Third, the Majority fail to provide the defendants with an opportunity
to be heard on the accuracy and applicability of their narrative. Fourth, even if that
narrative were not false, Engle III, as portrayed by the Majority, would not be
entitled to full faith and credit because its key holdings were rendered without
affording the Engle defendants notice or opportunity to be heard. Fifth, and most
importantly, we cannot deprive R.J. Reynolds (“RJR”) and Philip Morris of their
property because they have never been afforded an opportunity to be heard on
whether their unreasonably dangerous product defect(s) or negligent conduct
caused Ms. Graham’s death. Sixth, we cannot give effect to a state law that
amounts to an unreasonable and arbitrary presumption of liability.9 Seventh, we
cannot give effect to a state law that operates to deprive the defendants of their
Seventh Amendment right to a jury trial on contested and material elements of the
claims against them. Eighth, the way in which the Engle-progeny litigation has
been carried out has resulted in a functional ban on cigarettes, which is preempted
by federal regulation premised on consumer choice.
9
Not only does the presumption itself raise due process concerns, the fact that it applies
only to the detriment of a small group of unpopular defendants also raises serious equal
protection concerns.
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TABLE OF CONTENTS
I. Procedural History of Engle…………………….…….……………………54
A. Certifying the Engle Class…………………………..………………54
B. Engle Trial to Proceed in Three Phases……………………..………57
1. Phase I…………………………………………………..…….58
2. Phase II……………………………………………………….67
3. Posttrial Motions……………………...………………………72
C. Appeal to the Third District Court of Appeal in Engle II…………...77
D. Petition for Review to the Florida Supreme Court in Engle III……..81
II. What “Res Judicata” Traditionally Means…………………….... . . . . . . . .89
A. Res Judicata 101: The Elements of Issue and Claim Preclusion……92
B. Res Judicata 102: Procedures to Invoke Issue and Claim
Preclusion……………………………………………………………99
III. Engle III Instructed Courts to Disregard Traditional Res Judicata Law so as
to Hold the Defendants Liable without Regard to the Phase I
Findings.......................................................................................................107
A. The U.S. District Court for the Middle District of Florida in Brown I
Rejected the Florida Supreme Court’s Interference with Its Duties as a
Recognizing Court..………...……………………………..……….109
B. In Brown II, We Upheld the District Court’s Decision as a
Recognizing Court to Apply Florida’s Traditional Issue-Preclusion
Doctrine to the Phase I Findings…..……………………………….131
C. The Florida District Courts of Appeal Rejected Brown II on the Basis
of Engle III’s Instruction……………………………..…………...136
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1. The Martin I Circuit Court Concluded That Engle III’s
Instruction Required It to Hold the Defendants Liable If the
Plaintiff Simply Proved Class Membership Irrespective of the
Phase I Findings……….…….………..……………………..137
2. The First District Court of Appeal in Martin II Agreed That
Engle III’s Instruction Required It to Hold the Defendants Liable
to all Class Members Irrespective of the Phase I Findings...…141
3. The Fourth District Court of Appeal in Jimmie Lee Brown II
Held That Engle III’s Instruction Meant Issue Preclusion but
That the Plaintiff Did Not Need to Identify a Specific Defect or
Negligent Conduct…………………………………..……….153
D. In Light of Martin II and Jimmie Lee Brown II, the Middle District of
Florida in Waggoner Ruled That the Preclusive Application of the
Phase I Findings to Hold the Defendants Liable Would Not Violate
Due Process………….……………………………………………..160
E. The Second District Court of Appeal in Douglas II Accepted Martin
II’s Reasoning, But Certified the Due Process Question to the Florida
Supreme Court…………………………………………………..…170
IV. The Florida Supreme Court in Douglas III Held That the Engle III Court
Had (1) Implicitly Determined That the Phase I Findings Were Full-Blown
Liability Determinations and (2) Implicitly Entered Judgment Against All
Defendants on Behalf of All Class Plaintiffs ……………..………….…..176
V. The Walker Panel Effectively Rewrote and then Gave Full Faith and Credit
to Douglas III Before Issuing a New Opinion That Gave Full Faith and
Credit to Engle III, Yet Left the Original Opinion’s Inapposite Reasoning
Intact... …………………………………………………………………....211
VI. The Majority Repeat and Add to the Walker Panel’s Errors………..…….234
VII. The Functional Ban on Cigarettes is Preempted by Federal Law………...247
A. Obstacle Preemption…………………………………………….....250
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B. Federal Regulation of Tobacco Consumers’ Ability to Choose…...253
C. Florida Has Imposed a Duty Not to Sell Cigarettes Contrary to
Federal Law……………………………………………………...…258
D. The Majority Misinterpret the Statutory Framework of Tobacco
Regulation………………………………………………………….264
Conclusion........………………………………………...……………………......265
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I.
PROCEDURAL HISTORY OF ENGLE
The Engle litigation epic began in 1994 when six plaintiffs filed a putative
class action in the Circuit Court for Miami-Dade County, Florida against the Engle
defendants seeking over $100 billion in both compensatory and punitive damages
for injuries allegedly caused by smoking cigarettes. Walker II,
734 F.3d at 1278
. The plaintiffs asserted an array of claims, including “strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress.” Liggett Grp. Inc. v. Engle (Engle II),853 So. 2d 434, 441
(Fla. 3d Dist. Ct. App. 2003).
A. Certifying the Engle Class
On May 5, 1994, the plaintiffs moved the Circuit Court pursuant to Florida
Rule of Civil Procedure 1.220(b)(3)10 to certify a class consisting of all smokers in
the United States and their survivors. They estimated that the class would include
“in excess of one million addicted smokers.” R.J. Reynolds Tobacco Co. v. Engle,
672 So. 2d 39, 41
(Fla. 3d Dist. Ct. App. 1996). The defendants opposed the
motion, arguing that it failed to establish the “predominance” and “superiority”
10
This rule allows certification of a class action when common issues “predominate over
any question of law or fact affecting only individual members of the class, and class
representation is superior to other available methods for the fair and efficient adjudication of the
controversy.” Fla. R. Civ. P. 1.220(b)(3).
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requirements imposed by Rule 1.220(b)(3).
Id. at 39
. They further argued that a nationwide class would be unmanageable and would unduly burden Florida’s courts and taxpayers.Id.
at 41–42. The Circuit Court disagreed. It granted the
plaintiffs’ motion and certified a nationwide class.
The defendants appealed the decision to the District Court of Appeal, Third
District.11
Id. at 39
. The Third District found that the plaintiffs’ motion satisfied the Rule 1.220(b)(3) “predominance” requirement but agreed with the defendants that a nationwide class was too large in that it “would unduly burden Florida courts and taxpayers,” and would “require the sustained attention of all . . . circuit judges in Dade County, if not the entire state.”Id. at 40, 41
. After the nationwide class
had been rejected, the plaintiffs responded with their fallback position—a
statewide class, which, they later represented, would consist of roughly 40,000
members.
Appeased, the Court affirmed the certification order on January 31, 1996,
but limited the class to “[a]ll Florida citizens and residents,” “and their survivors,
who have suffered, presently suffer or have died from diseases and medical
conditions caused by their addiction to cigarettes that contain nicotine.”
Id.
at 40–
42. In their motion for rehearing, the defendants rejected a 40,000-claimants
estimate, insisting that a statewide class would consist of an unmanageable host of
11
The Court had jurisdiction to entertain the appeal, as an interlocutory appeal, pursuant
to Fla. R. App. P. 9.130(a)(3)(C)(ii).
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hundreds of thousands of class members. Nevertheless, the Court denied their
motion on May 10, 1996, and the Florida Supreme Court denied review on October
2, 1996. R.J. Reynolds Tobacco Co. v. Engle,
682 So. 2d 1100
(Fla. 1996). Three
months later, plaintiffs’ counsel wrote thousands of Florida physicians informing
them of the class action and stating that the class included “well over one-half
million” people.
By the end of 1997, as the case proceeded through its pretrial stages, the
class had indeed grown to hundreds of thousands of claimants.12 In light of the
class size and plaintiffs’ counsel’s concession that addiction to nicotine was an
individual issue, the Engle defendants moved to decertify the class. The Court
heard the motion on January 15, 1998.13 It denied the motion with this comment:
12
On May 13, 1997, the plaintiffs represented to the court that the class included a half-
million members.
13
The defendants’ motion to decertify the class was akin to the motions tobacco
companies had been asserting in the scores of smoker class actions that had been filed in state
and federal courts across the country. The courts in most of the cases had declined to certify a
class of Engle’s magnitude, concluding that the claims were too individualized to make class-
wide adjudication viable. See, e.g., Barnes v. Am. Tobacco Co.,
161 F.3d 127, 143
(3d Cir. 1998) (affirming the denial of class certification because cigarette litigation and addiction claims involved too many disparate, individual issues to make class treatment appropriate); Castano v. Am. Tobacco Co.,84 F.3d 734
, 746–48 (5th Cir. 1996) (noting that “historically, certification of mass tort litigation cases has been disfavored” and reversing district court’s grant of class certification because of both severe manageability problems and the fact that “the most compelling rationale for finding superiority in a class action—the existence of a negative value suit—is missing in this case”); Arch v. Am. Tobacco Co.,175 F.R.D. 469, 492
(E.D.PA. 1997) (refusing to certify the class because “there are simply too many individual issues and class members to try this class efficiently. The manageability problems . . . are staggering”); Smith v. Brown & Williamson Tobacco Corp.,174 F.R.D. 90
, 98–99 (W.D. Mo. 1997) (finding that the
individualized nature of claims defeated class certification and expressing concern “that forcing
the plethora of individual issues into a class action constitutes a disservice to both potential class
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I believe changes have occurred. I also believe that the case may be
unmanageable. I do have substantial reservations regarding the class
action. However, I’m going to deny [defendants’] motion. I do
implore the Third District Court of Appeal to accept review on an
expedited basis and to take into consideration a lot of what
[defendants] have covered.
The defendants appealed the Court’s ruling to the Third District. That Court
dismissed the appeal for lack of jurisdiction, but stated that the defendants had a
right to obtain review of “the propriety of the order by plenary appeal from any
adverse final judgment.” Engle II,
853 So. 2d at 443
.
B. Engle Trial to Proceed in Three Phases
In February 1998, the Circuit Court announced that it had developed a
tentative three-phase trial plan to manage the litigation.14 Engle III,
945 So. 2d 1246, 1256
(Fla. 2006). In Phase I, the Court would conduct a jury trial of the issues common to the entire statewide class. The plan defined the issues as those “which form integral elements of the claims” the named plaintiffs were asserting members and the Defendant”); Small v. Lorillard Tobacco Co.,252 A.2d 1, 12
(N.Y. App. Div. 1998) (finding the proposed class action “unmanageable because of the individual issues of reliance, causation and damages with respect to each of the [class members]”); Reed v. Philip Morris, Inc., No. 96-5070 (D.C. Super. Aug. 18, 1997),1997 WL 538921
, at *9 (denying class
certification in light of the fact that “the individual issues raised not only predominate over the
common issues raised but overwhelm [them]” (quotation marks and citation omitted)).
14
The Court’s plan was tentative in that it made changes in the plan before and after the
trial began.
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for themselves and the members of their class.15 The jury would evaluate evidence
exclusively related to the defendants’ conduct and would determine whether such
conduct rendered the defendants answerable in punitive damages.
If the jury found that the defendants had engaged in the tortious conduct
alleged, the litigation would proceed to Phase II-A to determine whether that
conduct caused the class representatives’ injuries. In Phase II-B, the same jury
would also decide whether the entire class was entitled to punitive damages, and, if
so, make a “lump-sum” award. Engle III,
945 So. 2d at 1257
. Finally, in Phase III, new juries would try the individual class members’ claims—that the Engle defendants’ tortious conduct caused their harm.Id. at 1268
. The punitive
damages, if any, awarded in Phase II-B would be divided among the class
members who prevailed.
1. Phase I
The Phase I trial commenced on July 6, 1998. In accordance with the plan,
the Phase I jury considered evidence pertaining to the defendants’ conduct between
1953 and 1994 and to whether cigarettes manufactured during that time were
addictive and caused diseases. Over the course of the yearlong trial, the plaintiffs
15
The trial plan did not shape the issues more concretely than this. Indeed, plaintiffs’
counsel argued that the trial plan represented a judgment that the Phase I jury need not “get
involved in unnecessary complexity and fragmentation by asking a zillion specific questions, but
rather to have the jury take the common sense approach.”
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presented evidence that was sweeping in its scope, spanning decades of tobacco-
industry history. Ante at 5–8. Witnesses testified that cigarettes were addictive
and could cause a variety of diseases, including lung cancer. Douglas III,
110 So. 3d at 423
(Fla. 2013). Witnesses also described differences among cigarette brands, filtered and nonfiltered, in terms of their tar and nicotine levels and the way in which they were designed, tested, manufactured, advertised, and sold.Id.
at 423–24.
With such wide-ranging evidence and disparity among cigarettes, the
defendants registered early on their concerns that the jury would have a hard time
sorting through the evidence and connecting it to particular defendants and
particular assertions of wrongdoing. They repeatedly argued, for example, “that
[the] wide spectrum of views . . . represented by counsel . . . [make it] hard [to]
figur[e] out where we’re going as a common question.” The defendants later
summarized their concerns:
The Court subjected defendants to an artificial proceeding, not a real
trial, in which the jury was inundated with evidence of abstract
“misconduct” unconnected to any real person’s knowledge, choices,
or other circumstances—thus setting the stage for an enormous
punitive award in Phase II-B. Plaintiffs were allowed to “mix and
match” their evidence, creating a hypothetical plaintiff who was
exposed to and relied on every alleged misstatement over the course
of nearly 50 years, smoked every band of cigarette, and suffered every
asserted disease plus “emotional distress.”
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Undeterred, the Court responded that it would make sense of the scattershot
theories and evidence by means of jury instructions at the end of Phase I.
In March 1999, the plaintiffs rested, and the defendants moved the Court for
decertification of the class and a directed verdict on all counts. After eight months
of trial, the defendants pressed the Court to address the manageability problems
that had been looming since the beginning. Although the plaintiffs had, to that
point, successfully urged the Court to postpone such issues until “later,” the
defendants insisted that “later is here. Later is now.”
Given the jumble of evidence and theories that had been put forward, the
defendants argued, the jury would be unable to match theories with evidence as
required unless it was instructed with precision:
If we asked the question, Judge, can smoking cause heart disease? and
they answer that yes, so what? So what? The question is going to be,
did it cause this class member’s heart disease? That’s got to be the
only significant question. It’s a “so what?”
Take the easy one, the one that you could apply most
meaningfully: Product defect. There is one, and we ought to be able
to get a jury to give us something on product defect. If they decide in
favor of the plaintiff, we can take that and we can transport it into
Phase II and Phase III.
Well, when you think about that, how are you going to do that,
because we have no actual plaintiff in the common issue part of this
trial, all kinds of evidence has been introduced from which a jury
could conceivably find that there’s a defect in the product?
They might find that it has something to do with a particular
filter construction; they might find that it’s products with a certain
amount of nicotine; they could say that it’s additives, that when
certain additives were put into the cigarette; they could say that it has
to do with low tar, the fact that people who smoke low-tar cigarettes
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get a different tar level than the FTC machines, and that that’s a
defect.
But how are we ever going to know? And this is the easy one.
Forget the fraud, misrepresentations. But how are we ever going to
know on what basis the jury found the defect? Are they going to tell
us on what basis they found the defect? And if we don’t know on
what basis they found the defect, how are we going to apply that to
people in subsequent phases?
If the defect is in connection with low tar, then people who
smoked high-tar cigarettes their entire lives . . . wouldn’t have a claim
[because] there would be no proximate cause with regard to their
particular allegations. But we won’t know that.
And it’s uniquely caused by the nature of this trial. If this was a
single smoker, we’d know the particular circumstances of that
smoker. We'd know what evidence was relevant, what evidence
wasn’t relevant, and we would be able to look at and apply it.
Such reasoning undergirded the defendants’ motions for directed verdict as
well. In those motions, the defendants argued that the plaintiffs had spread
themselves too thin by sporadically referencing, while never fully substantiating,
numerous theories of liability. The defendants worried that these shotgun-style
allegations would unfairly disadvantage them if their motions were denied:
You take all the stuff that you think sounds bad. You say it all real
fast. You say: We had 57 witnesses, and all this. And then you say:
Therefore, we have a case. We have law that requires certain
evidence. We have to know what to defend against, and we all have
to know what to put on that verdict form.
The plaintiffs did not confront the merits of such arguments directly,
countering instead with two process-oriented arguments. First, they argued that the
defendants failed to satisfy the directed verdict standard because “the burden of the
defendants is an almost impossible burden. In most instances because the
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defendants have to convince the Court that there is not minimal but zero, zero
evidence and zero inferences from the evidence that would support our claims.”
Second, the plaintiffs argued that the Court should defer its ruling because the law
demands “that in those rare instances where the Court really doesn’t feel there’s
enough to go to a jury, the Court should wait,” let the jury render a verdict, and
then rule, so the appellate court can reinstate the jury verdict if it disagrees with the
trial judge.
Persuaded by the plaintiffs, the Court reserved ruling on the motion,16 and
the defendants went on to present their case.17 On June 9, 1999, the parties rested,
and a charge conference with counsel followed. The plaintiffs conceded that there
were “many hundreds and hundreds” of things at issue for each claim. To account
for the many theories presented, and, concomitantly, to provide the jury with the
widest possible range of bases upon which to premise tortious-conduct findings,
the plaintiffs proposed that the jury be instructed on eight different theories of
negligence and five theories of strict liability. The defendants did not take issue
with instructing the jury on an array of tortious-conduct theories. They did object,
however, to the plaintiffs’ proposed verdict-form questions, which were generic
rather than disaggregated and specific. They warned that a verdict form that failed
16
See Fla. R. Civ. P. 1.480(a)–(b).
17
With one exception: the Court did grant the defendants’ motions for directed verdict
with respect to certain diseases and medical conditions.
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to specify the particular theories on which the jury based its findings could not be
“meaningful[ly] imported into Phase II and Phase III”:
If the jury in this case were to simply answer the question, “Have one
or more of the defendants, during whatever time period, manufactured
a cigarette that is defective and unreasonably dangerous?” and the
answer to that is “Yes,” what in the world are we going to do with that
in an individual case? We won’t know what the defect was. We
won’t know when or during what period of time, what brand or brand
style. What in the world are we going to do with that finding?18
Because, the defendants argued, a generic verdict form would make it “completely
impossible to import intelligently and rationally the findings from the verdict form
in Phase I to any particular plaintiff in Phase II and III,” relying on such a verdict
18
The defendants were pointing out that the class plaintiffs would be unable to prove, as
relevant tort law requires, that a particular defect caused harm if they were unable to even
identify the product features the jury deemed defective and unreasonably dangerous. Similarly,
plaintiffs in Phase III trials would be unable to prove that the defendants’ negligent conduct
caused harm if they could not identify the conduct the Phase I jury deemed negligent. In other
words, the Phase I findings would be utterly useless to plaintiffs if they could not rely on those
findings to identify the defendants’ product defect(s) and tortious conduct in the Phase III
causation trials.
The problems associated with generic findings extended beyond the negligence and
strict-liability claims. For example, regarding the claims of fraud, the defendants argued,
If you merely ask this jury whether the defendants made a misstatement of a
material fact, and they are not required to identify what it is, when you go into the
Phase II and Phase III trials of the individual smokers’ claims, that finding will
have no meaning. So we believe that, for it to have meaning going forward, it
needs specificity.
The trial judge did not heed the defendants’ warnings. As a result, the Phase I
findings were, as the Florida Supreme Court conceded seven years later, “useless.”
Douglas III,
110 So. 3d at 433
. To remedy this problem, the Florida Supreme Court
sanctioned a conclusive presumption that eliminated the class members’ burden of
proving that a defendant’s unreasonably dangerous product defect or tortious conduct
caused their harm. See supra note 6 and accompanying text.
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form to preclude defendants’ defenses in later phases would result in a “due
process violation under the U.S. Constitution as well as the Florida Constitution.”
The defendants accordingly requested a verdict form that would elicit
specific findings that class members could later allege, in a meaningful way and in
accordance with due process, in their Phase III complaints. See Walker II,
734 F.3d at 1282
(The defendants “requested that the trial court submit to the jury a . . .
detailed verdict form that would . . . ask[] the jury [among other things] to identify
the brands of cigarettes that were defective.”). Plaintiffs repeatedly opposed such
requests, arguing that specificity burnished a slippery slope to complexity and
delay: “[O]nce you start [being more specific], then you’ve got to include a lot
more . . . . And that becomes a 20, 25-page verdict form for the jury to complete,
yes, no, and be here for a long time.” The Court sided with the plaintiffs.
