Theresa Graham v. R.J Reynolds Tobacco Company

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 *1192 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 damages in individual class-member tort actions to give “res judicata effect” to the retained findings. Id. at 1254 .

But progeny courts had trouble under-' standing Engle Ill’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 En-gle.” 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 *1193 Court conceded that the Phase I findings were “useless in individual actions.” Philip Morris USA, Inc. v. Douglas (Douglas 777), 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 plaintiffs 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.”

The Majority purport to give effect to the “state law” created in Douglas III. Ante at 1185-86. They recognize that it is “unorthodox,” “novel,” and amounts to an irrebuttable presumption of liability. Id. at 1183-84, 1184-85, 1185. Yet, they believe that due process is flexible enough to accommodate such a law. Id. at 1185. 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 1184. I agree that states are free to fashion “novel” and even “unorthodox” laws. Id. at 1183, 1184-85. 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 *1194 Id. at 1185-86. I also disagree with the Majority’s conclusion that Florida’s proscribing the sale of cigarettes is not preempted by federal law.

To navigate the surprising evolution from Phase I’s nonprobative findings of fact to Douglas Ill’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.

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.

Tajblb of Contents

I. Procedural History of Engle... 1195

A. Certifying the Engle Class... 1196

B. Engle Trial to Proceed in Three Phases... 1197

1. Phase I.. .1198

2.. Phase II... 1202

3. Posttrial Motions... 1204

C. Appeal to the Third District Court of Appeal in Engle II... 1207

D. Petition for Review to the Florida Supreme Court in Engle III... 1208

*1195 II. What “Res Judicata” Traditionally Means... 1213

A. Res Judicata 101: The Elements of Issue and Claim Preclusion... 1214

B. Res Judicata 102: Procedures to Invoke Issue and Claim Preclusion.. .1218

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... 1221

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.. .1223

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 ... 1234

C. The Florida District Courts of Appeal Rejected Brown II on the Basis of Engle Ill’s Instruction... 1236

1. The Martin I Circuit Court Concluded That Engle Ill’s Instruction Required It to Hold the Defendants Liable If the Plaintiff Simply Proved Class Membership Irrespective of the Phase I Findings ... 1237

2. The First District Court of Appeal in Martin II Agreed That Engle Ill’s Instruction Required It to Hold the Defendants Liable to all Class Members Irrespective of the Phase I Findings... 1239

3. The Fourth District Court of Appeal in Jimmie Lee Brown II Held That Engle Ill’s Instruction Meant Issue Preclusion but That the Plaintiff Did Not Need to Identify a Specific Defect or Negligent Conduct.. .1245

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... 1248

E.The Second District Court of Appeal in Douglas II Accepted Martin IPs Reasoning, But Certified the Due Process Question to the Florida Supreme Court.. .1252

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... 1255

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 Inap-posite Reasoning Intact... 1273

VI. The Majority Repeat and Add to the Walker Panel’s Errors... 1285

VII. The Functional Ban on Cigarettes is Preempted by Federal Law.. .1292

A. Obstacle Preemption... 1293

B. Federal Regulation of Tobacco Consumers’ Ability to Choose... 1295

C. Florida Has Imposed a Duty Not to Sell Cigarettes Contrary to Federal Law.. .1297

D. The Majority Misinterpret the Statutory Framework of Tobacco Regulation. ..1299

Conclusion... 1300

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, in- *1196 eluding “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” 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 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 de-certify the class. The Court heard the motion on January 15, 1998. 13 It denied the motion with this comment:

I believe changes have occurred. I also believe that the case may be unmanage *1197 able. 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 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 *1198 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 presented evidence that was sweeping in its scope, spanning decades of tobacco-industry history. Ante at 1175-76. 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 non-filtered, 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.”

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 decer-tification 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 *1199 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 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 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 *1200 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 tor-tious-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 to specify the particular theories on which the jury based its findings could not be “meaningfully] 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 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: “[0]nce you start [being more specific], then you’ve got to include a lot more.... And that becomes a 20, 25-page verdict *1201 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 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 liability 22 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 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 *1202 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 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 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 companies 28 —began on November 1, 1999. All alleged that they *1203 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 produced. 31 In Phase I, the jury had determined “issues ... concerning the conduct of the tobacco industry.” In Phase II-A, the same jury 32 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 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 *1204 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.

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 plaintiffs 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 plaintiffs 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 [plaintiffs cancer].”

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) *1205 in accordance with their motion for directed verdict. 37 They also moved the Court to decertify the plaintiffs’ class. 38 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 separately 40 and concluded that each claim had substantial evidentiary support. 41

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 plaintiffs also prevailed on *1206 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.

