Theresa Graham v. R.J Reynolds Tobacco Company

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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. See id. 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

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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 occu

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