Hence, the first two questions on the finalized verdict form made no
distinction between cigarette brands and did not even refer to the defendants’
conduct.19 Instead, the questions asked the jury to determine whether cigarettes
could cause certain diseases and addiction. The remaining verdict-form questions
charged the jury to determine whether the defendants had engaged in tortious
conduct, but did not require the jury to reveal the theory or theories on which it
19
The verdict form is Appendix A to this dissent. The answers to Questions No. 3 (strict
liability) and No. 8 (negligence) are the Phase I findings underpinning the judgment in this case
and are directly at issue in this appeal.
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premised its tortious-conduct findings.20 Thus, as the defendants had feared, the
verdict form did not prompt the jury to indicate whether it had accepted, for
example, just one or all eight instructed theories of negligence.21 Nor did it prompt
the jury to reveal which of the five instructed theories of strict liability22 it accepted
or which particular brands of cigarettes or cigarette features it identified as
defective and unreasonably dangerous. With respect to strict liability and
negligence—the two claims at issue in this appeal—the form simply asked the jury
20
Questions No. 6 (breach of implied warranty) and No. 7 (breach of express warranty)
deal with contract law rather than tort law. Nevertheless, for convenience, I refer to the Phase I
findings as “tortious-conduct findings” throughout this opinion.
21
This appeal involves negligence and strict-liability claims. With respect to negligent
conduct, the jury was asked to determine
whether one or more of the defendants were negligent in manufacturing,
designing, marketing, selling and distributing cigarettes which defendants knew
or should have known would cause serious and fatal diseases, including lung
cancer, or dependence-producing substances; in negligently not testing tobacco
and commercial cigarettes to confirm that smoking causes human disease; in
failing to design and produce a reasonably safe cigarette with lower nicotine
levels; in negligently measuring and . . . understating nicotine and tar levels in
low-tar cigarettes; and in failing to warn smokers of the dangers of smoking and
the addictiveness or dependence-producing effects of cigarettes prior to July 1 of
1969.
The jury was also instructed as follows:
The issue for determination on the negligence claims of the plaintiffs against each
of the tobacco companies is whether one or more of the tobacco companies were
negligent in designing, manufacturing, testing, or marketing of cigarettes.
Another issue for your determination is whether one or more of the defendant
tobacco companies were negligent prior to July l, 1969 in failing to warn smokers
of the health risks of smoking or the addictiveness of smoking.
22
As for strict liability, the Court initially instructed the jury that “the issues are whether
one or more of the defendants designed, manufactured and marketed cigarettes which were
defective and unreasonably dangerous to smokers.” Later on, it instructed the jury that the “issue
for [its] consideration is whether cigarettes sold by these tobacco companies were defective
when they left the possession of the companies.”
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to respond “yes” or “no” to whether “one or more of the Defendant Tobacco
Companies” (1) “place[d] cigarettes on the market that were defective and
unreasonably dangerous”23 and (2) “failed to exercise the degree of care which a
reasonable cigarette manufacturer would exercise under like circumstances.”24
The defendants objected to both questions, arguing that “[t]he [defect]
question does not require specificity as to the product (brand or brand style), the
defect, or the time of occurrence, which renders it useless for application to
individual plaintiffs in other Phases of this case,” and “the [negligence] question
does not require specificity as to the product (brand and brand style), the alleged
negligent act, and the date of the act, which renders it useless for application to
individual plaintiffs in other Phases of this case.” They objected to verdict-form
questions related to other tortious-conduct claims as well, insisting that the answers
to such questions would be useless in Phase III because a different jury would be
unable to discern what conduct the Phase I jury deemed tortious, making it
impossible to prove that such conduct caused harm.
The Court overruled the defendants’ objections, and the jury, in the verdicts
they returned on July 7, 1999, answered “yes” to every question. 25 Walker II, 734
23
The time periods for strict liability were “before July 1, 1974,” “after July 1, 1974,” or
both.
24
The time periods for negligence were “before July 1, 1969,” “after July 1, 1968,” or
both.
25
On the whole, the jury found:
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F.3d at 1282. The defendants moved the Court to set aside the verdicts in
accordance with their motions for directed verdict and alternatively for a new
(1) that smoking cigarettes caused twenty of twenty-three listed diseases or
medical conditions; (2) that cigarettes containing nicotine were addictive or
dependence producing; (3) that the defendants placed cigarettes on the market
that were defective and unreasonably dangerous both before and after July 1,
1974; (4) that the defendants made a false statement of a material fact, either
knowing the statement was false or misleading, or being without knowledge
as to its truth or falsity, with the intention of misleading smokers both before
and after May 5, 1982; (4a) that the defendants concealed or omitted material
information, not otherwise known or available, knowing the material was false
and misleading, or failed to disclose a material fact concerning or proving the
health effects and/or addictive nature of smoking cigarettes both before and
after May 5, 1982; (5) that the defendants entered into an agreement to
misrepresent information relating to the health effects of cigarette smoking, or
the addictive nature of smoking cigarettes, with the intention that smokers and
members of the public rely to their detriment; (5a) that the defendants entered
into an agreement to conceal or omit information regarding the health effects
of cigarette smoking, or the addictive nature of smoking cigarettes, with the
intention that smokers and members of the public rely to their detriment; (6)
that the defendants sold or supplied cigarettes that were defective in that they
were not reasonably fit for the uses intended before July 1, 1969 and up to and
after July 1, 1974; (7) that the defendants sold or supplied cigarettes that, at
the time of sale or supply, did not conform to representations of fact made by
the defendants either orally or in writing both before and after July 1, 1974;
(8) that the defendants failed to exercise the degree of care that a reasonable
cigarette manufacturer would exercise under like circumstances both before
and after July 1, 1969; (9) that the defendants engaged in extreme and
outrageous conduct or with reckless disregard relating to cigarettes sold to
Florida smokers with the intent to inflict severe emotional distress; and (10)
that the defendants' conduct rose to a level that would permit a potential award
or entitlement to punitive damages.
Brown v. R.J. Reynolds Tobacco Co. (Brown II),
611 F.3d 1324, 1327
(11th Cir. 2010) (citation
omitted).
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trial.26 They also moved the Court to decertify the class. On July 29th, the Court
summarily denied these motions.
2. Phase II
The trial of Phase II-A—the cases of three class representatives, Mary
Farnan, Frank Amodeo, and Angie Della Vecchia,27 against six tobacco
companies28—began on November 1, 1999. All alleged that they were addicted to
cigarettes, smoked a variety of the companies’ brands, both filtered and
nonfiltered,29 and in time contracted cancer. All sought damages against each
defendant on theories of strict liability and negligence.30 Because the Phase I trial
did not involve the class representatives’ claims (or those of any class members),
the Phase I jury was not instructed to determine whether any of the brands these
plaintiffs actually smoked were defective, unreasonably dangerous, or negligently
26
See Fla. R. Civ. P. 1.480(c).
27
Angie Della Vecchia was deceased. Her claims were brought by her personal
representative, Ralph Della Vecchia. For convenience, I refer to Ms. Della Vecchia as the class
representative plaintiff rather than Mr. Della Vecchia.
28
The companies were Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard,
Liggett Group and Brook Group Holding.
29
The cigarettes included the following brands: Camels, Salem, Winston, Winston
Lights, Marlboro, Viceroy, Raleighs, Tareyton, Carlton, Pall Mall, Kent, Lucky Strike, Virginia
Slims, Benson & Hedges, Cambridge Lights, and Parliament.
30
In addition, the plaintiffs sought damages based on fraud and misrepresentation,
conspiracy to misrepresent and commit fraud, breach of implied warranty, intentional infliction
of emotional distress, and breach of express warranty. I limit my discussion, for the most part, to
the claims of strict liability and negligence because those are the claims pertinent to this appeal.
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produced.31 In Phase I, the jury had determined “issues . . . concerning the conduct
of the tobacco industry.” In Phase II-A, the same jury32 was tasked with deciding
inter alia whether the tortious conduct it identified in Phase I caused the class
representatives’ injuries.
The jury had the Phase I trial record before it, and the three plaintiffs
augmented that record by alleging the various brands of cigarettes they smoked,
their inability to stop smoking, and that cigarette smoking caused the cancer they
contracted.33 After they rested their cases, the defendants moved the Court for
directed verdicts on the ground that the plaintiffs failed to prove all elements of
their claims, including whether the cigarettes the plaintiffs smoked were defective,
unreasonably dangerous, or negligently produced. Evidence that cigarettes could
31
The three class representatives were not class representatives when the Phase I trial
began. Along the way, they were substituted for the original class representatives, but as far as I
can tell from the record, the complaint was not amended to allege, among other things, the
brands of cigarettes they smoked. The brands they smoked were disclosed during the
presentation of the evidence in Phase II-A.
32
Phase II-A was different from other progeny cases in this regard. The Phase II-A jury
was the same as the Phase I jury. The Phase II-A jury, therefore, knew the particular defects and
tortious conduct it had in mind when it answered “yes” to the Phase I verdict-form questions.
33
Fifteen witnesses testified on behalf of Mary Farnan, eighteen testified on behalf of
Frank Amodeo, and sixteen testified on behalf of Angie Della Vecchia. The testimony and
evidence focused on their smoking and medical histories; awareness of the health risks of
smoking; exposure to and purported reliance on statements the tobacco companies made; ability
to quit smoking; the cause of the cancer; and various other individual-specific issues, including
comparative negligence.
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cause disease, the defendants argued, did not establish that their tortious conduct
caused the plaintiffs’ diseases.
The Court deferred its ruling on the motion until after the jury rendered its
verdicts on the plaintiffs’ claims. In the Court’s view, the jury’s answers to the
Phase I verdict-form questions, coupled with the plaintiffs’ testimony that they
could not stop smoking and their experts’ testimony that their smoking caused their
cancer, were all the plaintiffs needed to make out a case for the jury under the
theories of strict liability and negligence they were advancing.
The Court’s instructions to the jury reflected this view.34 The Court began
by explaining that the issues the jury decided in Phase I were not being litigated
anew. What it had to decide now was whether the defendants’ “conduct” on which
it based its Phase I verdict was the “legal cause of injury to Mary Farnan, Frank
Amodeo and Angie Della Vecchia.”35 Turning to the verdict form it would be
submitting to the jury, the Court informed the jury of the issues it had to decide by
answering “yes” or “no” to a series of questions, each prefaced with a finding the
jury made in Phase I.
34
Before charging the jury, the Court explained to counsel that “[t]his is not two separate
trials, although a lot of people thought it was. It’s really a continuation of one trial, a bifurcated
trial. And although we had different issue in trial one and different exhibits in evidence, it is part
of the same trial. And one relates to the other.”
35
The Court stated that a “defective and unreasonably dangerous product” or negligence
“is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence
produces or contributes substantially to producing such loss, injury or damage, so that it can
reasonably be said that but for the [defective product or negligence], the loss injury or damage
would not have occurred.”
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The first question was prefaced with this statement: “In your [Phase I
verdict], you found that smoking cigarettes causes . . . lung cancer and laryngeal
(throat) cancer.” The question that followed asked, “[W]as smoking cigarettes a
legal cause” of the plaintiff’s cancer? If the jury answered “yes,” it would proceed
to the question pertaining to the claims of strict liability. The preface read, “You
found in your [Phase I verdict] that each of the Defendant Tobacco Companies
placed cigarettes on the market that were defective and unreasonably dangerous,
both before and after July 1 of 1974 (except for Brooke, whose liability is limited
to after July, 1974).” That preface was followed by a question: “Were defective
and unreasonably dangerous cigarettes placed on the market by one or more of the
Defendant tobacco companies a legal cause of [the plaintiff’s cancer]”?
In addition to answering this question regarding strict liability, the jury had
to answer the question pertaining to the claims of negligence. The preface to the
question was, “[I]n your [Phase I verdict], you found that all of the Defendant
Tobacco Companies failed to exercise the degree of care which a reasonable
cigarette manufacturer would exercise under like circumstances, both before and
after July 1 of 1969 (except for Brooke whose liability is limited to after July 1,
1969).” The corresponding question was, “As to each of the Defendants . . . please
state whether that Defendant’s negligence was a legal cause of [plaintiff’s cancer].”
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The Court sent the case to the jury on April 5, 2000. The jury returned its
verdicts on April 7, 2000, responding “yes” to each of the questions and therefore,
pursuant to the Court’s instructions, proceeded to determine the amount of the
plaintiffs’ compensatory damages, which were offset by comparative fault. The
total award was $12.7 million. Engle II,
853 So. 2d at 441
.
The trial of Phase II-B began on May 22, 2000. In Phase I, the jury
determined that the defendants’ conduct warranted the imposition of punitive
damages,36 so the Phase II-B trial focused on the monetary sum that should be
imposed. On July 14, 2000, the jury fixed that sum at $145 billion to be awarded
incrementally to class members who prevailed in subsequent Phase III lawsuits.
Id. at 1257.
3. Posttrial Motions
At the conclusion of Phase II-B, the defendants moved the Court for the
entry of judgment (as to Phases II-A and II-B) in accordance with their motion for
directed verdict.37 They also moved the Court to decertify the plaintiffs’ class.38
36
In Engle II, the Court stated that the Phase I “jury . . . made a general finding that the
defendants had engaged in unspecified conduct that ‘rose to a level that would permit a potential
award or entitlement to punitive damages.’”
853 So. 2d at 443
.
37
The motion adopted and incorporated by reference “all of the grounds set forth” in the
defendants’ July 19, 1999, motion made at the conclusion of Phase I. This motion, like most of
the defendants’ motions, was filed jointly. I therefore treat each of the defendants’ motions as a
joint motion unless otherwise indicated.
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The plaintiffs filed no opposition to the defendants’ motions. The Court took the
motions under advisement and, without entertaining oral argument, denied them on
November 6, 2000, in an Amended Final Judgment and Amended Omnibus Order
(“Omnibus Order”).39
In denying the defendants’ motion for the entry of judgment in accordance
with their motion for directed verdict, the Omnibus Order addressed the plaintiffs’
claims separately40 and concluded that each claim had substantial evidentiary
support.41
38
The defendants moved the Court to decertify the plaintiff class following the jury’s
verdicts in Phase II-A and following its verdict in Phase II-B. In these motions, they argued that
“the [Phase I] verdict . . . does not advance the claim of any individual class member. The Court
is now left with potentially hundreds of thousands of class member trials involving all the
individual issues that courts around the country have held preclude class treatment.”
39
The Omnibus Order disposed of forty-six motions the defendants had filed during the
course of the litigation. Forty-four motions were denied and two were granted. “First, the trial
court granted Tobacco’s motion for directed verdict on a statute of limitations basis with regard
to named plaintiff Frank Amodeo on the counts based on strict liability, implied warranty,
express warranty, negligence, and intentional infliction of emotional distress.” Engle III,
945 So. 2d at 1257
. “Second, the court granted Tobacco’s motion for directed verdict with regard to count seven of the complaint, in which the Engle Class sought equitable relief, upon the basis that the count had previously been dismissed by the court.”Id.
The Court entered the Omnibus Order after withdrawing a Final Judgement and Omnibus
Order it entered on November 3, 2000. Between November 3rd and 7th, the Court made several
minor alterations to November 3rd order. The Court “reserve[d] jurisdiction . . . to enter any
further Orders and conduct further proceedings to the Mandate of the Third District Court of
Appeal of Florida.”
40
The Omnibus Order referred to the claims that were pursued during the trial of Phase
I: Count I, Strict Liability; Count II, Fraud and Misrepresentation; Count III, Conspiracy to
Misrepresent and Commit Fraud; Count IV, Breach of Implied Warranty of Merchantability and
Fitness; Count V, Intentional Infliction of Emotional Distress; Count VI, Negligence; Count VII,
Equitable Relief; and Count VII, Breach of Express Warranty. At some point prior to the
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The evidence introduced during the trial of Phase II-A was sufficient to
prove that the plaintiffs had become addicted to the defendants’ cigarettes and that
smoking those cigarettes caused the plaintiffs’ disease, cancer. That was all the
plaintiffs had to show to prevail on their claims of strict liability, the Omnibus
Order indicated, because the evidence introduced during the trial of Phase I
established that both before and after July 1, 1974, the defendants had “placed
cigarettes on the market that were defective and unreasonably dangerous.”42 The
conclusion of the Phase II proceedings, the Court dismissed Count VII “under the heading
Medical Monitoring.”
41
It was not until it entered the Omnibus Order that the Court passed on the question of
whether the Phase I findings had sufficient evidentiary support to withstand a motion for directed
verdict.
42
Addressing Count I, strict liability, the Court said,
There was more than sufficient evidence at trial to satisfy the legal requirements
of this Count and to support the jury verdict that cigarettes manufactured and
placed on the market by the defendants were defective in many ways including
the fact that the cigarettes contained many carcinogens, nitrosamines, and other
deleterious compounds such as carbon monoxide. . . . The evidence more than
sufficiently proved that nicotine is an addictive substance which when combined
with other deleterious properties, made the cigarette unreasonably dangerous.
The evidence also showed some cigarettes were manufactured with the breathing
air holes in the filter being too close to the lips so that they were covered by the
smoker thereby increasing the amount of the deleterious effect of smoking the
cigarette. There was also evidence at trial that some filters being test marketed
utilize glass fibers that could produce disease and deleterious effects if inhaled by
a smoker. In addition, there was adequate evidence that all three of the class
members whose claims were tried in Phase II–A smoked one or more brands
manufactured by one of more of the defendants.
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plaintiffs also prevailed on their claims of negligence because, the Omnibus Order
indicated, the defendants “failed to exercise the degree of care which a reasonable
cigarette manufacturer would exercise under like circumstances.”43 The plaintiffs
were relieved of the burden of proving that specific defects in the defendants’
cigarettes or specific tortious conduct caused their injuries. Instead, plaintiffs were
required to prove only that smoking the defendants’ cigarettes caused their
injuries.
In sum, the Court held that the evidence was sufficient to support the jury’s finding that
“the Defendant Tobacco Companies place[d] cigarettes on the market that were defective and
unreasonably dangerous” during certain date ranges.
43
Addressing Count VI, negligence, the Court said,
The verdict of the jury on the issue of Negligence is well supported by the
evidence. The elements of negligence have certainly been sufficiently proven by
the testimony in this case in that any reasonable person or entity, armed with the
information the defendants had, should have done that which a reasonable person
would have done under like circumstances, or should not have done what a
reasonable person would not do under like circumstances[]. It is obvious that a
reasonable person or entity would not have allowed a condition to exist that he or
it knew would injure someone, without taking appropriate measures to prevent it.
The defendants according to the testimony, well knew from their own research,
that cigarettes were harmful to health and were carcinogenic and addictive. By
allowing the sale and distribution of said product under those circumstances
without taking reasonable measures to prevent injury, constitutes, in this Courts
[sic] opinion, and in the opinion of the jury as it turns out, [] negligence.
In other words, the Court held that the evidence was sufficient to support the jury’s
finding that “the Defendant Tobacco Companies failed to exercise the degree of care which a
reasonable cigarette manufactuer would exercise under like circumstances” during certain date
ranges.
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The Court had previously forecast that it would ease the plaintiffs’ burden of
proof in this way in a colloquy with Philip Morris’ counsel during closing
arguments in Phase II-A. The Court said,
Okay. Number One, cigarettes cause a disease. We know there is a
causal effect between cigarettes.
If you put the product out and people smoke it, and they get
disease, that is a causal effect. The jury has already made that
determination.
The question is whether you did it. You did. The jury found
you put these things on the market, somebody smoked it, and they got
sick. That is strict liability. You are liable. That’s what the jury
indicates from Phase I.
The Court upheld the jury’s punitive-damages award because “[i]n Phase I
of the trial, the jury, having heard the testimony concerning the behavior and
conduct of the defendants, decided that punitive damages were indeed appropriate
in this case.”44 The Court found that the $145 billion award was not unreasonable
because “the amount of the jury verdict is within the parameters of the evidence at
trial—within the limits of the highs and lows, albeit on the high side, but when the
enormity of the facts and issues of this case are considered, the award cannot be
said to be unreasonable.”
The Court made one further reference to Phase I. “[I]t should be noted that
the jury in . . . Phase I . . . found each of the defendants Guilty as to all counts with
44
The Court denied each of the defendants’ challenges to the punitive-damages award in
a lengthy discussion. It also denied their motion to decertify the plaintiff class.
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the exception of count 7 for Equitable relief which the court dismissed previously
under the plaintiffs request for Medical Monitoring.”