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 be *1207 cause “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 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 reexamination 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 that “[although the emotional appeal of the class representatives’ claims is compelling, pur 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 “creatpng] 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 nq‘ 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, 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 *1208 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 precluded by settlement agreements between the tobacco companies and the states, “which expressly included claims for punitive damages.” En-gle II, 853 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.” Plaintiffs 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 .... [Cjounsel 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 .

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 con *1209 flicts 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 Z/. 46

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 En-gle 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 .

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 findings on “Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict liability), 4(a) *1210 (fraud by concealment), 5(a) (civil-conspiracy-concealment), 6 (breach of implied warranty), 7 (breach of express warranty), and 8 (negligence).” 51 Engle III, 945 So.2d at 1255, 1268 . It labeled these findings “common core findings.” Id. at 1269 . The Court did not certify the issue of legal causation—whether the Engle defendants’ tor-tious conduct caused the class members’ harm—noting that it was “highly individu.alized and [did] not lend [itself] to class action treatment.” Id. at 1254. The Court acknowledged that “no Florida cases address whether it is appropriate under rule 1.220(d)(4)(A) to certify class treatment for only limited liability issues.” Id. at 1268. It nevertheless certified the issues class because “several decisions by federal appellate courts applying a similar provision in the Federal Rules of Civil Procedure provide persuasive authority for this approach.” Id.

Under step two of its pragmatic solution, the Court declared that these “common core findings ... will have res judi-cata effect” in the subsequent “damages actions” the class members would bring. Id. at 1269. The Phase I findings, which, as the Third District observed, were decided with reference to a “composite plaintiff who smoked every single brand of cigarettes, saw every single advertisement, read every single piece of paper that the tobacco industry ever created or distributed, and knew about every single allegedly fraudulent act,” Engle II, 853 So.2d at 467 n.48, would now have the legal effect of a partial final judgment resolving issues for individual class members. 52 The Court’s pragmatic solution was *1211 therefore intended to enable class members—in suing an Engle defendant on claims of strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, and conspiracy to commit fraud—to plead the Phase I findings to conclusively establish elements of their claims and thereby foreclose the defendant from denying such elements. 53 Although the Phase I jury found none of the defendants foreclosed of their defenses, 54 id. at 450, the Florida Supreme Court did. All that remained for progeny plaintiffs to prove, and for progeny juries to consider, was “individualized issues such as legal causation, comparative fault, and damages.” Engle III, 945 So.2d at 1268 .

After ruling on these two matters without providing the parties notice or opportunity to be heard on them, 55 the Supreme *1212 Court remanded the case to the Third District “with directions that the class should be decertified without prejudice to the class members filing individual claims within one year of the issuance of our mandate in this case with res judicata effect given to certain Phase I findings,” and .“for further proceedings consistent with [its] opinion.” Engle III, 945 So.2d at 1254,1277 . '

On August 7, 2006, the tobacco companies moved the Supreme Court for rehearing. Their motion contended that the Court’s certification of an issues class under Rule 1.220(d)(4)(A) and its pronouncement that the Phase I jury findings would “have res judicata effect” in the cases brought by class members denied them due process in that the Court provided them with no notice that it was contemplating such action and no opportunity to be heard. The denial of due process aside, the tobacco companies contended that the Court erred in certifying the issues class. The “basic principle of class-action law throughout the country ... [is] that certification—under any subdivision of the rules—must be addressed and determined before there is a trial on the merits.” The companies’ final contention was that the Phase I jury findings relating to the claims of strict liability and negligence, among others, could not be given “res judicata effect” because the findings were too generalized to provide a basis for individual causation consistent with due process.

The Florida Supreme Court withdrew its July 6, 2006, opinion, Engle v. Liggett Grp., 945 So.2d 1246 (Fla. 2006), and on December 21, 2006, published Engle III as a substitute. Engle III made minor modifications to the withdrawn opinion, but none are pertinent here. That same day, the Court summarily denied the tobacco companies’ motion for rehearing in an order it chose not to publish. The order instructed the companies not to file another motion for rehearing. 56 The Engle defendants petitioned the U.S. Supreme Court for certio-rari relief, but their petition was denied. R.J. Reynolds Tobacco Co. v. Engle, 552 U.S. 941 , 128 S.Ct. 96 , 169 L.Ed.2d 244 (2007).

*1213 II.