C. Appeal to the Third District Court of Appeal in Engle II
The defendants appealed the Omnibus Order to the Third District Court of
Appeal. They argued that plaintiffs’ counsel’s race-based incendiary remarks
throughout trial merited the judgment’s complete reversal. They argued
alternatively that the punitive damages should be set aside as foreclosed by Florida
precedent and that the class should be decertified because the Phase I findings were
useless. The findings of tobacco-company misconduct were “generalized”; hence,
the defendants contended, the “Phase III juries [would be] unable to determine
whether the conduct found to be wrongful in Phase I was the legal cause of any
Phase III claimant’s injury.”45 Thus, the defendants warned, they would be faced
with “an infinite re-examination of issues by different juries and the consequent
risk of inconsistent verdicts, in violation of [their] constitutional right to have
one—and only one—jury decide the same or interrelated issues.”
On May 21, 2003, the Third District, persuaded by the defendants’
arguments, held that “the entire judgment must be reversed and the class
decertified.” Engle II,
853 So. 2d at 470
. The Court began its opinion by noting
45
Although the Phase II-A jury was the same as the Phase I jury, the trial plan dictated
that the Phase III juries, in individual class-member cases, would decide the factual issues.
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that “[a]lthough the emotional appeal of the class representatives’ claims is
compelling, our job as appellate judges is not to be swayed by emotion where to do
so results in violating established legal principles.”
Id. at 442
. The Court found that the plaintiffs had “incit[ed] juror prejudice against an unpopular industry,” concocted ostensibly “common” issues only by “creat[ing] a composite plaintiff who smoked every single brand of cigarettes, saw every single advertisement, read every single piece of paper that the tobacco industries ever created or distributed, and knew about every single allegedly fraudulent act.”Id.
at 467 n.48. Doing so enabled the class “to try fifty years of alleged misconduct that they never would have been able to introduce in an individual trial, which was untethered to any individual plaintiff.”Id.
Making matters worse moving forward, “there were no specific findings as to any act by any defendant at any period of time.”Id.
The
Court acknowledged what the defendants had been arguing—the Phase I findings
were useless.
The Court concluded that “Florida’s class action rules, substantive tort law,
and state and federal guarantees of due process and a fair trial, [all] require[d] class
decertification.”
Id. at 450
. In reaching this conclusion, the Court noted that “virtually all courts that have addressed the issue have concluded that certification of smokers’ cases is unworkable and improper.”Id. at 444
(collecting cases). This
is in large part because “issues of liability, affirmative defenses, and damages,
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outweigh[] any ‘common issues’ in th[e] case.”
Id. at 445
. The impropriety of class certification was especially clear in this particular case, the Court explained, because “the jury did not determine whether defendants were liable to anyone.”Id. at 450
(emphasis in original). And, “[a]s evidenced by the proceedings in Phase 2, each claimant will have to prove that his or her illness not only was caused by smoking, but was also proximately caused by defendants’ alleged misconduct.”Id. at 446
(emphasis added). Because “each class member had unique and different experiences that will require the litigation of substantially separate issues, class representation is not ‘superior’ to individual suits.”Id.
at 446–47.
In addition to decertifying the class, the Court vacated the punitive-damages
award on a host of independent grounds. First, the award violated “well-
established Florida precedent” by
a) improperly requiring the defendants to pay punitive damages for
theoretical injuries to hundreds of thousands of class members,
without a determination that defendants are liable for such injuries;
b) precluding the constitutionally required comparison of punitive
damages and compensatory damages; and c) eliminating the jury’s
discretion to assess punitive damages based upon the individual
class members' varying circumstances.
Id. at 450
. Second, the size of the punitive-damages award was excessive under state and federal law, noting that “the $145 billion verdict is roughly 18 times the defendants’ proven net worth.” Id.at 457. Third, as explained in Young v. Miami Beach Improvement Co.,46 So. 2d 26
(Fla. 1950), the punitive award was
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precluded by settlement agreements between the tobacco companies and the states,
“which expressly included claims for punitive damages.” Engle II, 845 So. 2d at
467–70.
Lastly, the Court held that “Plaintiffs’ counsel’s improper race-based
appeals for nullification caused irreparable prejudice and require reversal.” Id. at
458. “The trial was book-ended with prejudicial attorney misconduct which
incited the jury to disregard the law because the defendants are tobacco
companies.” Id. The Court explained that “Plaintiffs’ counsel began making
racially-charged arguments on the first day of trial,” and perpetuated through
closing. Id. Specifically,
Plaintiffs’ counsel . . . explicitly tied . . . racial references to appeals
for jury nullification of the law during closing argument. He set the
stage by telling the jury, “And let’s tell the truth about the law, before
we all get teary-eyed about the law. Historically, the law has been
used as an instrument of oppression and exploitation.” Plaintiff’s
counsel then juxtaposed defendants’ conduct with genocide and
slavery. Although the trial court sustained a defense objection,
plaintiffs’ counsel proceeded to tell the jury that, like slavery and the
Holocaust, there was just one “side” to whether the defendants should
continue to sell cigarettes . . . . [C]ounsel repeatedly urged the jury to
fight what he called “unjust laws” citing the civil disobedience of
Martin Luther King and Rosa Parks.
Id. at 459–60. After citing many further examples of prejudicial conduct, the
Court explained that “the improper comments of plaintiffs’ counsel further
deprived the defendants of due process and a fair trial, thus additionally requiring
reversal.” Id. at 466.
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The Court ultimately summarized its holding thus: “The fate of an entire
industry and of close to a million Florida residents, cannot rest upon such a
fundamentally unfair proceeding.” Id. at 470.
D. Petition for Review to the Florida Supreme Court in Engle III
The plaintiffs petitioned the Florida Supreme Court for review under Article
V, Section 3(b)(3) of the Florida Constitution, which grants the Court jurisdiction
to “review any decision of a district court of appeal that . . . expressly and directly
conflicts with a decision . . . of the supreme court on the same question of law.”
The defendants opposed the Court’s exercise of such jurisdiction by arguing that
Engle II did not in fact come in “express and direct conflict” with any such
precedent. The Supreme Court rejected the defendants’ arguments and accepted
jurisdiction based on a conflict between Engle II and its decision in Young v.
Miami Beach Improvement Co. as to whether a settlement agreement between the
state and the defendants would bind private citizens in their punitive-damages
claims. Engle III,
945 So. 2d at 1254, 1260
. Following the Supreme Court’s
acceptance of jurisdiction, the parties jointly briefed the issues the Third District
resolved in reaching its decision in Engle II.46
46
These issues were whether it was error for the Third District to reverse the Circuit
Court’s final judgment based on the plaintiffs’ counsel’s conduct or, alternatively, reverse the
judgments for the three class representatives and the punitive-damages award, and decertify the
class.
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On July 6, 2006, a divided Supreme Court issued its decision.47 Resolving
the issues the parties had briefed, the Court quashed the Third District’s judgment
as to each of its holdings except for its rejection of the punitive-damages award.48
Engle III, 945 So. 2d at 1254–56. However, in its rejection of the holdings, the
Court actually echoed many of the Third District’s criticisms regarding the
unmanageably expansive class action litigation.
Id.
at 1267–71. Most notably, the Court “agree[d] with the Third District that problems with the three-phase trial plan” required the class to be decertified.Id.
at 1267–68.
To the Florida Supreme Court, however, decertification would not serve as
an acceptable outcome for the class members who had been standing idly by while
their attorneys tried Phases I and II of their case. To thus accommodate such class
members, the Supreme Court sua sponte fashioned a “pragmatic solution” in which
it preserved some of the Phase I findings for use in the class members’ cases to
establish tobacco-company liability.
Id. at 1269
.
In addition to these issues, the defendants’ briefs argued issues the Third District had not
addressed: whether the Circuit Court erred in allowing the plaintiffs to prosecute claims
preempted by federal law and abused its discretion in failing to instruct the jury that it could not
punish lawful conduct.
47
This decision, Engle v. Liggett Grp., No. SC03-1856,
2006 WL 1843363
(Fla. 2006), was later withdrawn and replaced with a new, but mostly identical, decision, Engle III,945 So. 2d 1246
.
48
With Justice Cantero recused, the Court was divided 4-2 on all issues except the
reversal of punitive damages. On that issue, two of the justices from the majority joined the two
dissenters. Engle III, 945 So. 2d at 1254–56.
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The Court implemented its pragmatic solution in two steps. First, it
certified, pursuant to Florida Rule of Civil Procedure 1.220(d)(4)(A),49 a class
limited to liability issues; that is, limited to eight of the ten Phase I findings,50 the
49
The rule provides that “a claim or defense may be brought or maintained on behalf of a
class concerning particular issues.” Fla. R. Civ. P. 1.220(d)(4)(A).
50
According to the Supreme Court,
The Phase I findings were: (1) that cigarettes cause some of the diseases at issue;
(2) that nicotine is addictive; (3) that the defendants placed cigarettes on the
market that were defective and unreasonably dangerous; (4) that the defendants
made a false or misleading statement of material fact with the intention of
misleading smokers; (4)(a) that the defendants 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 or both; (5) that all of the defendants
agreed to misrepresent information relating to the health effects of cigarettes or
the addictive nature of cigarettes with the intention that smokers and the public
would rely on this information to their detriment; (5)(a) that the defendants 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; (6) that all of the defendants sold or supplied
cigarettes that were defective; (7) that all of the defendants sold or supplied
cigarettes that at the time of the sale or supply did not conform to representations
of fact made by the defendants; (8) that all of the defendants were negligent; (9)
that all of the defendants engaged in extreme and outrageous conduct or with
reckless disregard relating to cigarettes sold or supplied to Florida smokers with
the intent to inflict severe emotional distress; and (10) that all of the defendants'
conduct rose to a level that would permit an award of punitive damages.
Engle III,
945 So. 2d at 1257
n.4. “A majority of Court” held that findings (1), (2), (3), 4(a), 5(a), (6), (7), and (8) “in favor of the Engle class can stand.”Id.
at 1254–55.
In listing the findings, the Court omitted to state when, according to some of the findings,
the acts they depict occurred. The acts in findings (3), (6) and (7) occurred both before and after
July 1, 1974; those in findings (4) and (4)(a) before and after May 5, 1982, and those in (8)
before and after July 1, 1969. In applying findings (3), (4)(a), and (6) through (8), the courts in
the cases the class members brought cited and relied on the findings as listed in this footnote,
without regard to the designated time frames. That is, they applied those findings as if the
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findings on “Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict
liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-concealment), 6
(breach of implied warranty), 7 (breach of express warranty), and 8
(negligence).”51 Engle III,
945 So. 2d at 1255, 1268
. It labeled these findings “common core findings.”Id. at 1269
. The Court did not certify the issue of legal causation—whether the Engle defendants’ tortious conduct caused the class members’ harm—noting that it was “highly individualized and [did] not lend [itself] to class action treatment.”Id. at 1254
. The Court acknowledged that “no Florida cases address whether it is appropriate under rule 1.220(d)(4)(A) to certify class treatment for only limited liability issues.”Id. at 1268
. It nevertheless certified the issues class because “several decisions by federal appellate courts applying a similar provision in the Federal Rules of Civil Procedure provide persuasive authority for this approach.”Id.
Under step two of its pragmatic solution, the Court declared that these “common core findings . . . will have res judicata effect” in the subsequent “damages actions” the class members would bring.Id. at 1269
. The Phase I
defendants committed the designated acts at all times after July 1, 1969, (8), July 1, 1974, (3),
(6) and (7), or May 5,1982 (4), and (4)(a).
51
It declined to certify the issues “on the fraud and intentional infliction of emotion
distress claims, which involved highly individualized determinations, and the finding on
entitlement to punitive damages questions, which was premature.” Engle III,
945 So. 2d at 1269
.
The new issues class served as a substitute for the class the Court decertified.
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findings, which, as the Third District observed, were decided with reference to a
“composite plaintiff who smoked every single brand of cigarettes, saw every single
advertisement, read every single piece of paper that the tobacco industry ever
created or distributed, and knew about every single allegedly fraudulent act,”
Engle II,
853 So. 2d at 467
n.48, would now have the legal effect of a partial final
judgment resolving issues for individual class members.52 The Court’s pragmatic
solution was therefore intended to enable class members—in suing an Engle
defendant on claims of strict liability, negligence, breach of express warranty,
breach of implied warranty, fraud, and conspiracy to commit fraud—to plead the
Phase I findings to conclusively establish elements of their claims and thereby
foreclose the defendant from denying such elements.53 Although the Phase I jury
52
In a dissent joined by Justice Bell, Justice Wells recognized that the decision to grant
“res judicata effect” to these Phase I findings was, to put it mildly, problematic. As Justice Wells
presciently observed,
In what I conclude will be harmful and confusing precedent, the majority saves
some of the jury findings in Phase I of the class action before decertifying the class.
I do not join in doing that; rather, I would follow the overwhelming majority of
courts and hold that this was not a proper class action. The result of the majority
“retaining the jury’s Phase I findings” is not, as the majority asserts, “pragmatic”;
rather, it is problematic. Under the majority’s holding, the class closed a decade
ago. Who are the individuals that are to get the use of these “findings”? How will
a trial court make that determination? . . . How are these findings to be used in
cases in which the findings are used? . . . These are only a few of the issues which
arise in application of the majority’s holding.
Engle III,
945 So. 2d at 1284
(Wells, J., dissenting) (citation omitted).
53
The class members understood that this was the Florida Supreme Court’s intent. Their
complaints cited the Engle III opinion and its holdings and pled the Phase I findings verbatim, as
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found none of the defendants foreclosed of their defenses,54 id. at 450, the Florida
Supreme Court did. All that remained for progeny plaintiffs to prove, and for
progeny juries to consider, was “individualized issues such as legal causation,
comparative fault, and damages.” Engle III,
945 So. 2d at 1268
.
After ruling on these two matters without providing the parties notice or
opportunity to be heard on them,55 the Supreme Court remanded the case to the
if they were filing suit to domesticate a foreign judgment. E.g., Amended Complaint, Brown v.
R.J. Reynolds Tobacco Co. (Brown I),
576 F. Supp. 2d 1328
(M.D. Fla. 2008) (No. 3:07-cv-
00761).
54
Indeed, the Phase I jury was instructed not to “determine any issues regarding the
conduct of individual class members of the Florida class, including any issues as to
compensatory damages for individual class members.”
55
The Florida Supreme Court has the power to request supplemental briefs on any issue
“where confusion or doubt remains.” In re Order of First Dist. Ct. App. Regarding Brief Filed in
Forrester v. State,
556 So. 2d 1114, 1116
(Fla. 1990). The Court regularly employs this tool,
and it should have been especially inclined to do so in a case involving hundreds of thousands of
plaintiffs, an entire industry, and the potential for billions of dollars in compensatory and
punitive damages. The question, then, is why did the Engle III Court not do so?
Consider what would have happened if the Court had requested briefing. Imagine what
the parties’ responses would have been if they were to asked to comment on whether the Court
should (1) certify a class of “limited liability issues” pursuant to Florida Rule of Civil Procedure
1.220(d)(4)(A); (2) retain the Phase I findings (with the exception of findings 4, 5 and 9); and (3)
order the courts that would be handling the progeny cases to give the Phase I findings res
judicata effect. The plaintiffs, sensing that a majority of the justices were seeking a way to
enhance the class members’ chances of recovery against the Engle defendants, would have
responded affirmatively. The defendants, realizing that the questions had no bearing on the
matters before the Court and sensing that a majority of the justices wanted to stack the deck
against them, would have responded in the negative.
Surely, before briefing the first question, the defendants would be wondering why the
Court, acting as though it were a trial court, was contemplating the certification of an issues class
after the litigation ended. The defendants would contemplate asking the Court for clarification.
Why certify the class? What issues might be certified?
The second question would leave the defendants bewildered, since the Phase I findings
were not before the Court at all. The defendants had not challenged the findings in appealing the
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Third District “with directions that the class should be decertified without
prejudice to the class members filing individual claims within one year of the
issuance of our mandate in this case with res judicata effect given to certain Phase I
findings,” and “for further proceedings consistent with [its] opinion.” Engle III,
945 So. 2d at 1254, 1277
.
On August 7, 2006, the tobacco companies moved the Supreme Court for
rehearing. Their motion contended that the Court’s certification of an issues class
under Rule 1.220(d)(4)(A) and its pronouncement that the Phase I jury findings
would “have res judicata effect” in the cases brought by class members denied
trial judge’s Omnibus Order to the Third District. And the Third District had not passed sua
sponte on the legal status of the findings in deciding Engle II. That aside, why would the Court
“retain” useless jury findings? Would the retention of the findings, vague or irrelevant facts,
amount to an affirmance of the findings on appeal, following a review of the Phase I jury
instructions, the jury’s answers to the special interrogatories, and the jury’s verdict? The
defendants would likely ask the Court for clarification.
The third question would have informed the defendants that in declaring that the findings
“will have res judicata effect” in future progeny cases, the Court’s majority were so intent on
stacking the deck that they were willing, in this case only, (1) to disregard the Court’s well-
established precedent that bars a rendering court from determining the res judicata effect of its
own decisions and (2) to enjoin the progeny courts, in case after case, from obeying their federal
constitutional duty to examine the Engle litigation to determine whether the defendants were
afforded basic common-law protections against the arbitrary deprivation of property. In taking
these steps, the majority would be risking the Court’s integrity and, worse yet, they would be
inducing the lower courts to risk their integrity as well. Why would the majority do all of that?
The defendants would very carefully weigh their response to the third question. The
Florida precedent that bars a rendering court from declaring the preclusive effect of its own
decisions is so strong and time-honored that calling that precedent to the Court’s attention,
reminding the Court of the policies underpinning the precedent, and, in particular, the
recognizing court’s constitutional duty, would require the wisdom of Solomon and then some.
In sum, had the Court abided by its procedures, and provided the parties with the
requisite notice and opportunity to be heard, the Engle III opinion would have never been
written.
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them due process in that the Court provided them with no notice that it was
contemplating such action and no opportunity to be heard. The denial of due
process aside, the tobacco companies contended that the Court erred in certifying
the issues class. The “basic principle of class-action law throughout the country . .
. [is] that certification—under any subdivision of the rules—must be addressed and
determined before there is a trial on the merits.” The companies’ final contention
was that the Phase I jury findings relating to the claims of strict liability and
negligence, among others, could not be given “res judicata effect” because the
findings were too generalized to provide a basis for individual causation consistent
with due process.
The Florida Supreme Court withdrew its July 6, 2006, opinion, Engle v.
Liggett Grp., No. SC03-1856,
2006 WL 1843363
(Fla. 2006), and on December 21, 2006, published Engle III as a substitute. Engle III made minor modifications to the withdrawn opinion, but none are pertinent here. That same day, the Court summarily denied the tobacco companies’ motion for rehearing in an order it chose not to publish. The order instructed the companies not to file another motion for rehearing.56 The Engle defendants petitioned the U.S. Supreme Court for certiorari relief, but their petition was denied. R.J. Reynolds Tobacco Co. v. Engle,552 U.S. 941
,128 S. Ct. 96
,169 L. Ed. 2d 244
(2007).
56
“No further motions for rehearing will be entertained by this Court.”
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II.
WHAT “RES JUDICATA” TRADITIONALLY MEANS
In this appeal, RJR and Philip Morris challenge a judgment in favor of Earl
Graham, as personal representative of the estate of his deceased wife, Faye
Graham, on claims of strict liability and negligence. Ante at 17. Under traditional
Florida tort law, a plaintiff alleging strict liability in the products-liability context
must prove inter alia (a) that the product in question was defective57 and (b) that
the “defect caused the injury or harm alleged.” Aubin v. Union Carbide Corp.,
177 So. 3d 489, 513
(Fla. 2015). Similarly, under traditional Florida tort law, a plaintiff alleging negligence must prove inter alia (a) that the defendant breached a duty of care owed to her and (b) that the defendant’s breach caused her harm. Williams v. Davis,974 So. 2d 1052, 1056
(Fla. 2007). In the wake of Engle III’s
res judicata dicta,58 these traditional requirements have gone by the wayside in
Engle-progeny cases.
In this case, for example, the District Court held the defendants liable even
though Mr. Graham never proved that his late wife’s injury was caused by the
57
Under traditional Florida tort law, “a product may be defective by virtue of a design
defect, a manufacturing defect, or an inadequate warning.” Jennings v. BIC Corp.,
181 F.3d 1250, 1255
(11th Cir. 1999) (citing West v. Caterpillar Tractor Co.,336 So. 2d 80, 86
(Fla. 1976). A “design defect . . . [is] a defect which renders the product unreasonably dangerous.” Liggett Grp., Inc. v. Davis,973 So. 2d 467, 475
(Fla. 4th Dist. Ct. App. 2007).