WHAT “RES JUDICATA” TRADITIONALLY MEANS

In this appeal, RJR and Philip Morris challenge a judgment in favor of Earl Graham, as personal representative of the estate of his deceased wife, Faye Graham, on claims of strict liability and negligence. Ante at 1180. Under traditional Florida tort law, a plaintiff alleging strict liability in the products-liability context must prove inter alia (a) that the product in question was defective 57 and (b) that the “defect caused the injury or harm alleged.” Aubin v. Union Carbide Corp., 177 So.3d 489, 513 (Fla. 2015). Similarly, under traditional Florida tort law, a plaintiff alleging negligence must prove inter alia (a) that the defendant breached a duty of care owed to her and (b) that the defendant’s breach caused her harm. Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007). In the wake of Engle III’s res judicata dicta, 58 these traditional requirements have gone by the wayside in .⅞⅛¾⅛-progeny cases.

In this case, for example, the District Court held the defendants liable even though Mr. Graham never proved that his late wife’s injury was caused by the defendants’ product defect(s) or negligent conduct. Instead, the Court allowed Mr. Graham to take advantage of state-law conclusive presumptions—which did not exist when the parties litigated Phase I and apply only in Engle-progeny cases— under which “injury as a result of the Engle defendants’ conduct is assumed.” Douglas III, 110 So.3d at 429 .

The conclusive presumptions on which Ewpie-progeny plaintiffs rely effectively transform the Phase I findings from “useless,” Douglas III, 110 So.3d at 433 , to dispositive. For example, the Phase I finding that each defendant “place[d] cigarettes on the market that were defective and unreasonably dangerous” now establishes as a matter of law that (a) every cigarette smoked by every class plaintiff was defective and unreasonably dangerous 59 and (b) such (unidentified) unreasonably dangerous defect(s) caused every class member’s injury, including Ms. Graham’s. 60 Similarly, the Phase I finding that each defendant “failed to exercise the degree of care which a reasonable manufacturer would exercise under like circumstances” now establishes under state law that (a) the Engle defendants breached their duty of care to every class plaintiff 61 and (b) their (unidentified) breach(es) *1214 caused every class member’s injury, including Ms. Graham’s.

That Engle Ill’s dicta 62 regarding the res judicata effect of the Phase I findings could so drastically alter the Phase I findings and Florida’s preclusion doctrines and tort law is startling. Even more alarming is that progeny courts, including the Majority today, have consistently failed to address the resulting constitutional violations. 63 In this dissent, I lay bare these violations, which have been carried forward and incrementally exacerbated for twenty years.

So far, I have traced the relevant procedural history preceding this case through Engle III . Below, I continue the narrative by detailing layer upon layer of judicial error committed by numerous state and federal courts, culminating finally with the Majority’s errors today. To illuminate that narrative, I pause to explain some fundamental principles of common and constitutional law that progeny courts have either failed to understand or chosen to ignore. Specifically, I provide an overview of preclusion law and explain the U.S. Constitution’s role in its effective operation. I then explain how progeny courts have interpreted Engle Ill's “res judicata” dicta as a mandate to disregard traditional preclusion law, tort law, and the Constitution; an invitation that many progeny courts have accepted.

A. Res Judicata 101: The Elements of Issue and Claim Preclusion

The term “res judicata” refers to all the ways in which the judgment of one court will have a binding effect in a subsequent case. Res judicata, Black’s Law Dictionary 1425 (9th ed. 2009). This definition is the most common, but “lumps under a single name two quite different effects of judgments.” 64 Id. The first—“issue preclusion” or “collateral estoppel”—is the effect of foreclosing relitigation of matters' that have been litigated and decided. Id. The second—“claim preclusion,” “merger,” or “bar”—is the effect of foreclosing any litigation of matters that have never been litigated because they should have been advanced in an earlier suit. 65 Id.

Both issue preclusion and claim preclusion operate across a two-lawsuit continuum. 66 First, parties litigate a dispute to a *1215 final judgment on the merits. Second, in a later, separate suit between the parties, one party brings to court evidence of an earlier judgment and contends that issue or claim preclusion should apply to prevent her opponent from litigating a previously decided issue 67 or cause of action. 68 In this two-lawsuit scheme, the first court is the “rendering” court and the second is the “recognizing” court. In this subpart, I elaborate on the elements of each doctrine.

Issue preclusion, as developed in the common law, “bars relitigation of an issue of fact or law that has been decided in a prior suit.” Baloco v. Drummond Co., 767 F.3d 1229, 1251 (11th Cir. 2014). Drawing from its common-law roots, the doctrine only applies when

(1) the issue at stake is identical to the one involved in the prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue in the prior suit was a necessary part of the judgment in that action; and (4) the parties are the same or in privity with each other and the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.

Id. Although some states articulate these elements differently, the core requirements are largely the same across all jurisdictions.

In Florida, the elements are set forth in a five-prong test. For issue preclusion to apply there must be (1) identical parties, 69 (2) identical issue(s), (3) full litigation of the particular matter, (4) determination of the particular matter, and (5) a “final decision” in the prior proceeding by a court of competent jurisdiction. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 945 So.2d 1216, 1235 (Fla. 2006) (quoting Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla. 1995)).

Elements (2), (3), and (4) of the Florida doctrine culminate in an “actually decided” requirement, which is fundamental to issue preclusion. The requirement originated with early English authorities, which explained that preclusion requires a determination “directly upon point”; recognizing courts could not preclude parties from litigating issues on the basis that such issues might have been or probably were decided. The Duchess of Kingston’s Case, 20 Howell’s State Trials 538 (House of Lords 1776). Rather, courts could estop litigation only when the “estoppell” was “certaine to every intent, and not ... taken by argument or inference.” 2 Coke, The First Part of the Institutes of the Laws of England; Or, A Commentary on Littleton ¶ 352a (1817).

This early English common-law requirement is now deeply ingrained in the Amer *1216 ican judicial system. Federal and state issue-preclusion doctrines have included the requirement for well over a century. See, e.g., Cromwell v. Sac County, 94 U.S. 351, 353 , 4 Otto 351 , 24 L.Ed. 195 (1876) (“[T]he inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined.” (emphasis added)); Burlen v. Shannon, 99 Mass. 200, 203 (1868) (noting that “according to all the well considered authorities, ancient and modern,” the inference that an issue was decided by prior litigation had to “be inevitable, or it [could not] be drawn”). And, to this day, federal and state courts uniformly adhere to it. 70 Florida is no exception. See Brown v. R.J. Reynolds Tobacco Co. (Brown II), 611 F.3d 1324, 1334 (“Florida courts have enforced the ‘actually adjudicated’ requirement with rigor.” (citation omitted)).

The universality of the actually decided requirement is no accident; the requirement helps facilitate due process. When a rendering court decides an issue and a recognizing court later accords that issue preclusive effect, two consequences result: First, the precluded party is gagged from litigating that issue. Fayerweather v. Ritch, 195 U.S. 276, 307 , 25 S.Ct. 58, 68 , 49 L.Ed. 193 (1904). Second, the parties are bound to the rendering court’s decision with respect to that issue. Id. at 299 , 25 S.Ct. at 64 . A litigant is therefore susceptible to being denied her due process right of having an opportunity to be heard on each issue of her case, duPont v. Southern, 771 F.2d 874, 880 (5th Cir. 1985), unless the recognizing court, before giving preclu-sive effect to an issue determination, first identifies with specificity what the rendering court allegedly decided and determines it was, indeed, actually decided.

Though similar to issue preclusion in some respects, claim preclusion is a distinct doctrine carrying its own elements. Unlike issue preclusion, which can be asserted offensively or defensively, claim preclusion is an affirmative defense. 71 Fed. R. Civ. P. 8(c)(1); Fla. R. Civ. P. 1.110. To invoke claim preclusion, a defendant must prove in a recognizing court that the plaintiffs cause of action was adjudicated on the merits in a previous case involving the same parties. 72 Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001). Thus, under both Florida and federal law, *1217 claim preclusion carries four elements: (1) “a final judgment on the merits”; (2) a “decision ... rendered by a court of competent jurisdiction”; (3) “the same cause of action ... involved in both cases”; and (4) “the parties, or those in privity with them, are identical in both suits.” 73 Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014).

Like issue preclusion’s actually decided requirement, elements (1) and (3) of claim preclusion are ubiquitous and deeply ingrained because they help protect parties’ due process rights. 74 Element (1), the final-judgment requirement, 75 has long been a “cardinal rule” in Florida and all other traditional common-law jurisdictions. Douglas III, 110 So.3d at 438 (Canady, J., dissenting) (quoting Juliano, 801 So.2d at 105 ) (citing Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984)). The requirement is important because a defendant who successfully invokes claim preclusion bars a plaintiff from litigating a previously adjudicated cause of action, both as to “issues that were raised ... [and] issues that could have been raised but were not raised in the first case.” 76 Juliano, 801 So.2d at 105 . Barring a cause of action that was never fully litigated to a final judgment unjustly “blockades [an] unexplored path[ ] that may lead to the truth.” Brown v. Felsen, 442 U.S. 127, 132 , 99 S.Ct. 2205, 2210 , 60 L.Ed.2d 767 (1979).