58
See infra notes 77, 89, and accompanying text.
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defendants’ product defect(s) or negligent conduct. Instead, the Court allowed Mr.
Graham to take advantage of state-law conclusive presumptions—which did not
exist when the parties litigated Phase I and apply only in Engle-progeny cases—
under which “injury as a result of the Engle defendants’ conduct is assumed.”
Douglas III,
110 So. 3d at 429
.
The conclusive presumptions on which Engle-progeny plaintiffs rely
effectively transform the Phase I findings from “useless,” Douglas III,
110 So. 3d at 433
, to dispositive. For example, the Phase I finding that each defendant
“place[d] cigarettes on the market that were defective and unreasonably
dangerous” now establishes as a matter of law that (a) every cigarette smoked by
every class plaintiff was defective and unreasonably dangerous59 and (b) such
(unidentified) unreasonably dangerous defect(s) caused every class member’s
injury, including Ms. Graham’s.60 Similarly, the Phase I finding that each
defendant “failed to exercise the degree of care which a reasonable manufacturer
would exercise under like circumstances” now establishes under state law that (a)
59
This finding only necessarily establishes that each defendant produced at least one
defective and unreasonably dangerous cigarette. That the Engle jury also answered “yes” with
respect to the conduct element of fraud and intentional infliction of emotional distress—claims
“which involve[] highly individualized determinations,” Engle III, 945 So. 2d at 1269—shows
that the jury felt empowered to make findings that would be narrowly applicable to only some
class members. At the Phase I trial, plaintiffs’ counsel acknowledged that “[i]t’s a fallacy that
every common issue has to apply to one hundred percent of the class members.”
60
Phase I jurors were explicitly instructed not to “determine any issues regarding the
conduct of individual members of the Florida class.” Moreover, under the original Engle trial
plan, “individual causation” was to be determined by new juries in Phase III because it was
“highly individualized.” Engle III,
945 So. 2d at 1254
.
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the Engle defendants breached their duty of care to every class plaintiff61 and (b)
their (unidentified) breach(es) caused every class member’s injury, including Ms.
Graham’s.
That Engle III’s dicta62 regarding the res judicata effect of the Phase I
findings could so drastically alter the Phase I findings and Florida’s preclusion
doctrines and tort law is startling. Even more alarming is that progeny courts,
including the Majority today, have consistently failed to address the resulting
constitutional violations.63 In this dissent, I lay bare these violations, which have
been carried forward and incrementally exacerbated for twenty years.
So far, I have traced the relevant procedural history preceding this case
through Engle III. Below, I continue the narrative by detailing layer upon layer of
judicial error committed by numerous state and federal courts, culminating finally
with the Majority’s errors today. To illuminate that narrative, I pause to explain
some fundamental principles of common and constitutional law that progeny
61
The finding only necessarily establishes that each defendant breached its duty to some
class members at least once over a fifty-year period. See supra note 59. Some of the theories of
breach on which jurors were instructed pertained only to class members who smoked low-tar
cigarettes. See supra note 21 and accompanying text. Another theory related to “youth
marketing,” which clearly cannot serve as the basis of a breach of duty owed to adults. Another
rested on “minority marketing,” which clearly cannot serve as the basis of a breach of duty owed
to those in the majority. Finally, yet another theory of breach rested on marketing aimed at
women and other discrete portions of the population, which clearly cannot serve as the basis of a
breach of duty owed to males.
62
See infra notes 77, 89, and accompanying text.
63
See infra Part VII.
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courts have either failed to understand or chosen to ignore. Specifically, I provide
an overview of preclusion law and explain the U.S. Constitution’s role in its
effective operation. I then explain how progeny courts have interpreted Engle III’s
“res judicata” dicta as a mandate to disregard traditional preclusion law, tort law,
and the Constitution; an invitation that many progeny courts have accepted.
A. Res Judicata 101: The Elements of Issue and Claim Preclusion
The term “res judicata” refers to all the ways in which the judgment of one
court will have a binding effect in a subsequent case. Res judicata, Black’s Law
Dictionary 1425 (9th ed. 2009). This definition is the most common, but “lumps
under a single name two quite different effects of judgments.”64 Id. The first—
“issue preclusion” or “collateral estoppel”—is the effect of foreclosing relitigation
of matters that have been litigated and decided. Id. The second—“claim
preclusion,” “merger,” or “bar”—is the effect of foreclosing any litigation of
64
A court’s “limit[ing] the res judicata phrase so as to exclude the doctrines of issue
preclusion or collateral estoppel. . . . is potentially confusing, and it is better to use res judicata in
its broader sense to encompass both sets of doctrine.” 18 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 4402 (3d ed. 2016).
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matters that have never been litigated because they should have been advanced in
an earlier suit.65 Id.
Both issue preclusion and claim preclusion operate across a two-lawsuit
continuum.66 First, parties litigate a dispute to a final judgment on the merits.
Second, in a later, separate suit between the parties, one party brings to court
evidence of an earlier judgment and contends that issue or claim preclusion should
apply to prevent her opponent from litigating a previously decided issue67 or cause
of action.68 In this two-lawsuit scheme, the first court is the “rendering” court and
the second is the “recognizing” court. In this subpart, I elaborate on the elements
of each doctrine.
Issue preclusion, as developed in the common law, “bars relitigation of an
issue of fact or law that has been decided in a prior suit.” Baloco v. Drummond
65
Considering that “[t]he preclusive effects of former adjudication are discussed in
varying and, at times, seemingly conflicting terminology,” Migra v. Warren City Sch. Dist. Bd.
of Ed.,
465 U.S. 75
, 77 n.1,104 S. Ct. 892
, 894 n.1, 79 L .Ed. 2d 56 (1984), to make matters
easier, I will refer to effect one exclusively as “issue preclusion,” and effect two as “claim
preclusion.”
66
The two-lawsuit nature of claim and issue preclusion distinguishes these doctrines from
the law-of-the-case doctrine: whereas the former apply only when a “new and different” suit is
involved, the latter operates within a single proceeding. See, e.g., Florida Dep’t of Transp. v.
Juliano,
801 So. 2d 101, 105
(Fla. 2001) (providing a typical explanation of the distinction).
67
“Issue” is defined as “a single, certain, and material point arising out of the allegations
and contentions of the parties; it is matter affirmed on one side and denied on the other.” Issue,
Black’s Law Dictionary 907 (9th ed. 2009) (citation omitted).
68
A cause of action is defined as “a situation or state of facts that entitles a party to
maintain an action in a judicial tribunal.” Cause of action, Black’s Law Dictionary 251 (9th ed.
2009) (citing Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 170
(2d ed. 1899)).
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Co.,
767 F.3d 1229, 1251
(11th Cir. 2014). Drawing from its common-law roots,
the doctrine only applies when
(1) the issue at stake is identical to the one involved in the prior
litigation; (2) the issue was actually litigated in the prior suit; (3) the
determination of the issue in the prior suit was a necessary part of the
judgment in that action; and (4) the parties are the same or in privity
with each other and the party against whom the earlier decision is
asserted had a full and fair opportunity to litigate the issue in the
earlier proceeding.
Id.
Although some states articulate these elements differently, the core
requirements are largely the same across all jurisdictions.
In Florida, the elements are set forth in a five-prong test. For issue
preclusion to apply there must be (1) identical parties,69 (2) identical issue(s), (3)
full litigation of the particular matter, (4) determination of the particular matter,
and (5) a “final decision” in the prior proceeding by a court of competent
jurisdiction. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co.,
945 So. 2d 1216, 1235
(Fla. 2006) (quoting Dep’t of Health & Rehab. Servs. v. B.J.M.,656 So. 2d 906, 910
(Fla. 1995)).
Elements (2), (3), and (4) of the Florida doctrine culminate in an “actually
decided” requirement, which is fundamental to issue preclusion. The requirement
69
With respect to this element at least, the Florida Supreme Court has shown a greater-
than-normal reticence to depart from traditional common law. Florida Bar v. Clement,
662 So. 2d 690
, 697–98 (Fla. 1995) (per curiam) (citation omitted) (“Although federal courts and some
other jurisdictions no longer require mutuality of parties . . . Florida courts have held that [issue
preclusion] can be asserted only when the identical issue has been litigated between the same
parties.”).
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originated with early English authorities, which explained that preclusion requires
a determination “directly upon point”; recognizing courts could not preclude
parties from litigating issues on the basis that such issues might have been or
probably were decided. The Duchess of Kingston’s Case, 20 Howell’s State Trials
538 (House of Lords 1776). Rather, courts could estop litigation only when the
“estoppell” was “certaine to every intent, and not . . . taken by argument or
inference.” 2 Coke, The First Part of the Institutes of the Laws of England; Or, A
Commentary on Littleton ¶352a (1817).
This early English common-law requirement is now deeply ingrained in the
American judicial system. Federal and state issue-preclusion doctrines have
included the requirement for well over a century. See, e.g., Cromwell v. County of
Sacramento,
94 U.S. 351, 353
,24 L. Ed. 195
(1876) (“[T]he inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined.” (emphasis added)); Burlen v. Shannon,99 Mass. 200, 203
(1868) (noting that “according to
all the well considered authorities, ancient and modern,” the inference that an issue
was decided by prior litigation had to “be inevitable, or it [could not] be drawn”).
And, to this day, federal and state courts uniformly adhere to it.70 Florida is no
70
E.g., SEC v. Monarch Funding Corp.,
192 F.3d 295, 309
(2d Cir.1999); United States v. Rigas,605 F.3d 194
, 217–19 (3d Cir. 2010); Haywood v. Ball,634 F.2d 740, 743
(4th Cir. 1980); United States v. Patterson,827 F.2d 184
, 187–90 (7th Cir. 1987); Kelly v. Armstrong, 141
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exception. See Brown v. R.J. Reynolds Tobacco Co. (Brown II),
611 F.3d 1324, 1334
(“Florida courts have enforced the ‘actually adjudicated’ requirement with
rigor.” (citation omitted)).
The universality of the actually decided requirement is no accident; the
requirement helps facilitate due process. When a rendering court decides an issue
and a recognizing court later accords that issue preclusive effect, two consequences
result: First, the precluded party is gagged from litigating that issue.
Fayerweather v. Ritch,
195 U.S. 276, 307
,25 S. Ct. 58, 68
,49 L. Ed. 193
(1904). Second, the parties are bound to the rendering court’s decision with respect to that issue.Id. at 299
,25 S. Ct. at 64
. A litigant is therefore susceptible to being denied her due process right of having an opportunity to be heard on each issue of her case, duPont v. Southern,771 F.2d 874, 880
(5th Cir. 1985), unless the recognizing court, before giving preclusive effect to an issue determination, first identifies with F.3d 799, 801–02 (8th Cir. 1998); Chew v. Gates,27 F.3d 1432, 1438
(9th Cir. 1994); Dodge v. Cotter Corp.,203 F.3d 1190
, 1198–99 (10th Cir. 2000); Lary v. Ansari,817 F.2d 1521
, 1524–25 (11th Cir. 1987); Moody v. Rambo,727 So. 2d 116, 118
(Ala. Civ. App. 1998); JeToCo Corp. v. Hailey Sales Co.,596 S.W.2d 703
, 706–07 (Ark. 1980); Brake v. Beech Aircraft Corp.,229 Cal. Rptr. 336, 343
(Cal. Ct. App. 1986); Dowling v. Finley Assocs.,727 A.2d 1245
, 1251–53 (Conn. 1999); Major v. Inner City Prop. Mgmt., Inc.,653 A.2d 379
, 382–83 (D.C. 1995); Herzog v. Lexington Twp.,657 N.E.2d 926, 931
(Ill. 1995); Conn. Indem. Co. v. Bowman,652 N.E.2d 880, 883
(Ind. Ct. App. 1995); Day v. Crowley,172 N.E.2d 251, 254
(Mass. 1961); People v. Gates,452 N.W.2d 627
, 631–32 (Mich. 1990); Parker v. MVBA Harvestore Sys.,491 N.W.2d 904, 906
(Minn. Ct. App. 1992); In re Breuer’s Income Tax,190 S.W.2d 248, 250
(Mo. 1945); Manard v. Hardware Mut. Cas. Co.,207 N.Y.S.2d 807, 809
(App. Div. 1960); Buckeye Union Ins. Co. v. New England Ins. Co.,720 N.E.2d 495
, 501 (Ohio 1999); Nealis v. Baird,996 P.2d 438
, 458–59 (Okla. 1999); Lee v. U.S. Fid. & Guar. Co.,538 P.2d 359, 361
(Or. 1975).
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specificity what the rendering court allegedly decided and determines it was,
indeed, actually decided.
Though similar to issue preclusion in some respects, claim preclusion is a
distinct doctrine carrying its own elements. Unlike issue preclusion, which can be
asserted offensively or defensively, claim preclusion is an affirmative defense.71
Fed. R. Civ. P. 8(c)(1); Fla. R. Civ. P. 1.110. To invoke claim preclusion, a
defendant must prove in a recognizing court that the plaintiff’s cause of action was
adjudicated on the merits in a previous case involving the same parties.72 Fla.
Dep’t of Transp. v. Juliano,
801 So. 2d 101, 105
(Fla. 2001). Thus, under both Florida and federal law, claim preclusion carries four elements: (1) “a final judgment on the merits”; (2) a “decision . . . rendered by a court of competent jurisdiction”; (3) “the same cause of action . . . involved in both cases”; and (4) “the parties, or those in privity with them, are identical in both suits.”73 Baloco v. Drummond Co.,767 F.3d 1229, 1246
(11th Cir. 2014).
71
“[T]he obvious purpose” of claim preclusion is to force the plaintiff to present all of his
grounds of recovery in a single action. Manning v. Grimsley,
643 F.2d 20, 24
(1st Cir. 1981).
72
Florida’s common-law doctrine of claim preclusion remained remarkably stable for
much of the state’s history prior to Engle III and Douglas III. Compare Yulee v. Canova,
11 Fla. 9, 29
(Fla. 1864) with Florida Bar v. Rodriguez,959 So. 2d 150, 158
(Fla. 2007) (showing that
core elements of claim preclusion remained unchanged in Florida across a period of nearly 150
years).
73
Under Florida law, these elements have not changed in non-Engle-progeny cases in the
years following Engle III and Douglas III. See Seminole Tribe of Fla. v. State,
202 So. 3d 971, 973
(Fla. 1st Dist. Ct. App. 2016) (setting forth the same four claim-preclusion elements).
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Like issue preclusion’s actually decided requirement, elements (1) and (3) of
claim preclusion are ubiquitous and deeply ingrained because they help protect
parties’ due process rights.74 Element (1), the final-judgment requirement,75 has
long been a “cardinal rule” in Florida and all other traditional common-law
jurisdictions. Douglas III,
110 So. 3d at 438
(Canady, J., dissenting) (quoting Juliano,801 So. 2d at 105
) (citing Kimbrell v. Paige,448 So. 2d 1009, 1012
(Fla. 1984)). The requirement is important because a defendant who successfully invokes claim preclusion bars a plaintiff from litigating a previously adjudicated cause of action, both as to “issues that were raised . . . [and] issues that could have been raised but were not raised in the first case.”76 Juliano,801 So. 2d at 105
. Barring a cause of action that was never fully litigated to a final judgment unjustly “blockades [an] unexplored path[] that may lead to the truth.” Brown v. Felsen,442 U.S. 127, 132
,99 S. Ct. 2205, 2210
,60 L. Ed. 2d 767
(1979).
74
The other elements have due process implications as well, but those elements are not as
relevant in this case.
75
In the context of claim preclusion, the Florida Supreme Court has endorsed as “most
comprehensive,” a definition of “[a] judgment on the merits” as “one based on the legal rights
and liabilities of the parties.” Allie v. Ionata,
503 So. 2d 1237, 1241
(Fla. 1987) (emphasis
added) (citing 46 Am. Jur. 2d Judgments § 74 (1964)). Further, for a judgment to be final it must
“leav[e] nothing more to be done in the cause except execution.” Id. at 1240.
76
For example, a defendant might successfully assert claim preclusion to prevent a
plaintiff from relitigating a car collision on an intentional-torts theory when the plaintiff
previously won a negligence suit arising from that collision. See 18 Wright, supra, § 4408 (“A
single injury gives a single cause of action.” (citation omitted)).
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Element (3) of claim preclusion, the same-cause-of-action requirement, has
similar constitutional significance. Litigants enjoy a “due process right to fully and
fairly litigate each issue in their case.” duPont,
771 F.2d at 874
; see also Bell v. Burson,402 U.S. 535, 542
,91 S. Ct. 1586, 1591
, 29 L. Ed 90 (1971) (“It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision . . . does not meet [the requirements of the Due Process Clause].”). Claim preclusion—which bars litigation both as to issues that were and were not litigated in a prior case, Juliano, 801 So. 2d at 105—stands in tension with this due process right. The doctrine is reconciled with due process by means of the same-cause-of-action requirement, which functions to “bar[] only those claims that could have been raised in the prior litigation.” Griswold v. City of Hillsborough,598 F.3d 1289, 1293
(11th Cir. 2010) (emphasis added); see also Dennard v. State, No. SC15-300,2016 WL 1252516
, at *2 (Fla. Mar. 30, 2016) (explaining that res judicata only extends to
“claims that could have been raised in the prior action” (emphasis in original)
(quotation marks and citation omitted)).
B. Res Judicata 102: Procedures to Invoke Issue and Claim Preclusion
When applied properly, issue and claim preclusion facilitate the worthy aim
of efficiency: “By ‘preclud[ing] parties from contesting matters that they have had
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a full and fair opportunity to litigate,’ these two doctrines protect against ‘the
expense and vexation attending multiple lawsuits, conserv[e] judicial resources,
and foste[r] reliance on judicial action by minimizing the possibility of inconsistent
decisions.’” Taylor v. Sturgell,
553 U.S. 880, 892
,128 S. Ct. 2161, 2171
,171 L. Ed. 2d 155
(2008) (alterations in original) (quoting Montana v. United States,440 U.S. 147
, 153–154,99 S. Ct. 970
,59 L. Ed. 2d 210
(1979)). The doctrines, however, carry the risk of depriving litigants of their property without ever affording them an opportunity to be heard on a central element of their case. Hence, recognizing courts should apply the doctrines “only after careful inquiry.” Felsen,442 U.S. at 132
,99 S. Ct. at 2210
. “[I]n properly seeking to deny a litigant two days in court, [recognizing] courts must be careful not to deprive him of one.” Criales v. Am. Airlines, Inc.,105 F.3d 93, 97
(2d Cir. 1997).
Recognizing courts therefore strictly abide by certain common-law
procedures designed to help protect the integrity of their proceedings and litigants’
due process rights. Such procedures are so ubiquitous and rudimentary that
litigants and courts have had little, if any, reason to test their boundaries. See
Honda Motor Co., Ltd. v. Oberg,
512 U.S. 415, 430
,114 S. Ct. 2331, 2340
,129 L. Ed. 2d 336
(1994) (“Because the basic procedural protections of the common law
have been regarded as so fundamental, very few cases have arisen in which a party
has complained of their denial.”). The rare court that does deviate from, or
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abrogate, such procedures risks violating litigants’ due process rights. See Douglas
III, 110 So. 3d at 430–31 (“[E]liminating the basic common law protections
against an arbitrary deprivation of property violates due process.” (citing Oberg,
512 U.S at 432,
114 S. Ct. at 2341
)). I detail some of these procedures in a
hypothetical.
A lawsuit is tried to a jury in a rendering court on claims and defenses
framed by the plaintiff’s complaint and the defendant’s answer. After receiving
the jury’s verdict, the court enters a final judgment for the plaintiff. In doing so,
the rendering court does not declare or predict whether, and if so to what extent, a
recognizing court will give preclusive effect to its judgment, that is, to any of the
claims or defenses or to any of the issues that were litigated. To do so would result
in mere dicta, because those determinations are within the recognizing court’s sole
purview.77
77
Prior to Engle III and Douglas III, the Florida Supreme Court had, for more than a
century, consistently implemented the common-law principle that the recognizing court decides
for itself whether claim or issue preclusion should apply. In its 1896 decision of Little v. Barlow,
for example, the Florida Supreme Court held that a defendant asserting a “res judicata” defense
needed to produce “the complete record [of] the former suit” to allow the recognizing court to
evaluate the defense’s merits.
20 So. 240
, 241 (Fla. 1896) (emphasis added). Since then, the Court has repeatedly reiterated this recognizing-court-decides principle. See, e.g., Prall v. Prall,50 So. 867
, 870 (Fla. 1909) (requiring the party asserting issue preclusion to establish, “with sufficient certainty,” its elements in the second lawsuit); Rodriguez,959 So. 2d at 159
(finding that res judicata does not apply because it—acting as the recognizing court—determined that “the current case . . . is based on a different cause of action” from the first case); Gordon v. Gordon,59 So. 2d 40
, 44–45 (Fla. Div. A 1952) (explaining that the recognizing court evaluates whether claim or issue preclusion should apply); Bagwell v. Bagwell,14 So. 2d 841, 843
(Fla.
Div. A 1943) (requiring the party “claim[ing] the benefit of the former judgment” to produce
evidence in the second lawsuit of “the matter formerly adjudicated”). In fact, so basic is this
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Later, the plaintiff sues the defendant78 in a Title VII action in a different
court, a recognizing court. Her complaint alleges several discrete acts of conduct
severe or pervasive enough to create a hostile work environment. The defendant
denies each allegation. The plaintiff, invoking issue preclusion, then moves the
court to strike the defendant’s denial of two of the acts on the ground that they
were adjudicated in her favor in the previous lawsuit. The defendant opposes the
motion, so the court requires the plaintiff—the party with the burden of proof79 —
principle that it extends beyond Florida and is viewed as a general rule of common law in the
United States. E.g., Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367, 396
,116 S. Ct. 873, 888
,134 L. Ed. 2d 6
(1996) (Ginsburg, J., concurring in part and dissenting in part) (citation
omitted) (“A court conducting an action cannot predetermine the res judicata effect of the
judgment; that effect can be tested only in a subsequent action.”); 18 Wright, supra, § 4405
(“The first court does not get to dictate to other courts the preclusion consequences of its own
judgment.”); Herbert Newberg & Alba Conte, Newberg on Class Actions, § 16:24 (4th ed. 2002)
(“[T]he potential impact of a class court judgment is not a matter for determination by the
deciding court. The res judicata effect of a class judgment can only be determined by a later
court in light of a specific controversy.”).
78
Recall that under Florida’s preclusion doctrines, a recognizing-court lawsuit
necessarily involves litigants who are the same as, or privy to, those who litigated in the
rendering court. See Dadeland Depot, 945 So. 2d at 1235 (listing identical parties as one of the
elements of issue preclusion); Juliano,
801 So. 2d at 105
(listing identical parties as one of the
elements of claim preclusion).
79
The party claiming preclusion bears the burden of proving its elements. 18 Wright,
supra, § 4405 (“[T]he burden of establishing preclusion is placed on the party claiming it.”).
The Florida Supreme Court made this clear more than a hundred years ago in Prall: “If there is
any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient
certainty . . . is upon the party who claims the benefit of the former judgment.” 50 So. at 870;
see also Bagwell,
14 So. 2d at 843
(“The burden of proof to establish a former adjudication, by law, was cast on the defendant below.”). At least until Douglas, modern Florida courts were still consistently hearkening to this common-sense principle. See, e.g., Campbell v. State,906 So. 2d 293, 295
(Fla. 2d Dist. Ct. App. 2004) (“The party claiming the benefit of res judicata has the burden of establishing with sufficient certainty, by the record or by extrinsic evidence, that the matter was formerly adjudicated”); State St. Bank & Trust Co. v. Badra,765 So. 2d 251, 253
(Fla. 4th Dist. Ct. App. 2000) (“[T]o establish res judicata . . . the party claiming the benefit of
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to present the portions of the previous lawsuit’s record that establish the
adjudication of the issues. The plaintiff responds by introducing from that record
the complaint and answer, the jury instructions, the jury’s verdict, and the final
judgment.
Upon receiving the plaintiff’s evidence, the court decides whether to grant
her motion to strike. First, the court determines whether the plaintiff has
established the elements of issue preclusion under the rendering state’s laws.80
Because every state has a presumption against preclusion, recognizing courts must
not apply preclusion if any doubt exists that the elements of preclusion have been
satisfied. Issue preclusion’s actually decided requirement, for example, is
stringent: If a rendering court’s jury instructions leave “it open to the jury to find
for the defendant upon either of . . . two [or more] propositions, and the verdict
does not specify upon which the jury acted, there can be no certainty that they
the former adjudication has the burden of establishing, with sufficient certainty by the record or
by extrinsic evidence, that the matter was formerly adjudicated.”); Meyers v. Shore Inds. Inc.,
597 So. 2d 345, 346
(Fla. 2d Dist. Ct. App. 1992) (“The party asserting the defense of estoppel
by judgment has the burden of demonstrating with sufficient certainty through the record or
extrinsic evidence that the issue was adjudicated fully.”).
80
“[The full faith and credit statute] requires a federal court to look first to state
preclusion law in determining the preclusive effects of a state court judgment.” Marrese v. Am.
Acad. of Orthopaedic Surgeons,
470 U.S. 373, 381
,105 S. Ct. 1327, 1332
,84 L. Ed. 2d 274
(1985) (citations omitted). Similarly, the Full Faith and Credit Clause requires recognizing state courts to determine the preclusive effect of a judgment in accordance with the rendering state’s preclusion law. Kremer v. Chem. Const. Corp.,456 U.S. 461, 466
,102 S. Ct. 1883, 1889
,72 L. Ed. 2d 262
(1982).
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found upon one rather than the other,” and preclusion is inappropriate.81 De Sollar
v. Hanscome
158 U.S. 216, 222
,15 S. Ct. 816, 818
,39 L. Ed. 956
(1895). In other
words, if the jury in the previous case could have returned a verdict for the plaintiff
without deciding whether the two acts at issue actually occurred, the recognizing
court could not grant the motion to strike.82
If, on the other hand, the recognizing court concludes that the plaintiff has
met her burden, and preclusion is appropriate under the rendering state’s laws, the
81
We have observed that Florida courts abide a similarly stringent actually
decided requirement:
[P]reclusive effect is not given to issues which could have, but may not have,
been decided in an earlier lawsuit between the parties. See, e.g., Acadia Partners,
L.P. v. Tompkins,
673 So. 2d 487
, 488–89 (Fla. 5th DCA 1996) (holding that
jury’s verdict “for [the defendant]” in a breach of contract action did not establish
the absence of breach because the jury was instructed that it could find for the
defendant if it concluded that the defendant had not breached the contract or if the
defendant proved an affirmative defense); Allstate Ins. Co. v. A.D.H., Inc.,
397 So. 2d 928
, 929–30 (Fla. 3d DCA 1981) (concluding that subcontractor could not
show that general contractor was at fault and therefore not entitled to
indemnification based on jury’s “undifferentiated general verdict finding [the
general contractor] ‘negligent’” in an earlier lawsuit; the jury could have
determined that the general contractor was at fault or vicariously liable);
Seaboard, 260 So. 2d at 864–65 (finding that general verdict “in favor of the
defendant” could have been based on jury’s conclusion that the defendant was not
negligent or that the plaintiff was contributorily negligent); see id. at 865 (“[I]t is
impossible to ascertain with any reasonable degree of certainty as to what issue
was adjudicated in the former suit except to say that the jury found in favor of [the
defendant]. Such uncertainty as to the effect of the prior adjudication renders the
doctrine of collateral estoppel inapplicable.”).
Brown II,
611 F.3d at 1334
.
82
So stringent is the actually decided requirement that a recognizing court cannot apply
preclusion where the record does not reveal the theory on which the jury rendered its decision,
even if the plaintiff produces sworn affidavits from all the jury members to establish that they
based their determination on a particular theory. See Washington, A. & G. Steam Packet Co. v.
Sickles,
72 U.S. 580, 593
,18 L. Ed. 550
(1866) (“[T]he secret deliberations of the jury, or
grounds of their proceedings while engaged in making up their verdict, are not competent or
admissible evidence of the issues or finding.”).
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court will grant the plaintiff’s motion unless the defendant objects further. If the
defendant objects on due process grounds, the recognizing court must ensure that
applying the rendering state’s preclusion law will not violate the defendant’s due
process rights. 83 See Hansberry v. Lee,
311 U.S. 32, 40
,61 S. Ct. 115, 117
,85 L. Ed. 22
(1940) (“[When a due process objection is raised] it becomes the duty of [the recognizing court] to examine the course of procedures in both litigations to ascertain whether the litigant whose rights have thus been adjudicated has been afforded . . . due process.”); Douglas III, 110 So. 3d at 430–31 (expressing the same principle); Adams v. State Farm Bureau Life Ins. Co.,493 F.3d 1276, 1285
(11th Cir. 2007) (“[W]e have stated that res judicata can only be applied to an action if it is first shown that doing so would be consistent with due process.” (citing Twigg v. Sears & Roebuck & Co.,153 F.3d 1222, 1226
(11th Cir.1998))).
In conducting its due process inquiry, the recognizing court must determine (a)
whether the determination in the rendering court was made with adequate notice
and opportunity to be heard, (b) whether state preclusion law contains adequate
83
Many cases make this point plain. See, e.g., Kremer, 456 U.S. at 482–83,
102 S. Ct. at 1898
(“A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment. Section 1738 does not suggest otherwise.”). If this point seems obvious, it is because it is. The duty of courts to refrain from applying laws so as to violate the Constitution has long been understood. See Marbury v. Madison,5 U.S. 137
, 177–80 (1803) (“If two laws
conflict with each other, the courts must decide on the operation of each. . . . [A] law repugnant
to the constitution is void.”).
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safeguards to ensure that courts do not arbitrarily deprive litigants of property,84
and (c) whether such safeguards were, in fact, applied.
To conduct its inquiry appropriately, the recognizing court must “look past
the linguistic label[s] employed by the [rendering court]” and conduct a
meaningful review.85 Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1189
(11th Cir. 2003); see also Gooch v. Life Inv’rs Ins. Co. of Am.,672 F.3d 402
, 420–21 (6th Cir. 2012) (“[In conducting this inquiry] it is incumbent upon us to apply the same scrutiny to state-court judgments that the Supreme Court would apply.”); Criales v. Am. Airlines, Inc.,105 F.3d 93, 97
(2d Cir. 1997) (“[W]e would not
permit the choice of labels to distort substance, especially where the consequence
would be so drastic as to deprive a party of the opportunity to be heard.”). If its
due process inquiry so warrants,86 the recognizing court then grants the plaintiff’s
motion to strike.
84
As the Florida Supreme Court has correctly noted, “eliminating the basic common law
protections against an arbitrary deprivation of property violates due process.” Douglas III, 110
So. 3d at 430–31 (citing Oberg,
512 U.S. at 432
,114 S. Ct. at 2341
).
85
On appeal, an appellate court reviews “‘de novo a district court’s determination of res
judicata or collateral estoppel.’” Vasquez v. YII Shipping Co.,
692 F.3d 1192, 1196
(11th Cir. 2012) (quoting EEOC v. Pemco Aeroplex, Inc.,383 F.3d 1280, 1285
(11th Cir.2004)).
86
The Sixth Circuit articulated well the importance of recognizing courts’ due process
inquiry: “Even though reconsidering whether the class judgment complied with the due process
clause may not promote judicial ‘efficiency’ or protect the ‘finality’ of the original judgment, it
is a due-process imperative that we are not free to ignore.” Gooch v. Life Inv’rs Ins. Co. of Am.,
672 F.3d 402, 420
(6th Cir. 2012) (citation omitted).
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Given the essential inquiries for which a recognizing court is responsible, a
rendering court cannot “predetermine the res judicata effect of [its] judgment.”87
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367, 396
,116 S. Ct. 873, 888
,134 L. Ed. 2d 6
(1996) (Ginsburg, J., concurring in part and dissenting in part) (citation
omitted). This is so even if the rendering court, like the Supreme Court in Engle
III, is convinced that its proceedings were constitutionally sound.
III.
ENGLE III INSTRUCTED PROGENY COURTS TO DISREGARD
TRADITIONAL RES JUDICATA LAW SO AS TO HOLD THE DEFENDANTS
LIABLE WITHOUT REGARD TO THE PHASE I FINDINGS
When Engle III accepted jurisdiction under Article V, Section 3(b)(3) of the
Florida Constitution, it assumed the role of an appellate rendering court, reviewing
the proceedings in Engle I and Engle II for certain issues that were “properly
briefed[,]argued and [ ] dispositive of the case.” Murray v. Regier,
872 So. 2d 217
, 225 n.5 (Fla. 2002) (citing Savona v. Prudential Ins. Co. of America,648 So. 2d 705, 707
(Fla.1995)). The Florida Supreme Court fulfilled this role by considering
the briefed issues and quashing much of the Third District’s judgment.
When Engle III retroactively certified an issues class limited to eight of the
ten of Phase I findings, and declared that those “findings . . . will have res judicata
effect” in future “damages actions” to be brought by individual members of the
87
See supra note 77 and accompanying text.
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decertified class, it usurped the role of a recognizing court.88 Engle III, 945 So. 2d
at 1269. Recognizing progeny courts could have disregarded Engle III’s res
judicata instruction as mere dicta,89 and some did.90 Many others, however, in
deference to the state’s highest court, interpreted the instruction as a binding
mandate. See, e.g., R.J. Reynolds Tobacco Co. v. Martin (Martin II),
53 So. 3d 1060
, 1066–67 (Fla 1st Dist. Ct. App. 2010) (interpreting the Florida Supreme Court’s res judicata instruction as a mandate that “district courts of appeal do not have the prerogative to overrule”); Jimmie Lee Brown II,70 So. 3d at 715
(“We are
constrained by the Florida Supreme Court’s decision in Engle III.”). As shown
below, recognizing courts that interpreted the instruction as a mandate treated
preclusion as a foregone conclusion, thereby abandoning their recognizing-court
duties and putting their integrity at risk while sparing progeny plaintiffs their
burden of proving the elements of preclusion.
88
In retroactively certifying an issues class under Florida Rules of Civil Procedure
1.220(d)(4)(A) pertaining to Phase I findings that were not before the Court, Engle III also
relieved the plaintiffs of their burden of proving that the prerequisites of class certification had
been met, disregarded its procedural rules which require certification to be left to the discretion
of the trial court, and exceeded the scope of its lawful jurisdiction under the state constitution.
89
The Brown I and Brown II Courts performed their recognizing-court duties
notwithstanding Engle III’s res judicata instruction. See infra note 77 and accompanying text.
90
See supra note 117 and accompanying text.
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In accordance with mutuality requirements under Florida preclusion law,91
we are not bound by previous recognizing-court determinations.92 Nevertheless, I
review such cases to demonstrate how progeny courts have incrementally grown
ever-more absurd in their reasoning, ever-more disingenuous in their portrayal of
facts, and ever-more cavalier in their abrogation of due process. The Majority’s
opinion is best understood in the context of the steady downslide that preceded it.
A. The U.S. District Court for the Middle District of Florida in Brown I
Rejected the Florida Supreme Court’s Interference with Its Duties as a
Recognizing Court
Within the one-year limitations period Engle III provided, 9,000 class
members—smokers and personal representatives of deceased smokers— filed suit
against the Engle defendants in state and federal court, the “Engle-progeny
cases.”93 Approximately 4,000 members brought suit in the Circuit Court of Duval
91
As explained above in Part II.A, Florida preclusion law—both issue and claim
preclusion—does not allow parties to successfully assert preclusion unless the recognizing-court
litigants are identical to the rendering-court litigants. In accordance with Engle III, due to the
“highly individualized” issues being litigated, the plaintiffs differ in each progeny case. 945 So.
2d at 1263.
92
That is, of course, unless such determinations represent a change in Florida preclusion
law. But Florida courts have not explicitly indicated a change in preclusion or tort law that
applies only to Engle-progeny litigants. If they had, this appeal would entail different, but
equally serious, constitutional questions.
93
In most situations, several members joined together as plaintiffs.
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County, Florida.94 The tobacco companies, invoking the Class Action Fairness Act
of 2005,
Pub. L. No. 109-2,119
Stat. 4 (codified in scattered sections of 28 U.S.C.),
successfully removed the cases to the U.S. District Court for the Middle District of
Florida.95 Graham v. R.J. Reynolds Tobacco Co. (Graham I), No. 3:09-cv-13603-
MMH-JBT (M.D. Fla. May 28, 2013) was one of them.
After the cases removed to the Middle District of Florida were assembled,96
the tobacco companies moved the District Court in one of the cases, Brown v. R.J.
Reynolds Tobacco Co. (Brown I),
576 F. Supp. 2d 1328
(M.D. Fla. 2008),97 to
decide the preclusive effect, if any, of the Phase I findings based on Engle III’s
declaration that “the Phase I common core findings [it] approved will have res
judicata effect” in the progeny cases. 98 Engle III, 945 So. 2d at 1269. The District
Court granted the motion.
94
Brown I,
576 F. Supp. 2d at 1334
. In January 2008, the parties moved the Judicial
Panel on Multi-District Litigation to consolidate and transfer all of the Engle-progeny cases to
the Middle District of Florida. The motion was denied. All of the progeny complaints asserted
the claims Engle III approved.
95
The plaintiffs contested the removals, but were unsuccessful. Cooper v. R.J. Reynolds
Tobacco Co.,
586 F. Supp. 2d 1312, 1315
(M.D. Fla. 2008).
96
Many of the cases had been filed in the District Court, instead of state court.
97
Brown I had been brought by several class members.
98
Throughout the litigation of the progeny cases, the parties and the courts, focusing on
Engle III’s use of res judicata, have discussed the Engle III “res judicata effect” declaration in
preclusion language. In doing so, they have honored form over substance. If the Florida
Supreme Court had issued an opinion expressly holding that the Phase I findings were such that a
class plaintiff could recover damages against an Engle defendant merely by alleging and proving
addiction to the defendant’s cigarettes, the Court would not have used words res judicata.
Rather, the Court would have entered a judgment for the class plaintiffs on their Engle III-
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The preclusion issue was framed by Brown I’s amended complaint99 and the
defendants’ answers.100 I quote parts of these pleadings because they set the stage
for, and were integral to, the District Court’s decision.
The amended complaint was materially identical to the complaints filed in
the other Engle-progeny cases in that all asserted the same Engle III-approved tort
claims and sought compensatory and punitive damages. None of the complaints
specified the brand(s) of the defendants’ cigarettes the plaintiff smoked, how the
defendants’ tortious conduct caused the plaintiff’s injuries, or even what the
tortious conduct was in the first place. The facts on which a specific tort claim
rested consisted of a citation to the Engle III decision and the Phase I findings.
Amended Complaint at 1, 5, 12–14, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-
00761).
I begin with the pertinent allegations of the complaint and then move to the
defendants’ answers.
approved tort claims, provided that a plaintiff would have to prove addiction to the defendant’s
cigarettes in order to prevail. Nevertheless, courts have treated Engle III as doing the former.
99
The complaint was filed by twenty plaintiffs, all personal representatives of deceased
smokers. Amended Complaint at 1, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-00761).
100
The defendants were the tobacco companies sued in Engle. Answer, Defenses and
Jury Demand at 1–2, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-00761).
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AMENDED COMPLAINT
Plaintiffs, as Personal Representatives of the Estates of
Decedents, hereby sue the Defendants as follows:
INTRODUCTION AND GENERAL ALLEGATIONS
1. This is a complaint against the Defendants seeking compensatory
and punitive damages in accordance with the Florida Supreme Court’s
class action decision and mandate in Engle v. Liggett Group, Inc.,
945 So.2d 1246
(Fla. 2006). In approving the Engle Phase I class
certification and trial, but ordering post Phase I class decertification,
the Florida Supreme Court provided this opportunity to complete
unresolved individual damages claims. The Court held: “that it was
proper to allow the jury to make findings in Phase I on Questions 1
(general causation), 2 (addiction of cigarettes), 3 (strict liability), 4(a)
(fraud by concealment), 5(a) (civil-conspiracy-concealment), 6
(breach of implied warranty), 7 (breach of express warranty), and 8
(negligence). Therefore, these findings in favor of the Engle class can
stand.” The Court further held that specified liability and general
causation findings by the Engle jury did not need to be proved again
as they shall be given res judicata effect. Consequently, Plaintiffs
bring this action upon the limited remaining issues in dispute, to-wit:
specific causation, apportionment of damages, comparative fault,
compensatory damages, entitlement to punitive damages, and punitive
damages.
2. The Florida Supreme Court expressly reserved to class members,
including Plaintiffs and their Decedents, the right to bring individual
actions against Defendants for smoking-related injuries and damages,
including punitive damages. This action is timely because it is brought
within one (1) year of the Florida Supreme Court’s mandate in Engle.
3. Plaintiffs are the Personal Representative for the Estate of the
Decedents. Letters of Administration will be forthcoming and filed
with the Clerk of this Court. This action is brought on behalf of the
Decedent’s survivors and Estate. The potential beneficiaries of a
recovery in this action and the relationship to the Decedents follow
Fla. Stat. § 768
, et seq.