Element (3) of claim preclusion, the same-cause-of-action requirement, has similar constitutional significance. Litigants enjoy a “due process right to fully and fairly litigate each issue in their case.” duPont, 771 F.2d at 874 ; see also Bell v. Burson, 402 U.S. 535, 542 , 91 S.Ct. 1586, 1591 , 29 L.Ed.2d 90 (1971) (“It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision ... does not meet [the requirements of the Due Process Clause].”). Claim preclusion—which bars litigation both as to issues that were and were not litigated in a prior case, Juliano , 801 So.2d at 105—stands in tension with this due process right. The doctrine is reconciled with due process by means of the same-cause-of-action requirement, which functions to “bar[ ] only those claims that could have been raised in the prior litigation.” Griswold v. County of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010) (emphasis added); see also Dennard v. State, No. SC15-300, 2016 WL 1252516 , at *2 *1218 (Fla. Mar. 30, 2016) (explaining that res judicata only extends to “claims that could have been raised in the prior action” (emphasis in original) (quotation marks and citation omitted)).

B. Res Judicata 102: Procedures to Invoke Issue and Claim Preclusion

When applied properly, issue and claim preclusion facilitate the worthy aim of efficiency: “By ‘precluding] parties from contesting matters that they have had a full and fair opportunity to litigate,’ these two doctrines protect against ‘the expense and vexation attending multiple lawsuits, con-serv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.’ ” Taylor v. Sturgell, 553 U.S. 880, 892 , 128 S.Ct. 2161, 2171 , 171 L.Ed.2d 155 (2008) (alterations in original) (quoting Montana v. United States, 440 U.S. 147, 153-154 , 99 S.Ct. 970 , 59 L.Ed.2d 210 (1979)). The doctrines, however, carry the risk of depriving litigants of their property without ever affording them an opportunity to be heard on a central element of their case. Hence, recognizing courts should apply the doctrines “only after careful inquiry.” Fel-sen, 442 U.S. at 132 , 99 S.Ct. at 2210. “[I]n properly seeking to deny a litigant two days in court, [recognizing] courts must be careful not to deprive him of one.” Criales v. Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997).

Recognizing courts therefore strictly abide by certain common-law procedures designed to help protect the integrity of their proceedings and litigants’ due process rights. Such procedures are so ubiquitous and rudimentary that litigants and courts have had little, if any, reason to test their boundaries. See Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 430 , 114 S.Ct. 2331, 2340 , 129 L.Ed.2d 336 (1994) (“Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial.”). The rare court that does deviate from, or abrogate, such procedures risks violating litigants’ due process rights. See Douglas III, 110 So.3d,at 430-31 (“[Eliminating the basic common law protections against an arbitrary deprivation of property violates due process.” (citing Oberg, 512 U.S. at 432 , 114 S.Ct. at 2341 )). I detail some of these procedures in a hypothetical.

A lawsuit is tried to a jury in a rendering court on claims and defenses framed by the plaintiffs complaint and the defendant’s answer. After receiving the jury’s verdict, the court enters a final judgment for the plaintiff. In doing so, the rendering court does not declare or predict whether, and if so to what extent, a recognizing court will give preclusive effect to its judgment, that is, to any of the claims or defenses or to any of the issues that were litigated. To do so would result in mere dicta, because those determinations are within the recognizing court’s sole purview. 77

*1219 Later, the plaintiff sues the defendant 78 in a Title VII action in a different court, a recognizing court. Her complaint alleges several discrete acts of conduct severe or pervasive enough to create a hostile work environment. The defendant denies each allegation. The plaintiff, invoking issue preclusion, then moves the court to strike the defendant’s denial of two of the acts on the ground that they were adjudicated in her favor in the previous lawsuit. The defendant opposes the motion, so the court requires the plaintiff—the party with the burden of proof 79 —to present the portions of the previous lawsuit’s record that establish the adjudication of the issues. The plaintiff responds by introducing from that record the complaint and answer, the jury instructions, the jury’s verdict, and the final judgment.

Upon receiving the plaintiffs evidence, the court decides whether to grant her motion to strike. First, the court determines whether the plaintiff has established the elements of issue preclusion under the rendering state’s laws. 80 Because every *1220 state has a presumption against preclusion, recognizing courts must not apply preclusion if any doubt exists that the elements of preclusion have been satisfied. Issue preclusion’s actually decided requirement, for example, is stringent: If a rendering court’s jury instructions leave “it open to the jury to find for the defendant upon either of ... two [or more] propositions, and the verdict does not specify upon which the jury acted, there can be no certainty that they found upon one rather than the other,” and preclusion is inappropriate. 81 De Sollar v. Hariscome, 158 U.S. 216, 222 , 15 S.Ct. 816, 818 , 39 L.Ed. 956 (1895). In other words, if the jury in the previous case could have returned a ver-diet for the plaintiff without deciding whether the two acts at issue actually occurred, the recognizing court could not grant the motion to strike. 82

If, on the other hand, the recognizing court concludes that the plaintiff has met her burden, and preclusion is appropriate under the rendering state’s laws, the court will grant the plaintiffs motion unless the defendant objects further. If the defendant objects on due process grounds, the recognizing court must ensure that applying the rendering state’s preclusion law will not violate the defendant’s due process rights. 83 See Hansberry v. Lee, 311 U.S. 32, 40 , 61 S.Ct. 115, 117 , 85 L.Ed. 22 (1940) (“[When a due process objection is raised] *1221 it becomes the duty of [the recognizing court] to examine the course of procedures in both litigations to ascertain whether the litigant whose rights have thus been adjudicated has been afforded ... due process.”); Douglas III, 110 So.3d at 430-31 (expressing the same principle); Adams v. State Farm Bureau Life Ins. Co., 493 F.3d 1276, 1285 (11th Cir. 2007) (“[W]e have stated that res judicata can only be applied to an action if it is first shown that doing so would be consistent with due process.” (citing Twigg v. Sears & Roebuck & Co., 153 F.3d 1222, 1226 (11th Cir.1998))). In conducting its due process inquiry, the recognizing court must determine (a) whether the determination in the rendering court was made with adequate notice and opportunity to be heard, (b) whether state preclusion law contains adequate safeguards to ensure that courts do not arbitrarily deprive litigants of property, 84 and (c) whether such safeguards were, in fact, applied:

To conduct its inquiry appropriately, the recognizing court must “look past the linguistic labelfe] employed by the [rendering court]” and conduct a meaningful review. 85 Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1189 (11th Cir. 2003); see also Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 420-21 (6th Cir. 2012) (“[In conducting this inquiry] it is incumbent upon us to apply the same scrutiny to state-court judgments that the Supreme Court would apply.”); Criales v. Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997) (“[W]e would not permit the choice of labels to distort substance, especially where the consequence would be so drastic as to deprive a party of the opportunity to be heard.”). If its due process inquiry so warrants, 86 the recognizing court then grants the plaintiffs motion to strike.

Given the essential inquiries for which a recognizing court is responsible, a rendering court cannot “predetermine the res judicata effect of [its] judgment.” 87 Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 396 , 116 S.Ct. 873, 888 , 134 L.Ed.2d 6 (1996) (Ginsburg, J., concurring in part and dissenting in part) (citation omitted). This is so even if the rendering court, like the Supreme Court in Engle III , is convinced that its proceedings were constitutionally sound.

III.

ENGLE III INSTRUCTED PROGENY COURTS TO DISREGARD TRADITIONAL RES JUDICATA LAW SO AS TO HOLD THE DEFENDANTS LIABLE WITHOUT REGARD TO THE PHASE I FINDINGS

When Engle III accepted jurisdiction under Article V, Section 3(b)(3) of the *1222 Florida Constitution, it assumed the role of an appellate rendering court, reviewing the proceedings in Engle I and Engle II for certain issues that were “properly briefed[,] argued and [ ] dispositive of the case.” Murray v. Regier, 872 So.2d 217 , 225 n.5 (Fla. 2002) (citing Savona v. Prudential Ins. Co. of America, 648 So.2d 705, 707 (Fla.1995)). The Florida Supreme Court fulfilled this role by considering the briefed issues and quashing much of the Third District’s judgment.

When Engle III retroactively certified an issues class limited to eight of the ten of Phase I findings, and declared that those “findings ... will have res judicata effect” in future “damages actions” to be brought by individual members of the decertified class, it usurped the role of a recognizing court. 88 Engle III, 945 So.2d at 1269. Recognizing progeny courts could have disregarded Engle Ill’s res judicata instruction as mere dicta, 89 and some did. 90 Many others, however, in deference to the state’s highest court, interpreted the instruction as a binding mandate. See, e.g., R.J. Reynolds Tobacco Co. v. Martin (Martin II), 53 So.3d 1060, 1066-67 (Fla. 1st Dist. Ct. App. 2010) (interpreting the Florida Supreme Court’s res judicata instruction as a mandate that “district courts of appeal do not have the prerogative to overrule”); Jimmie Lee Brown II, 70 So.3d at 715 (“We are constrained by the Florida Supreme Court’s decision in Engle III.”). As shown below, recognizing courts that interpreted the instruction as a mandate treated preclusion as a foregone conclusion, thereby abandoning their recognizing-court duties and putting their integrity at risk while sparing progeny plaintiffs their burden of proving the elements of preclusion.