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...
5. The Defendants are manufacturers of cigarettes, or their
successors/predecessors are manufacturers of cigarettes, and they are
foreign corporations doing business in Florida who, at times material
to this action, designed, manufactured, advertised, marketed, and sold
tobacco products for human consumption which proximately caused
injury to Decedents.
...
12. Cigarette Products. Decedents purchased, smoked, and were
addicted to cigarette products manufactured and sold by Defendants
which were the subject of Engle. They were designed, manufactured,
advertised, marketed, and sold by the Defendants at all times material
to these claims.
13. Common Liability Findings. Plaintiffs assert the jury findings in
the Phase I Engle trial which were given res judicata effect by the
Florida Supreme Court, including but not limited to the following:
a. Smoking cigarettes causes aortic aneurysm, bladder cancer, cerebral
vascular disease, cervical cancer, chronic obstructive pulmonary
disease, coronary heart disease, esophageal cancer, kidney cancer,
laryngeal cancer, lung cancer (specifically, adenocarcinoma, large cell
carcinoma, small cell carcinoma, and squamous cell carcinoma),
complications of pregnancy, oral cavity/tongue cancer, pancreatic
cancer, peripheral vascular disease, pharyngeal cancer, and stomach
cancer.
b. Nicotine is addictive.
c. All of the Defendants placed cigarettes on the market that were
defective and unreasonably dangerous.
d. All of the Defendants 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 or both.
e. All of the Defendants 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.
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f. All of the Defendants sold or supplied cigarettes that were efective.
g. All of the Defendants were negligent.
h. All Defendants sold or supplied cigarettes that, at the time of sale or
supply, did not conform to representations of fact made by
Defendants.
14. As a direct and proximate result of Decedents’ smoking of
Defendants’ cigarettes, Decedents suffered bodily injury and died.
Defendants’ cigarettes caused Decedents to develop one or more
cigarette-related diseases or medical conditions and one or more of
them resulted in or substantially contributed to Decedents’ death.
...
17. The threshold requirement for pleading punitive damages has been
previously met in the Engle Phase I proceeding.
COUNT I – STRICT LIABILITY
18. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
19. As a direct and proximate result of Defendants’ defective and
unreasonably dangerous cigarettes, Decedents were injured and died.
...
COUNT II – BREACH OF EXPRESS WARRANTY
20. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
21. As a direct and proximate result of Defendants’ breach of express
warranty, Decedents were injured and died.
...
COUNT III – BREACH OF IMPLIED WARRANTY
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22. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
23. As a direct and proximate result of Defendants’ breach of implied
warranty, Decedents were injured and died.
...
COUNT IV – CIVIL CONSPIRACY TO FRAUDULENTLY
CONCEAL
24. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
25. As a direct and proximate result of Defendants’ conspiracy to
fraudulently deceive, Decedents were injured and died.
...
COUNT V – FRAUDULENT CONCEALMENT
26. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
...
27. As a direct and proximate result of Defendants’ fraudulent
concealment, Decedents were injured and died.
...
COUNT VI – NEGLIGENCE
28. The Introduction and General Allegations above are re-alleged and
incorporated herein by reference.
29. As a direct and proximate result of Defendants’ negligence,
Decedents were injured and died.
Id.
at 2–7.
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The complaints in Brown I and the other progeny cases were pleaded
pursuant to Rule 8(a) of the Federal Rules of Civil Procedure101 and the Supreme
Court’s instructions in Ashcroft v. Iqbal,
556 U.S. 662
,129 S. Ct. 1937
, 173 L. Ed.
2d. 868 (2009). Iqbal requires that
[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter . . . to “state a claim to relief that is plausible on its
face.” [Bell Atlantic Corp. v. Twombly,
550 U.S. 544
,] 570,127 S. Ct. 1955
, [167 L. Ed. 2d. 929 (2007)]. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.
Id. at 556
,127 S. Ct. 1955
. The plausibility standard is not
akin to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Ibid.
. . .
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice. . . .
Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. [Iqbal v. Hasty,
490 F.3d 143
, 157–58 (2d Cir. 2007) rev’d, Iqbal,556 U.S. 662
,129 S. Ct. 1937
]. But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not “show[n]”—“that the pleader is entitled to
relief.” Fed. Rule Civ. Proc. 8(a)(2).
Id.
at 678–79, 120 S. Ct. at 1949–50.
The amended complaint did not satisfy Rule 8(a) and Iqbal’s pleading
standards because it merely recited conclusory statements from the Engle III
opinion. Moreover, it failed altogether to identify the tortious conduct that caused
the plaintiffs’ injuries.
101
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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In drafting their amended complaints in Brown I and other progeny cases,
progeny plaintiffs simply lifted language from the Engle III opinion as a means of
pleading res judicata offensively, using the doctrine as a substitute for alleging the
facts necessary to establish the elements of their causes of action. E.g., Amended
Complaint at 4, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-00761). This method
of pleading is foreign to what Rule 8 prescribes102 and helps explain the difficulty
federal district courts have encountered in adjudicating progeny cases.
Such difficulty could have been mitigated if the following procedures had
been followed: To satisfy the requirements of Rule 8 and Iqbal, plaintiffs’ counsel
should have drafted a condensed version of the Phase I complaint, one tailored to
the individual plaintiff’s claims. With respect to negligence, for example, the
plaintiffs’ complaints should have identified each defendant’s negligent conduct,
noting when it took place and explaining how it caused the plaintiff’s injury. Each
defendant, in turn, would answer the complaint and might choose to deny inter alia
(1) that it engaged in the alleged conduct, (2) that such conduct was negligent, and
(3) that such conduct caused the plaintiff’s injuries. Next, the plaintiff, invoking
res judicata, would likely respond with a motion to strike denials (1) and (2) as
being foreclosed by the Phase I findings and/or by Engle III. If a defendant then
102
Rule 8(a) provides that “a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each allegation
must be simple, concise and direct.” Fed. R. Civ. P. 8(d).
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opposed that motion, the plaintiff, having the burden of proof on the applicability
of preclusion, would introduce into evidence the part of the Engle proceedings that
established the foreclosure. The court would then examine such evidence and
rule.103
That things did not operate in this way suggests that Engle-progeny cases
have more to do with a change in substantive law than with an invocation of
traditional claim or issue preclusion. If, for example, Engle III established as a
substantive rule of tort law (1) that all cigarettes are defective, unreasonably
dangerous, and negligently made and (2) that one who smokes them can recover
damages for smoking-related injury—because it is conclusively presumed that the
defect or negligence caused the injury—then the way progeny cases have been
pleaded makes more sense. If that were the tort law,104 the class plaintiffs would
satisfy the Iqbal standard simply by alleging that they purchased a defendant’s
cigarettes, became addicted, and suffered injury as a result. That is precisely what
they have been allowed to do; they neither allege in their complaints nor proffer
evidence that the defendants wrongful conduct caused their injuries. Even under
this scenario, however, if a defendant moved to dismiss a claim under Rule
103
See supra Part II.B.
104
The Florida Supreme Court later confirmed in Douglas III that it had created such a
law in Engle III. See Douglas III,
110 So. 3d at 429
(When a plaintiff “prov[es] that addiction to
the Engle defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged,”
“injury as a result of the Engle defendants’ conduct is assumed.”). As I explain later, this law is
unconstitutional. See infra note 141 and accompanying text.
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12(b)(6), the court would have to determine whether Engle III actually
implemented such a change in substantive tort law—that it relieved the class
plaintiffs of the burden of proving injury causation. That determination, in turn,
would hinge on a review of the Engle proceedings.
In contrast to the plaintiffs’ deficient complaints, the Engle defendants’
answers have been pleaded in accordance with the Federal Rules of Civil
Procedure. Those answers admit or deny the plaintiffs allegations and assert
affirmative defenses. Below, I provide RJR’s answer from Brown I as a template
of a typical Engle-defendant answer. The answer begins with a Preliminary
Statement, which is followed by a response to each of the amended complaint’s
numbered paragraphs and thirty-four affirmative defenses.105
PRELIMINARY STATEMENT
...
Reynolds contends that the Florida Supreme Court’s decision
contains several errors of law and denies the Engle defendants their
due process rights.
...
First, the Florida Supreme Court invalidated certain Phase I
findings as being “nonspecific” and “inadequate to allow a subsequent
jury to consider individual questions of reliance and legal cause.” See
Engle [III], 945 So. 2d at 1246. The preserved Engle Phase I findings,
105
Those affirmative defenses included failure to state a claim for relief and federal
preemption. Answer, Defenses, and Jury Demand of Defendant R.J. Reynolds Tobacco Co. at
20–21, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-00761).
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however, suffer from the same deficiencies. Those findings are also
so generalized and nonspecific that they are inadequate to support an
individualized determination of essential issues such as liability, legal
causation, and damages in this or any other subsequent individual
action. Nothing in the Phase I verdict identifies the misconduct
underlying the jury’s findings. Giving preclusive effect to these
findings in this or any other individual action would subject
defendants to liability for conduct that no one can determine the
Engle Phase I jury found to be tortious, thereby violating Florida law
and denying defendants due process and a fair trial. Moreover,
applying these generic findings in this or any other individual action
would mean no jury will make specific findings regarding these issues
as they relate to these Plaintiffs and/or Plaintiffs’ Decedents, thereby
depriving defendants of their Seventh Amendment right to a trial by
jury in this action. Specifically, the preserved Engle Phase I findings
are deficient for the following reasons:
Engle Phase I findings numbers 3 (Strict Liability—that the
defendants placed cigarettes on the market that were defective
and unreasonably dangerous) and 6 (Breach of Implied
Warranty—that all of the defendants sold or supplied cigarettes
that were defective in that they were not reasonably fit for the
uses intended) are deficient because they do not identify the
product(s), defect(s), or manufacturing dates, brands, types, or
designs of cigarettes found to be defective. Accordingly, no
subsequent court or fact finder can determine whether any
product, brand, type, or design used by a particular plaintiff
was found defective (or not defective) by the Engle jury or
whether any such design characteristic found defective by the
Engle jury caused these Plaintiffs’ Decedents’ injuries or any
other plaintiff’s injury. . . .
The Florida Supreme Court rejected Engle Phase I findings
numbers 4 (Fraud and Misrepresentation) and 5 (Civil
Conspiracy—Misrepresentation) because “fraud” was too
individualized a claim to allow the finding to be applied in
subsequent actions. Engle Phase I findings numbers 4(a)
(Fraud by Concealment—that the defendants 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
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addictive nature of smoking cigarettes) and 5(a) (Civil
Conspiracy—Concealment—that the defendants agreed to
conceal or omit information regarding the health effects of
cigarette smoking or the addictive nature of cigarette smoking
with the intention that smokers and the public would rely on
this information to their detriment) suffer from the same
deficiency. Findings 4(a) and 5(a) do not identify what
information was found to have been misrepresented or
concealed, or the date(s) that such information was
misrepresented or concealed. Therefore, no subsequent court or
fact finder can determine whether a particular plaintiff relied
upon a statement or omission found tortious by the Engle jury
or whether any statement or omission found to be tortious by
the Engle jury was a legal cause of injury to the plaintiff. . . .
Engle Phase I finding number 7 (Breach of Express Warranty—
that all of the defendants sold or supplied cigarettes that, at the
time of sale or supply, did not conform to representations of
fact made by said defendants) is deficient because it does not
identify the specific representations of fact, what defendant
made the representations, when the representations were made,
the product(s), brands, or time of sale of the cigarettes that did
not allegedly conform to representations of fact, or how the
cigarettes did not conform to those representations as
determined by the Engle jury. Thus, no subsequent court or
fact finder can determine whether any particular plaintiff heard
any specific representations of fact or purchased cigarettes in
reliance upon those representations of fact, whether any
particular plaintiff’s cigarettes did not conform to the specific
representations of fact, or whether any breach of express
warranty as determined by the Engle jury was a legal cause of
injury to a particular plaintiff. . . .
Engle Phase I finding number 8 (Negligence—that the
defendants failed to exercise the degree of care which a
reasonable cigarette manufacturer would exercise under like
circumstances) is deficient because it does not identify the
negligent conduct, or whether it was based on a failure to warn
or negligent design. No subsequent court or fact finder can
determine whether the acts or omissions alleged by these
Plaintiffs or any other whether any conduct found to be
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negligent by the Engle jury was a legal cause of injury to a
particular plaintiff.
Second, the Engle Phase I findings cannot be given preclusive
effect in this or any other subsequent individual action because res
judicata requires a judgment on the merits that resolves claim or cause
of action. The Engle Phase I findings did not determine liability and
do not constitute a judgment that resolved any claim or cause of
action.
Third, application of the Engle Phase I findings in this or any
other subsequent individual action would violate the prohibitions set
forth in the Seventh Amendment to the United States Constitution and
Article I, § 22 of the Florida Constitution against re-examination by
one jury of issues decided by another jury because the generic and
nonspecific nature of those findings necessarily requires a subsequent
jury to reexamine the Phase I findings to determine what conduct the
Engle jury determined was tortious.
Fourth, the Engle Phase I findings cannot be used as a basis for
determining punitive damages because the Phase I findings do not
identify the conduct that the Engle jury found to be tortious or
unlawful, and due process requires that punitive damages be based
upon the wrongful conduct causing the injury to the plaintiff.
Fifth, the Florida Supreme Court retroactively changed the
basis for class certification from Rule 1.220(b)(3) to Rule
1.220(d)(4)(A), without allowing the defendants to argue the
impropriety of certifying the class under Rule 1.220(d)(4)(A), thereby
depriving defendants of their due process right to notice and an
opportunity to be heard concerning the proper procedure for having
the jury arrive at sufficiently specific Phase I findings.
Answer, Defenses, and Jury Demand of Defendant R.J. Reynolds Tobacco Co. at
2–7, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv-00761) (emphasis added).
In deciding the preclusion issue, the District Court, sitting as a recognizing
court, and the parties drew on Florida’s res judicata doctrines, claim and issue
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preclusion. In briefing the preclusion issue, plaintiffs’ counsel argued that the
Engle III Court issued four implied holdings. The first three holdings relate to the
tort claims pleaded in the class action complaint. The fourth relates to the duty of
recognizing trial courts in progeny cases.
Plaintiffs first argued that Engle III, by invoking “res judicata”—which the
plaintiffs interpreted as claim preclusion—implicitly held that the Phase I findings
established the elements of the plaintiffs’ tort claims.106 Plaintiffs Response to
Tobacco’s Rule 16(c) Motion at 4, Brown I,
576 F. Supp. 2d 1328
(No. 3:07-cv- 00761). Relatedly, the plaintiffs argued, the Engle III Court also implicitly held that the Phase I findings foreclosed all of the tobacco companies’ defenses to the plaintiffs’ tort claims.107 Seeid.
(“The [Phase I] jury is . . . conclusively presumed
to have considered all issues related to the claims of defect, negligence, conspiracy
to defraud, and the other counts.”). Defendants could, of course, still contend that
a plaintiff was not a class member—because, for example, she was not addicted—
that her disease was not caused by smoking, that she was comparatively negligent,
106
Those claims included strict liability, breach of express warranty, breach of implied
warranty, conspiracy to fraudulently conceal, fraudulent concealment, and negligence.
107
It held this by relieving plaintiffs of their burden of (1) identifying the unreasonably
dangerous defect(s) and tortious conduct that caused their harm and (2) proving that such
defect(s) and tortious conduct caused their harm. With Engle III predetermining those issues,
class members had nothing left to litigate except the issues of addiction, damages, and
comparative fault, the resolution of which would turn in large part on the credibility of the
smoker’s testimony. As I detail below, the Florida Supreme Court later endorsed this
interpretation of Engle III. See Douglas III,
110 So. 3d at 429
(When a plaintiff “prov[es] that
addiction to the Engle defendants’ cigarettes containing nicotine was a legal cause of the injuries
alleged,” “injury as a result of the Engle defendants’ conduct is assumed.”).
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and that her damages should be less than those demanded. Id. at 19. In sum, the
plaintiffs argued, Engle III held that progeny trials would be “‘damages’ trials”
rather than causation trials; plaintiffs had no need to prove that their injury was
caused by a defendant’s tortious conduct. Id. Instead, as plaintiffs argued Engle
III also held, the only issue of causation the plaintiffs needed to establish was “that
smoking cigarettes caused a plaintiff’s particular injury.”108 Id. (emphasis in
original).
Finally, the plaintiffs also argued that by commanding recognizing trial
courts to give the Phase I findings res judicata effect, the Engle III Court was
informing those courts that it had predetermined the preclusive effect of the Phase I
findings. See id. at 13 (“We know—from Engle itself—that Florida law permits a
verdict of this type to be given res judicata effect.” (emphasis in original)). Thus,
under Florida law, the plaintiffs contended, recognizing trial courts no longer had
any business evaluating whether the elements of preclusion—including the final-
judgment and actually decided requirements109—had been satisfied or whether due
108
Under this interpretation of Engle III, later endorsed by the Florida Supreme Court in
Douglas III, class members could have limited their allegations in their complaints to these: (1)
the plaintiff smoked the Engle defendant’s cigarettes, (2) the plaintiff became addicted, and (3)
the smoking caused a disease. The substantive law that Engle III / Douglas III created made it
unnecessary to allege one of the six Engle III-approved torts. Why? Because the Engle III /
Douglas III law empowered plaintiffs to hold defendants liable simply by proving class
membership—addiction and smoking-related injury. Proving addiction was easy—plaintiffs
merely had to present enough evidence to survive a motion for directed verdict. Thus, alleging
that the defendant had committed a specific tort law violation was mere window dressing.
109
These requirements are discussed in greater detail above. See supra Part II.A.
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process had been afforded to Engle defendants in the rendering court. See id. at
12–13 (“[I]t is the law of Florida, deemed so by Florida’s highest court, that
whatever Phase I can be called or labeled, it is sufficient to be the basis of claims
preclusion.” (emphasis in original)). If due process had been denied, so be it.
Before it addressed the preclusive effect that should be afforded to the Phase
I findings, the District Court had to decide a preliminary question concerning its
jurisdiction. The plaintiffs argued that the Rooker-Feldman doctrine110 deprived
the Court of jurisdiction to “independently review[] the state court rulings.” Brown
I,
576 F. Supp. 2d at 1334
. That is, the Court could not entertain the defendants’ argument that because it was “impossible to know what allegations formed the basis of each [Phase I] finding, affording preclusive effect to the general Phase I findings would be an arbitrary application of the common law rules of preclusion” and a denial of due process of law.Id. at 1344
. Due to the lack of jurisdiction, the
plaintiffs continued, the Court had to apply preclusion without evaluating the due
110
“The Rooker-Feldman doctrine prevents the lower federal courts from exercising
jurisdiction over cases brought by ‘state-court losers’ challenging ‘state-court judgments
rendered before the district court proceedings commenced.’” Lance v. Dennis,
546 U.S. 459, 460
,126 S. Ct. 1198, 1199
,163 L. Ed. 2d 1059
(2006) (per curiam) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,544 U.S. 280, 284
,125 S. Ct. 1517
, 1521–22,161 L. Ed. 2d 454
(2005)).
125
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process implications of doing so. Id. at 1334. The District Court rejected the
plaintiffs’ arguments and held Rooker-Feldman inapplicable.111
Next, the Court considered what preclusive effect it should give to the Phase
I findings. The defendants argued that it was “apparent that the Florida Supreme
Court intended that the findings function as issue preclusion (or collateral estoppel)
in subsequent proceedings,” id. at 1338, but that using the findings to establish
their liability in the instant case “would be an arbitrary application of the common
law rules of preclusion” and thus would deny them due process. Id. at 1344–45.
The plaintiffs’ response was that “the Engle findings should act as claim preclusion
(or res judicata) since the Supreme Court of Florida explicitly used the legal term
‘res judicata’ in its decision,” and the defendants had received all the process they
were due in the Engle proceedings. Id. at 1338.
The Court considered the plaintiffs’ argument “problematic.” Id. at 1339.
First, the Florida Supreme Court, as the
rendering court . . . may not decide the preclusive effect of its own
judgments. It is the duty of the second trial court—which knows both
what the earlier finding was and how it relates to a later case—to
111
The District Court recognized that the Rooker-Feldman doctrine “deprives a district
court of its subject matter jurisdiction to entertain claims that a final state court judgment violates
the federal rights of the state court loser,” but held the doctrine inapplicable. Id. at 1336. It
made that determination because Rooker-Feldman only applies where “a state court loser files a
mirror image case in federal court invoking the federal court’s federal question jurisdiction,
28 U.S.C. § 1331
, asking the federal court to void or modify a state court judgment on grounds that
it is unconstitutional.” Id. at 1337.