In accordance with mutuality requirements under Florida preclusion law, 91 we .are not bound by previous recognizing-court determinations. 92 Nevertheless, I review such cases to demonstrate how progeny courts have incrementally grown evermore absurd in their reasoning, ever-more disingenuous in their portrayal of facts, and ever-more cavalier in their abrogation of due process. The Majority’s opinion is best understood in the context of the steady downslide that preceded it.

*1223 A. The U.S. District Court for the Middle District of Florida in Brown I Rejected the Florida Supreme Court’s Interference with Its Duties as a Recognizing Court

Within the one-year limitations period Engle III provided, 9,000 class members— smokers and personal representatives of deceased smokers—filed suit against the Engle defendants in state and federal court, the “Engle-progeny cases.” 93 Approximately 4,000 members brought suit in the Circuit Court of Duval County, Florida. 94 The tobacco companies, invoking the Class Action Fairness Act of 2005, Pub. L. No. 109-2,119 Stat. 4 (codified in scattered sections of 28 U.S.C.), successfully removed the cases to the U.S. District Court for the Middle District of Florida. 95 Graham v. R.J. Reynolds Tobacco Co. (Graham I), No. 3:09-cv-13603-MMH-JBT (M.D. Fla. May 28, 2013) was one of them.

After the cases removed to the Middle District of Florida were assembled, 96 the tobacco companies moved the District Court in one of the cases, Brown v. R.J. Reynolds Tobacco Co. (Brown I), 576 F.Supp.2d 1328 (M.D. Fla. 2008), 97 to decide the preclusive effect, if any, of the Phase I findings based on Engle Ill’s declaration that “the Phase I common core findings [it] approved will have res judica-ta effect” in the progeny cases. 98 Engle III, 945 So.2d at 1269. The District Court granted the motion.

The preclusion issue was framed by Brcrnn Fs amended complaint 99 and the defendants’ answers. 100 I quote parts of these pleadings because they set the stage for, and were integral to, the District Court’s decision.

The amended complaint was materially identical to the complaints filed in the other Engle-progeny cases in that all asserted the same Engle ///-approved tort claims and sought compensatory and punitive damages. None of the complaints specified the brand(s) of the defendants’ cigarettes the plaintiff smoked, how. the defendants’ tortious conduct caused the plaintiffs inju- *1224 ríes, or even what the tortious conduct was in the first place. The facts on which a specific tort claim rested consisted of a citation to the Engle III decision and the Phase I findings. Amended Complaint at 1, 5, 12-14, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761).

I begin with the pertinent allegations of the complaint and then move to the defendants’ answers.

AMENDED COMPLAINT

Plaintiffs, as Personal Representatives of the Estates of Decedents, hereby sue the Defendants as follows:

INTRODUCTION AND GENERAL ALLEGATIONS

1.This is a complaint against the Defendants seeking compensatory and punitive damages in accordance with the Florida Supreme Court’s class action decision and mandate in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). In approving the Engle Phase I class certification and trial, but ordering post Phase I class decertification, the Florida Supreme Court provided this opportunity to complete unresolved individual damages claims. The Court held: “that it was proper to allow the jury to make findings in Phase I on Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-concealment), 6 (breach of implied warranty), 7 (breach of express warranty), and 8 (negligence). Therefore, these findings in favor of the Engle class can stand.” The Court further held that specified liability and general causation findings by the Engle jury did not need to be proved again as they shall be given res judicata effect. Consequently, Plaintiffs bring this action upon the limited remaining issues in dispute, to-wit: specific causation, apportionment of damages, comparative fault, compensatory damages, entitlement to punitive damages, and punitive damages.

2. The Florida Supreme Court expressly reserved to class members, including Plaintiffs and their Decedents, the right to bring individual actions against Defendants for smoking-related injuries and damages, including punitive damages. This action is timely because it is brought within one (1) year of the Florida Supreme Court’s mandate in Engle.

3. Plaintiffs are the Personal Representative for the Estate of the Decedents. Letters of Administration will be forthcoming and filed with the Clerk of this Court. This action is brought on behalf of the Decedent’s survivors and Estate. The potential beneficiaries of a recovery in this action and the relationship to the Decedents follow Fla. Stat. § 768 , et seq.

[[Image here]]

5. The Defendants are manufacturers of cigarettes, or their successors/predecessors are manufacturers of cigarettes, and they are foreign corporations doing business in Florida who, at times material to this action, designed, manufactured, advertised, marketed, and sold tobacco products for human consumption which proximately caused injury to Decedents.

[[Image here]]

12. Cigarette Products. Decedents purchased, smoked, and were addicted to cigarette products manufactured and sold by Defendants which were the subject of Engle. They were designed, manufactured, advertised, marketed, and sold by the Defendants at all times material to these claims.