126
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independently determine what preclusive effect a prior judgment may
be given.112
Id. at 1339 (citations omitted). “Second, as acknowledged by the Florida Supreme
Court, the Phase I jury verdict did not establish liability as to any Defendant.” 113
112
The District Court was adamant about not allowing the Florida Supreme Court to
usurp its role as a recognizing court, devoting a long paragraph to the independence to which
recognizing courts are entitled:
Plaintiffs contend that this Court need not determine which preclusion doctrine
applies because the Florida Supreme Court's announcement that the Phase I
findings serve as “res judicata” forecloses the issue. This argument is problematic
in several respects. First, as a general proposition, the rendering court, or parallel
court system, may not decide the preclusive effect of its own judgments. It is the
duty of the second trial court—which knows both what the earlier finding was and
how it relates to a later case—to independently determine what preclusive effect a
prior judgment may be given. See Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367, 396
,116 S. Ct. 873
,134 L. Ed. 2d 6
(1996) (Souter, J., concurring in
part, dissenting in part); Midway Motor Lodge v. Innkeepers' Telemanagement &
Equip. Corp.,
54 F.3d 406, 409
(7th Cir.1995) (“In the law of preclusion . . . the
court rendering the first judgment does not get to determine that judgment's
effect; the second court is entitled to make its own decision.”); Teamsters Local
282 Pension Trust Fund v. Angelos,
762 F.2d 522, 525
(7th Cir.1985)
(Easterbrook, J.) (same); see 18 Charles Alan Wright et al., Federal Practice and
Procedure § 4413 (2d ed. 2002) (noting “general rule that a court cannot dictate
preclusion consequences at the time of deciding a first action,” except in limited
cases where it seeks to limit the decision's preclusive effect). Recognizing this
principle, Florida courts have required that parties seeking to assert either claim
preclusion or issue preclusion as a defense bear the burden of demonstrating that
the doctrine applies to the subsequent litigation. Campbell v. State,
906 So. 2d 293, 295
(Fla. 2d DCA 2004); State St. Bank & Trust Co. v. Badra,765 So. 2d 251, 253
(Fla. 4th DCA 2000) (finding that party claiming benefit of res judicata
in second proceeding bears the burden of proving that the claim was previously
adjudicated); Meyers v. Shore Indus., Inc.,
597 So.2d 345, 346
(Fla. 2d DCA
1992) (finding that party asserting collateral estoppel bears burden of
demonstrating its applicability).
Brown I, 576 F. Supp. 2d at 1339–40.
113
The Supreme Court did not explicitly acknowledge this as a holding. It merely quoted
the Third District in Engle II: “[T]he Phase I jury ‘did not determine whether the defendants
were liable to anyone.’” Engle III, 945 So. 2d at 1263 (emphasis in original) (quoting Engle II,
853 So. 2d at 450
). The Third District made this comment in addressing the Phase II-B award of
punitive damages. The award was premature, the Third District said, because the tobacco
127
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Id. at 1340. Thus, “the Phase I findings did not serve to merge the claims asserted
by Plaintiffs into an enforceable judgment” against the tobacco companies.114 Id.
Although claim preclusion was not viable due to the absence of a final
judgment, the District Court assessed whether plaintiffs could successfully assert
issue preclusion. Id. In conducting its assessment, the Court performed its
recognizing-court duties of evaluating the due process implications of preclusion
and determining whether the party asserting preclusion had carried the burden of
proving its elements.115 Id. at 1340–47. Issue preclusion, the Court determined,
could not be invoked because neither its Florida-law nor constitutional
requirements had been satisfied.
The Court found that the plaintiffs had not carried their burden of proving
issue preclusion’s actually decided element, a requirement that carries
companies had not been held liable to any of the class members except the three representative
plaintiffs. Engle II, 853 So. 2d at 452–53.
114
Claim preclusion carries a strict finality-of-judgment requirement. Restatement
(Second) of Judgments § 13 cmt. g (1982). Indeed, that “claim preclusion applies only where
there has been a prior final ‘judgment on the merits’” has long been a “cardinal rule” in Florida.
Douglas III,
110 So. 3d at 438
(Canady, J. dissenting) (quoting Juliano,801 So. 2d at 105
) (citing Kimbrell v. Paige,448 So. 2d 1009, 1012
(Fla. 1984)). In the context of claim preclusion, the Florida Supreme Court has endorsed as “most comprehensive,” a definition of “[a] judgment on the merits” as “one based on the legal rights and liabilities of the parties.” Allie v. Ionata,503 So. 2d 1237, 1241
(Fla. 1987) (emphasis added) (citing 46 Am. Jur. 2d Judgments § 74 (1964)). In addition, claim preclusion has traditionally required a final judgment that “leav[es] nothing more to be done in the cause except execution.” Id. at 1240. This stringent final-judgment requirement comports with common sense: claim preclusion “should be applied so as to give rather than deny justice,” 18 Wright, supra, § 4415 n. 1 (citation omitted), and barring a cause of action that was never fully litigated unjustly “blockades [an] unexplored path[] that may lead to the truth.” Felsen,442 U.S. at 132
,99 S. Ct. at 2210
.
115
See supra Part II.B.
128
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constitutional significance.116 According to the Court, the “jury form, and any
verdict delivered from the form” were “flaw[ed]” and “nonspecific[]” such that
“this Court ‘would have to embark on sheer speculation’ to determine what issues
were actually decided during the Phase I trial and how to apply them to the
individual claims before this Court.” Id. at 1342 (quoting Hoag v. New Jersey,
356 U.S. 464, 472
,78 S. Ct. 829, 829
,2 L. Ed. 2d 913
(1958)). The Court simply could not determine “what acts or omission committed by what Defendant breached what duty to which Plaintiff causing what injury.”Id.
Accordingly, to preclude defendants from litigating such issues would violate the Supreme Court’s instruction “that courts not apply the doctrine of issue preclusion to prior determinations unless the court ‘is certain that the precise fact was determined by the former judgment.’”Id.
at 1345 (quoting De Sollar v. Hanscome,158 U.S. 216, 221
,15 S. Ct. 816
,39 L. Ed. 956
(1895)).
116
A party may only assert issue preclusion with respect to issues that were actually
litigated and determined in the first lawsuit. Florida Bar v. Clement,
662 So. 2d 690
, 697–98
(Fla. 1995) (per curiam). Just as claim preclusion’s final-judgment requirement helps ensure that
parties have a fair opportunity to fully litigate a cause of action, issue preclusion’s actually
decided requirement ensures that parties have at least one opportunity to fully litigate each issue.
Given the actually decided requirement’s role in ensuring parties’ opportunity to litigate,
the Supreme Court has noted that requirement’s constitutional significance. As the Supreme
Court held in Fayerweather v. Ritch,
195 U.S. 276
,25 S. Ct. 58
,49 L. Ed. 193
(1904), a recognizing court may not give preclusive effect to an issue determination unless the issue was “distinctly put in issue . . . the parties presented their evidence, or at least had the opportunity to present it, and . . . the question was decided” in the first suit.Id. at 299
,25 S. Ct. 58, 64
(emphasis added).
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Moreover, “since it is impossible to determine the precise issues decided by
the Phase I jury . . . the traditional elements of issue preclusion—e.g., identicality,
criticality, and necessity to the prior determination—cannot be satisfied.” Id. at
1346. Accordingly, the Court concluded that it was “foreclosed from applying the
Phase I findings as establishing any part of Plaintiffs’ claims.” Id. (citations
omitted).
Because the plaintiffs were unsuccessful in invoking claim and issue
preclusion, the Engle defendants had the right to deny that their tortious conduct
caused the plaintiffs’ injuries. In its order rejecting the plaintiffs’ arguments that
Rooker-Feldman precluded it from deciding the due process issue the companies
had presented, the District Court certified that its rulings qualified for interlocutory
appeal under
28 U.S.C. § 1292
(b). Id. at 1348. We agreed and granted the parties’ application to appeal. Notice of Interlocutory Appeal at 1, Brown I,576 F. Supp. 2d 1328
(No. 3:07-cv-00761). Meanwhile, further proceedings in the Engle- progeny cases in the Middle District were stayed pending our decision. E.g., Order at 1–2, Waggoner v. R.J. Reynolds Tobacco Co.,835 F. Supp. 2d 1244
(2011) (No.
3:09-cv-10367).
* * *
Although Engle III sought to predetermine preclusion such that recognizing
courts would not consider whether the elements of preclusion had been satisfied or
130
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whether applying preclusion would deny due process, the Brown I Court firmly
rejected this attempted usurpation of its recognizing-court responsibilities—“the
rendering court,” the Court affirmed, “may not decide the preclusive effect of its
own judgments.”117 Brown I,
576 F. Supp. 2d at 1339
. In performing its
recognizing-court duties, the Court found that under both Florida law and the U.S.
Constitution, plaintiffs could invoke neither claim or issue preclusion.
B. In Brown II, We Upheld the District Court’s Decision as a Recognizing
Court to Apply Florida’s Traditional Issue-Preclusion Doctrine to the Phase
I Findings
On appeal, we affirmed the District Court’s rejection of the plaintiffs’
Rooker-Feldman argument for the reasons that Court gave and in light of the
Supreme Court’s recent decision in Exxon Mobil Corp. v. Saudi Basic Indus.
Corp.,
544 U.S. 280
,125 S. Ct. 1517
,161 L. Ed. 2d 454
(2005).118 Brown II,611 F.3d at 1330
.
117
Nothing in the District Court’s dispositive order indicates that the Court understood
Engle III’s res judicata instruction as a revision of Florida preclusion law that would only apply
in progeny cases. Rather, the District Court applied Florida preclusion law as it stood before
Engle III. As I detail above, Florida law that delegates to recognizing courts the task of
determining the preclusive effect of prior adjudications is fixed by U.S. Supreme Court
precedent. See Hansberry v. Lee,
311 U.S. 32
,61 S. Ct. 115
,85 L. Ed. 22
(1940) (“[W]hen the
judgment of a state court, ascribing to the judgment of another court the binding force and effect
of res judicata, is challenged for want of due process it becomes the duty of [the recognizing
court] to examine the course of procedure in both litigations.”).
118
There, the Supreme Court
131
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We also affirmed the District Court’s rejection of the plaintiffs’ argument
that claim preclusion, rather than issue preclusion, was what the Engle III Court
had in mind when it used the term “res judicata.” Although “the plaintiffs argued
before the district court and suggested in their brief to this Court that the Florida
Supreme Court was referring to claim preclusion in Engle III,” the plaintiffs, at
oral argument “clarified that their position [was] that the Phase I approved findings
are entitled to issue preclusive effect.”
Id.
at 1333 n.7. “[I]f the plaintiffs had
continued to argue for claim preclusion, we would have rejected that position”
because claim preclusion’s final-judgment requirement had not been satisfied. Id.
at 1332, 1333 n.7.
After the plaintiffs stipulated that claim preclusion was not viable, we
evaluated the viability of issue preclusion. “Issue preclusion,” we observed,
“operates more narrowly to prevent re-litigation of issues that have already been
decided between the parties in an earlier lawsuit.” Id. at 1332 (citations omitted).
Like the District Court before us, we recognized that Florida’s doctrine of issue
clarified the [Rooker-Feldman] doctrine and narrowed its application, noting that
“the doctrine has sometimes been construed [by lower federal courts] to extend
far beyond the contours of the Rooker and Feldman cases.” [Exxon, 544 U.S.] at
283,
125 S. Ct. at 1521
. The Court held that it should be “confined to cases of the
kind from which the doctrine acquired its name: cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before
the district court proceedings commenced and inviting district court review and
rejection of those judgments.”
Id. at 284
, 125 S. Ct. at 1521–22.
132
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preclusion carried an actually decided requirement.119
Id.
(citing Rohan v. Trakker Maps, Inc.,633 So. 2d 1176, 1177
(Fla. Dist. Ct. App. 1994). Unlike the District
Court, however, we did not take any position as to whether that requirement was
required under the U.S. Constitution, “because,” we assumed,120 “under Florida
law the findings could not be used” “to establish facts that were not decided by the
[Phase I] jury.” Id. at 1334.
The parties’ dispute, therefore, came down to what the Phase I jury decided.
The defendants argued that the jury decided only what it indicated on the Phase I
verdict form—“those [facts] framed by the specific factual issue set out in the
questions posed to them on the verdict form.” Id. The plaintiffs, on the other
hand, advocated a more expansive reading of the Phase I findings that relied on
“flesh[ing] out” “the jury’s answers” “using the record as a whole” and “going
outside the record.” Id. at 1335. This process of “fleshing out,” the plaintiffs
contended, would lead the Court to conclude that when the jury answered “yes” to,
for example, the verdict-form question about defendants “plac[ing] cigarettes on
the market that were defective and unreasonably dangerous,” it meant that “all
cigarettes the defendants sold were defective and unreasonably dangerous.” Id.
(emphasis added).
119
The District Court below had referred to this requirement as the “actually decided”
requirement. Brown I,
576 F. Supp. 2d at 1342
.
120
We assumed that Engle III had not arbitrarily eliminated the actually decided
requirement from Florida’s issue-preclusion doctrine for purposes of Engle-progeny cases only.
133
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Though we welcomed the plaintiffs to scour the trial record—without
looking beyond it—for proof of what the jury determined, we were skeptical that
such proof existed.
Id.
“[T]he plaintiffs have pointed to nothing in the record, and there is certainly nothing in the jury findings themselves,” we observed, “to support [the plaintiffs’] factual assertion” that the Phase I jury found that defendants’ tortious conduct tainted all cigarettes.121Id.
With the dispute over claim and issue preclusion resolved, and the due
process issue avoided, we remanded the case to the District Court to provide
plaintiffs an opportunity to prove,122 inter alia, that “the jury’s [unreasonably-
121
Against all odds, the Majority now claim to have discovered something we overlooked
in Brown II. They, like the Douglas III Court, invent a quote in the jury instructions, Ante at 22,
discuss the “common thrust” of the evidence, id. at 7, and conclude that the “Engle jury actually
decided common elements of the negligence and strict liability of R.J. Reynolds and Philip
Morris.” Id. at 20.
122
We made it clear that Florida law allocated the burden of proof to the plaintiffs:
Under Florida law the issue preclusion standard requires the asserting party to
show with a “reasonable degree of certainty” that the specific factual issue was
determined in its favor. The entire trial record may be considered for that
purpose, although the burden is on the asserting party to point to specific parts of
it to support its position.
Brown II,
611 F.3d at 1335
(emphasis added). The following cases will demonstrate that
the plaintiffs were never able to meet their burden of the proving that the jury actually
decided these issues. Nevertheless, the Majority relieve the plaintiffs of this burden and
purports to prove what the plaintiffs never could.
134
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dangerous-defect finding] . . . establishes that all of the cigarettes that the
defendants sold” “were defective and unreasonably dangerous.”123
Id. at 1336
.
* * *
Brown II, as a recognizing-court decision, became the Eleventh Circuit’s
controlling precedent regarding the preclusive effect of Engle III in the litigation of
progeny cases in the district courts. The Phase I findings resolved factual issues,
not causes of action.
Id. at 1333
(“[F]actual issues and not causes of action were
decided in Phase I.”). Absent evidence that the Phase I jury decided more facts
than those it disclosed in its findings—which we were skeptical existed, but
welcomed plaintiffs to locate—plaintiffs could not rely upon the Phase I findings
to identify particular cigarette defect(s) and tortious conduct, let alone prove that
123
Although this question is not altogether irrelevant, it misses the most relevant point.
Even if plaintiffs could establish inter alia that all cigarettes were defective, unreasonably
dangerous, and negligently produced, they would still have to identify the unreasonably
dangerous defect(s) and negligent-and-otherwise-tortious conduct to prove that such defect(s)
and conduct caused their harm. Nevertheless, the Majority conclude that the Phase I jury
determined that the defendants acted “wrongfully toward all of the class members,” Ante at 21,
and that “all cigarettes the defendants placed on the market were defective and unreasonably
dangerous.”
Id.
(emphasis in original), without ever revealing what the defect or negligent
conduct is that the jury supposedly identified. Thus, with no defect or negligent conduct to point
to, it was impossible for Mr. Graham to prove that the defendant’s tortious conduct caused his
wife’s harm. Recognizing this fact, the District Court relieved Mr. Graham of this burden. The
Majority straightforwardly acknowledge that a class plaintiff need only prove that “smoking was
the proximate cause of her injury,” id. at 28, rather than proving that the defendant’s tortious
conduct was the proximate cause of her injury, as is required in all other tort cases in Florida and
the rest of the United States. Again, I have pointed out that the Supreme Court has explicitly
held that a state law such as this that establishes liability once a plaintiff merely proves that her
injury resulted from the defendant’s conduct, rather than proving that the injury results from the
defendant’s tortious conduct, is arbitrary and violates due process. See infra note 141 and
accompanying text. Because the Majority cannot explain their clear violation of precedent, they
respond with silence.
135
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such defect(s) and conduct caused their harm. See id. at 1335 (“[T]here is certainly
nothing in the jury findings . . . to support [the plaintiffs’] factual assertion” “that
all cigarettes the defendants sold were defective and unreasonably dangerous.”).
By necessary implication, we held that a District Court judgment based solely on
the Phase I findings would deprive the defendant of its property without due
process of law.124
C. The Florida District Courts of Appeal Rejected Brown II on the Basis of
Engle III’s Instruction
Brown II was decided on July 22, 2010. After the mandate issued, the stays
were lifted in twelve “lead” Middle District of Florida cases, including Graham.125
The Court in Waggoner v. R.J. Reynolds Tobacco Co.,
835 F. Supp. 2d 1244
(M.D. Fla. 2011), was selected as the recognizing court for “determin[ing] which Engle facts should be given preclusive effect under Florida law as the Eleventh Circuit had outlined it” in Brown II.126Id. at 1253
. The Waggoner Court was unable to
undertake the assignment, however, until June 2011.
124
Litigants enjoy a “due process right to fully and fairly litigate each issue in their case.”
duPont,
771 F.2d at 880
; see also Burson,402 U.S. at 542
,91 S. Ct. at 1591
(“It is a proposition
which hardly seems to need explication that a hearing which excludes consideration of an
element essential to the decision . . . does not meet [the requirements of the Due Process
Clause].”).
125
The District Judges of the Middle District took this action jointly.
126
Plaintiffs bore the burden of proof on this question. Although, pursuant to Brown II,
611 F.3d at 1335
, the plaintiffs could look at the entire record, they would presumably focus on
136
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On June 2, 2011, the lawyers representing the parties in the twelve lead
cases appeared before the District Court for a Rule 16(c)127 management
conference. Id. at 1256. In the interim, between the issuance of the mandate in
Brown II and the commencement of the Rule 16(c) conference, the First District
Court of Appeal, in Martin II,
53 So. 3d 1060
,128 had reached a preclusion holding
contrary to Brown II’s. Before the Rule 16(c) conference adjourned, the Fourth
District Court of Appeal, in Jimmie Lee Brown II agreed with Brown II’s analysis,
but reached the same result as the First District’s in Martin II, albeit with serious
reservations as to whether its decision would deny the tobacco companies of their
property without due process of law.
1. The Martin I Circuit Court Concluded That Engle III’s Instruction
Required It to Hold the Defendants Liable if the Plaintiff Simply
Proved Class Membership Irrespective of the Phase I Findings
The Martin case was brought on October 24, 2007, in the Circuit Court for
Escambia County, Florida. Beverly Martin sued RJR, Philip Morris USA, Inc.,
and Lorillard Tobacco to recover for the death of her husband, Benny Martin.
those aspects of the record that demonstrated what the Phase I jury decided: the Court’s jury
instructions, which informed the jury of the elements of the plaintiffs’ tort claims; the special
interrogatories, which asked the jury to answer “yes” or “no” to specific factual questions; and
the jury’s answers to the interrogatory questions.
127
See Fed. R. Civ. P. 16(c). The conference lasted until December 20, 2011.
128
The opinion in Martin issued on December 14, 2010. Rehearing was denied on
February 11, 2011.
137
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Martin II, 53So. 3d at 1064 n.2. In her first amended complaint,129 she asserted
four of the Engle III-approved causes of action: strict liability, negligence, fraud
by concealment, and conspiracy to commit fraud by concealment.
Id. at 1065
. She also sought punitive damages.Id.
Her tort claims and the prayer for punitive damages were based solely on the “Common Liability Findings” asserted in the Brown I complaint. Amended Complaint at 4, Brown I,576 F. Supp. 2d 1328
(No. 3:07-cv-00761). Those findings, the complaint alleged, were sufficient to “conclusively establish” her tort claims. First Amended Complaint at ¶¶ 29–61, Martin v. R.J. Reynolds Tobacco Co. (Martin I), No. 2007-CA-2520 (Fla. Cir. Ct. 2009),2009 WL 6492304
..
The defendants’ answers to the amended complaint raised the same due
process objection as their answers did in Brown I. Philip Morris USA Inc.’s
Answer, Martin I (No. 2007-CA-2520),
2008 WL 6722672
at *12. On August 25,
2008, their attorneys and those representing Engle defendants in the other progeny
cases pending in the Escambia County Circuit Court jointly moved the Circuit
Court, pursuant to Florida Rule of Civil Procedure 1.200,130 to determine, as a
129
The first amended complaint was filed on August 20, 2008. First Amended
Complaint, Martin v. R.J. Reynolds Tobacco Co. (Martin I), No. 2007-CA-2520 (Fla. Cir. Ct.
2009),
2009 WL 6492304
.
130
Florida Rule of Civil Procedure 1.200 gives trial courts authority to schedule case
management conferences “to coordinate the process of the action if . . . complex litigation factors
. . . are present” and “determine other matters that may aid in the disposition of the action.” Fla.
R. Civ. P. 1.200 (a)(3), (a)(13).
138
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recognizing court, what the Florida Supreme Court meant when it declared that the
Phase I findings would be given “res judicata effect” in progeny cases.
Defendants’ Rule 1.200 Motion at 1–3, In re: Engle Progeny Cases Tobacco
Litigation (Fla. Cir. Ct. Feb. 24, 2009) (No. 2008-CA-80000). The parties asserted
positions similar to those they asserted in Brown I. Id.; Order Denying
Defendants’ Rule 1.200 Motion at 1–3, In re: Engle Progeny Cases Tobacco
Litigation (No. 2008-CA-80000).
The Court ruled on the motion in an order entered on February 24, 2009.
Order Denying Defendants’ Rule 1.200 Motion, In re: Engle Progeny Cases
Tobacco Litigation (No. 2008-CA-80000). It could not say whether the Florida
Supreme Court had intended to invoke “res judicata, collateral estoppel, estoppel
by judgment, stare decisis, or some other mechanism.” Id. at 3. Whatever the
mechanism was, it was “unorthodox.” Id. at 2. The intended effect of the
mechanism, however, was clear: the Florida Supreme Court had intended to
facilitate rather than “void the class action litigation.” Id.at 3. The Phase I
findings “must [be] use[d]” even if they appeared useless. Id.
The Court’s Rule 1.200 ruling governed the trial in Martin I. All Ms. Martin
had to prove to hold RJR liable was Mr. Martin’s class membership—his addiction
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to an RJR cigarette and a smoking-related injury.131 Martin II,
53 So. 3d at 1066
.
Thus, the jury was not required to determine whether the cigarettes Mr. Martin
smoked were defective and unreasonably dangerous; whether RJR committed one
or more negligent acts that caused him to smoke; whether it concealed information
about the health effects or addictive nature of smoking that would have caused him
to stop smoking had he been aware of it; or whether any Engle defendant acted to
conceal such information pursuant to a conspiracy of which RJR was a member.132
131
The Majority argue, “Contrary to the dissent’s view, no tobacco company can be held
liable to any smoker without proof at trial that the smoker belongs to the Engle class, that she
smoked cigarettes manufactured by the company during the relevant class period, and that
smoking was the proximate cause of her injury.” Ante at 28 (emphasis in original) (citation
omitted). In arguing that my view differs from theirs on what must be proven, the Majority
neglect to consider the fact that the Engle class is defined as “[a]ll Florida citizens and
residents,” “and their survivors, who have suffered, presently suffer or have died from diseases
and medical conditions caused by their addiction to cigarettes that contain nicotine,” R.J.
Reynolds Tobacco Co. v. Engle,
672 So. 2d 39
, 40–42 (Fla. 3d Dist. Ct. App. 1996) (emphasis added), and thus requiring a progeny plaintiff to prove that she is a member of the class and smoked the defendants’ cigarettes—as I explain a progeny plaintiff must prove—is precisely the same as requiring the plaintiff to prove the three items the Majority list. The Florida Supreme Court has recently confirmed this. See R.J. Reynolds Tobacco Co. v. Ciccone,190 So. 3d 1028, 1031
(Fla. 2016) (“According to the framework for tobacco litigation established in Engle
[progeny litigation], [the plaintiff’s] case proceeded to a ‘Phase I’ trial, in which, if she
established Engle class membership, she would receive the benefit of res judicata effect of the
Engle jury’s ‘common core findings’ regarding the issue[] of liability.”). Additionally, the
Majority fail to recognize that their itemized list of issues a plaintiff must prove directly supports
my argument that a plaintiff need only prove that smoking was the proximate cause of her injury,
rather than proving that the defendant’s tortious conduct was the proximate cause her injury, as is
required in all other tort cases in Florida and every other state in the United States.
132
Under Martin II’s holding, the reasons that individual smokers chose to smoke are
superfluous to the determination of the tobacco companies’ liability. Many class members may
have smoked for a reason totally unrelated to the Engle defendant’s tortious conduct.
Nonetheless, Martin II’s conclusive presumption treats all class members as one, relieving all of
the burden of proving that the defendant’s tortious conduct caused their injury. It does not
matter what tort claim(s) the plaintiff chooses to assert, since each of the Engle III-approved
140
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Id.
at 1064–66; Jury Instructions, Martin I (No. 2007-CA-2520),2009 WL 2599305
. The jury found RJR liable on all four clams and assessed Ms. Martin’s damages at $5 million. Martin II,53 So. 3d at 1066
. That amount was reduced to $3.3 million based on the jury’s apportionment of fault.Id.
Ms. Martin was also awarded $25 million in punitive damages.Id.
RJR appealed the judgment.
2. The First District Court of Appeal in Martin II Agreed That Engle
III’s Instruction Required It to Hold the Defendants Liable to all Class
Members Irrespective of the Phase I Findings
The appeal was “the first . . . ‘Engle progeny’ case to reach a district court of
appeal following the Florida Supreme Court’s decision” in Engle III.
Id. at 1062
. The “crux” of RJR’s appeal, as the First District saw it, was “the extent to which an Engle class member can rely upon the findings from the class action when she individually pursues one or more Engle defendants for damages.”Id.
In other words, to what extent could Ms. Martin use the Engle findings to establish the elements of her claims?Id.
Reiterating its argument from previous cases, RJR
pointed out that the Phase I findings
facially prove only that RJR at some point manufactured and sold an
unspecified brand of cigarette containing an undefined defect; RJR
committed one or more unspecified negligent acts; RJR on some
occasion concealed unspecified information about the health effects of
smoking and the addictive nature of smoking; and RJR and several
other entities agreed to conceal said unspecified information.
claims is a key to the courthouse. Once there, all the plaintiff has to establish is that she is
addicted to the defendant’s cigarettes.
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Id.
Therefore, RJR contended, Ms. Martin should have been required to prove, and RJR should have been allowed to contest, that the brand of cigarettes Mr. Martin smoked was defective, unreasonably dangerous, and negligently produced.133Id.
Further, Ms. Martin should have been required to identify the particular conduct the jury deemed tortious and the particular product feature(s) the jury deemed defective and prove that such conduct and feature(s) caused Mr. Martin’s injury.Id.
Because the Circuit Court had simply presumed that RJR’s tortious conduct caused her husband’s injuries, it had violated RJR’s due process right to litigate essential elements of its case.134Id.
133
By the same token, Mrs. Martin should have been required to prove, and RJR should
have been allowed to contest, that Mr. Martin was injured by RJR’s concealment of information
and agreement to conceal information. I focus mainly on Mrs. Martin’s strict-liability and
negligence claims because they are the claims before us in this appeal.
134
Whether an Engle defendant’s tortious conduct caused any class member’s injury was
not an issue tried to the Phase I jury. None of the class plaintiffs, other than the class
representatives, testified at the Phase I trial, and the jury was not asked to specify unreasonably
dangerous defects or the way in which defendants failed to exercise due care. Under the original
trial plan, the issue of whether an Engle defendant’s product defect(s) and tortious conduct
caused a class member’s injury would not be decided until Phase III.
Because the Phase I findings did not specify unreasonably dangerous defects or tortious
conduct, and because causation was not litigated in Phase I, class members could not prove a
defendant’s liability under traditional tort law unless the parties were allowed to relitigate
conduct: Which brands were defective, unreasonably dangerous, and negligently produced? In
what ways were those brands defective and how had defendants breached their duty of care?
But Engle III made it clear that progeny courts were not supposed to entertain such
litigation. The only way, therefore, for plaintiffs to establish liability is if the traditional tort law
that had been in place at the beginning of the trial were replaced by law that presumed that (1)
every cigarette had an unreasonably dangerous defect and was negligently produced and (2) all
smoking-related injuries were caused by the manufacturer’s tortious conduct. In Douglas III, the
Florida Supreme Court confirmed that Engle III had indeed replaced traditional tort law,
implementing the conclusive presumptions plaintiffs would need to hold defendants liable. See
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The First District rejected RJR’s characterization of the Phase I findings. In
doing so, it did not look to the jury instructions or the special interrogatories.
Instead, it looked to the Engle Omnibus Order for interpretational assistance. In
that order, Judge Kaye, who had tried Phases I and II, determined that “the
plaintiff[s] ha[d] presented evidence that could support [the Phase I findings].”
Friedrich v. Fetterman & Assocs.,
137 So. 3d, 362, 365
(Fla. 2013) (emphasis added). In other words, “There was more than sufficient evidence at trial to . . . support the jury verdict.” But the First District cited the Omnibus Order, not for what the Phase I jury could have determined, but for what it did determine. That a properly instructed jury could have determined that the “findings encompassed all brands” was, to the Martin II Court, proof that the jury made such a determination. Id. at 1068. That a properly instructed jury could have “determined the defendants . . . breached their duty [to all class members] by [negligently] selling [defective] cigarettes” was proof that the jury determined that as well. Id. The First District implemented this strange sufficiency-of-the-evidence standard throughout.135 See, e.g., id. at 1069 (“[T]he record contains abundant evidence from which the jury Douglas III,110 So. 3d at 429
(When a plaintiff “prov[es] that addiction to the Engle
defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged,” “injury as a
result of the Engle defendants’ conduct is assumed.”).
135
By asking what the jury could have determined, rather than what it actually
determined, the Court created a conclusive presumption based on evidence in the record and not
a jury finding. The Court thereby denied RJR’s constitutional right to have a jury decide
essential factual issues. See infra note 142 and accompanying text.
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could infer Mr. Martin's reliance on pervasive misleading advertising campaigns
for the Lucky Strike brand in particular and for cigarettes in general.” (emphasis
added)).
Why did the First District, as a recognizing court, take upon itself the
plaintiff’s burden of proving what the Phase I jury decided? Why did it lighten
that burden from one of necessary inference136 to sufficiency of the evidence?
Why, in doing so, did it ignore the jury instructions and verdict form in favor of an
136
Determinations about what a jury actually decided must be made on the basis of
necessary inference. The Supreme Court made this clear in De Sollar v. Hanscome: “[I]f [the
instructions] left it open to the jury to find for the defendant upon either of the two propositions,
and the verdict does not specify upon which the jury acted, there can be no certainty that they
found upon one rather than the other” and preclusion is inappropriate.
158 U.S. 216, 222
,15 S. Ct. 816, 818
,39 L. Ed. 956
(1895); see also Fayerweather,195 U.S. at 302
,25 S. Ct. at 65
(When the basis upon which a judgment is rendered is unclear, it is “tantamount to a finding in
favor of the successful party of all facts necessary to sustain the judgment.” (emphasis added)).
In Brown II, we observed that Florida courts uphold this common-law protection:
[P]reclusive effect is not given to issues which could have, but may not have,
been decided in an earlier lawsuit between the parties. See, e.g., Acadia Partners,
L.P. v. Tompkins,
673 So. 2d 487
, 488–89 (Fla. 5th DCA 1996) (holding that
jury’s verdict “for [the defendant]” in a breach of contract action did not establish
the absence of breach because the jury was instructed that it could find for the
defendant if it concluded that the defendant had not breached the contract or if the
defendant proved an affirmative defense); Allstate Ins. Co. v. A.D.H., Inc.,
397 So. 2d 928
, 929–30 (Fla. 3d DCA 1981) (concluding that subcontractor could not
show that general contractor was at fault and therefore not entitled to
indemnification based on jury’s “undifferentiated general verdict finding [the
general contractor] ‘negligent’” in an earlier lawsuit; the jury could have
determined that the general contractor was at fault or vicariously liable);
Seaboard, 260 So. 2d at 864–65 (finding that general verdict “in favor of the
defendant” could have been based on jury's conclusion that the defendant was not
negligent or that the plaintiff was contributorily negligent); see id. at 865 (“[I]t is
impossible to ascertain with any reasonable degree of certainty as to what issue
was adjudicated in the former suit except to say that the jury found in favor of [the
defendant]. Such uncertainty as to the effect of the prior adjudication renders the
doctrine of collateral estoppel inapplicable.”).
611 F.3d at 1334
.
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inapposite ruling on a motion for directed verdict? The First District’s
interpretation of Engle III provides insight: RJR’s characterization of the Phase I
findings had to be rejected because it would “nullify” “the supreme court’s [Engle
III] decision” and “district courts of appeal do not have the prerogative to overrule
Florida Supreme Court precedent.”
Id.
at 1066–67 (citation omitted). Engle III
had predetermined the res judicata question, and that was good enough for the First
District, “[n]o matter the wording of the findings on the Phase I verdict form.” Id.
at 1067.
Although the First District perceived that the Florida Supreme Court wanted
it to preclude defendants’ defenses, it, like the Circuit Court in its Rule 1.200
order, could not tell which preclusion doctrine the Supreme Court had intended to
invoke. The First District purported to “find it unnecessary to distinguish
between” “issue preclusion versus claim preclusion.” Id. Nevertheless, the Court
expressly disavowed Brown II’s assertion that plaintiffs, in accordance with issue
preclusion’s actually decided requirement, had to “trot out the class action trial
transcript to prove applicability of the Phase I findings.”137 Id.
Recall that the plaintiffs in Brown II had stipulated that the Florida Supreme
Court had invoked issue, rather than claim, preclusion in Engle III. Brown II, 611
137
By process of elimination, then, had the First District opted for claim preclusion, or
was it hinting that it interpreted Engle III as devising an entirely new preclusion doctrine? Did
that new preclusion doctrine operate only in Engle-progeny cases?
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F.3d at 1333 n.7. Recall also that plaintiffs in that case had requested an
opportunity to “flesh out” the Phase I verdict form “using the record as a whole.”
Id. at 1335. Here, the First District rejected issue preclusion and its actually
decided requirement, because “[s]uch a requirement undercuts the supreme court’s
ruling in [Engle III].”138 Martin II,
53 So. 3d at 1067
.
In sum, the driving force behind the First District’s unusual analysis was its
interpretation of Engle III. It upheld the Circuit Court because that Court
“correctly construed Engle [III] and instructed the jury accordingly on the
preclusive effect of the Phase I findings.”
Id. at 1069
.
RJR petitioned the Florida Supreme Court for review, but the Court declined
in an opinion stating,
This cause having heretofore been submitted to the Court on
jurisdictional briefs and portions of the record deemed necessary to
reflect jurisdiction under Article V, Section 3(b), Florida Constitution,
138
Now, seven years later, the Majority assert that the Martin II Court had it wrong.
They explain that if the Martin II Court had simply been willing to use the record as a whole, and
pay closer attention to the “common thrust” of the evidence, Ante at 7, and the “unmodified
noun[s]” on the verdict form, id. at 23, it would have recognized that the actually decided
requirement did not “undercut[] the supreme court’s ruling in [Engle III],” Martin II,
53 So. 3d at 1067
, because the Phase I jury had in fact “actually decided common elements of the negligence
and strict liability of R.J. Reynolds and Philip Morris.” Ante at 20. According to the Majority,
not only did the Martin II Court err in failing to recognize on its own that the jury had actually
decided these issues, it erred in failing to recognize that the Florida Supreme Court had already
searched the record and determined that the jury actually decided these issues. See id. at 30
(“The Florida Supreme Court in Engle interpreted those findings to determine what the [Engle]
jury actually decided.”). Even though the Majority assume that the “‘actually decided’
requirement is a fundamental requirement of due process,” id. at 20, and that the Florida
Supreme Court had already discovered the treasure trove of useful jury findings, they conclude
that the Florida Supreme Court did not feel compelled to reveal its discovery and thus
accordingly declined RJR’s petition for review of Martin II’s constitutional error.
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and the Court having determined that it should decline to accept
jurisdiction, it is ordered that the petition for review is denied.
No motion for rehearing will be entertained by the Court.
R.J. Reynolds Tobacco Co. v. Martin,
67 So. 3d 1050
(2011) (Table). The U.S.
Supreme Court denied RJR’s petition for a writ of certiorari.
* * *
In entertaining RJR’s appeal, the First District faced a compelling
constitutional argument. As RJR contended, the plaintiff had invoked “the
doctrine of res judicata . . . to prevent any jury determination of the critical facts on
which [the plaintiff’s] claims turn.” Reply Brief of Appellant at 1, Martin II,
53 So. 3d 1060
(No. 1D09-4934). RJR had been precluded from contesting, and Ms.
Martin had been spared the burden of proving, that RJR’s tortious conduct caused
her late husband’s injury. The Phase I findings on which such expansive
preclusion had been premised plainly “[did] not establish that there was a defect in
the Lucky Strike cigarettes smoked by Mr. Martin, let alone one that caused his
death.” Id. at 2. Nor did the findings “establish any negligent conduct, concealed
information, or conspiratorial conduct that caused Mr. Martin’s death.” Id. The
First District knew this. It knew it because the Phase I jury was not tasked with
determining whether an Engle defendant’s conduct caused a class member’s injury.
That determination, according to the original trial plan and Engle III, would be
made by the progeny juries. But the First District also knew that Engle III, by
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declaring “res judicata,” had signaled or implicitly held that the Phase I findings
would assist class members in holding Engle defendants liable. See Martin II,
53 So. 3d at 1069
(“[W]e interpret the supreme court’s ruling in Engle to mean individual class plaintiffs, when pursuing RJR and the other class defendants for damages, can rely on the Phase I jury’s factual findings.”). The First District’s dilemma, then, was to either acknowledge the worthlessness of the Phase I findings and “essentially nullify” Engle III in the process,Id. at 1066
, or ignore the findings’ worthlessness and uphold Engle III. Concluding that “district courts of appeal do not have the prerogative to overrule Florida Supreme Court precedent,” the First District chose the latter option.Id.
(citing Hoffman v. Jones,280 So. 2d 431, 434
(Fla. 1973)).
In so choosing, the First District attempted to mitigate the worthless-findings
problem. The Phase I verdict form and jury instructions were transparently
worthless, so the First District looked to another source, the Engle Omnibus Order,
for interpretational assistance. In that order, Judge Kaye concluded that “the
plaintiff[s] ha[d] presented evidence that could support [the Phase I findings].”
Friedrich v. Fetterman & Assocs.,
137 So. 3d, 362, 365
(Fla. 2013) (emphasis
added). In other words, “[t]here was more than sufficient evidence at trial to . . .
support the jury verdict.” But the First District cited the Omnibus Order, not for
what the Phase I jury could have determined, but for what it did determine. That a
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properly instructed jury could have determined that the “findings encompassed all
brands” was, to the Martin II Court, proof that the jury did determine that. Id. at
1068. That a properly instructed jury could have “determined the defendants . . .
breached their duty [to all class members] by selling cigarettes” was proof that the
jury determined that as well. Id.
Ironically, in carrying out the Engle III Court’s implicit instruction to hold
defendants liable to all class members, the Martin II Court ignored the very explicit
instruction from which the implied instruction was derived. The Martin II Court
did not give “res judicata effect to certain Phase I findings” as Engle III directed.
Engle III, 945 So. 2d at 1254. Instead, in blatant disregard of the defendants’ jury-
trial rights,139 it gave res judicata effect to the evidence presented at the Phase I
trial.
139
Article I, section 22 of the Florida Constitution provides that “the right of trial by jury
shall be secure to all and remain inviolate.” Fla. Const. art. I, § 22. Parties have a jury-trial
right with respect to issues that are legal, as opposed to equitable, in nature. Yer Girl Tera Mia v.
Wimberly,
962 So. 2d 993, 996
(Fla. 5th Dist. Ct. App. 2007). This right “should not be withdrawn from the jury’s consideration unless as a matter of law no proper view of the evidence could possibly sustain” an alternative determination. Bourgeois v. Dade Cty.,99 So. 2d 575, 577
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