13. Common Liability Findings. Plaintiffs assert the jury findings in the Phase I Engle trial which were given res judicata effect by the Florida Supreme Court, including but not limited to the following:

*1225 a. Smoking cigarettes causes aortic aneurysm, bladder cancer, cerebral vascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarcinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer.

b. Nicotine is addictive.

c. All of the Defendants placed cigarettes on the market that were defective and unreasonably dangerous.

d. All of the Defendants concealed or omitted material information not otherwise known or available, knowing that the material was false or misleading, or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.

e. All of the Defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.

f. All of the Defendants sold or supplied cigarettes that were defective.

g. All of the Defendants were negligent.

h. All Defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by Defendants.

14. As a direct and proximate result of Decedents’ smoking of Defendants’ cigarettes, Decedents suffered bodily injury and died. Defendants’ cigarettes caused Decedents to develop one or more cigarette-related diseases or medical conditions and one or more of them resulted in or substantially contributed to Decedents’ death.

[[Image here]]

17. The threshold requirement for pleading punitive damages has been previously met in the Engle Phase I proceeding.

COUNT I—STRICT LIABILITY

18. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

19. As a direct and proximate result of Defendants’ defective and unreasonably dangerous cigarettes, Decedents were injured and died.

[[Image here]]

COUNT II—BREACH OF EXPRESS WARRANTY

20. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

21. As a direct and proximate result of Defendants’ breach of express warranty, Decedents were injured and died.

[[Image here]]

COUNT III—BREACH OF IMPLIED WARRANTY

22. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

23. As a direct and proximate result of Defendants’ breach of implied warranty, Decedents were injured and died.

[[Image here]]

COUNT IV—CIVIL CONSPIRACY TO FRAUDULENTLY CONCEAL

24. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

25. As a direct and proximate result of Defendants’ conspiracy to fraudulently deceive, Decedents were injured and died.

[[Image here]]

COUNT V—FRAUDULENT CONCEALMENT

*1226 26. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

[[Image here]]

27. As a direct and proximate result of Defendants’ fraudulent concealment, Decedents were injured and died.

[[Image here]]

COUNT VI—NEGLIGENCE

28. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.

29. As a direct and proximate result of Defendants’ negligence, Decedents were injured and died.

Id. at 2-7.

The complaints in Brown I and the other progeny cases were pleaded pursuant to Rule 8(a) of the Federal Rules of Civil Procedure 101 and the Supreme Court’s instructions in Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009). Iqbal requires that

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter ... to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 ,] 570, 127 S.Ct. 1955 , [ 167 L.Ed.2d 929 (2007) ]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556 , 127 S.Ct. 1955 . The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. ...

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .... Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) rev’d, Iqbal, 556 U.S. 662 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 ], But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

Id. at 678-79 , 129 S.Ct. at 1949-50 .

The amended complaint did not satisfy Rule 8(a) and Iqbal’s pleading standards because it merely recited conclusory statements from the Engle III opinion. Moreover, it failed altogether to identify the tortious conduct that caused the plaintiffs’ injuries.

In drafting their amended complaints in Brown I and other progeny cases, progeny plaintiffs simply lifted language from the Engle III opinion as a means of pleading res judicata offensively, using the doctrine as a substitute for alleging the facts necessary to establish the elements of their causes of action. E.g., Amended Complaint at 4, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761). This method of pleading is foreign to what Rule 8 prescribes 102 and helps explain the difficulty federal district courts have encountered in adjudicating progeny cases.

Such difficulty could have been mitigated if the following procedures had been *1227 followed: To satisfy the requirements of Rule 8 and Iqbal , plaintiffs’ counsel should have drafted a condensed version of the Phase I complaint, one tailored to the individual plaintiffs claims. With respect to negligence, for example, the plaintiffs’ complaints should have identified each defendant’s negligent conduct, noting when it took place and explaining how it caused the plaintiffs injury. Each defendant, in turn, would answer the complaint and might choose to deny inter alia (1) that it engaged in the alleged conduct, (2) that such conduct was negligent, and (3) that such conduct caused the plaintiffs injuries. Next, the plaintiff, invoking res judicata, would likely respond with a motion to strike denials (1) and (2) as being foreclosed by the Phase I findings and/or by Engle III . If a defendant then opposed that motion, the plaintiff, having the burden of proof on the applicability of preclusion, would introduce into evidence the part of the Engle proceedings that established the foreclosure. The court would then examine such evidence and rule. 103

That things did not operate in this way suggests that Engle-progeny cases have more to do with a change in substantive law than with an invocation of traditional claim or issue preclusion. If, for example, Engle III established as a substantive rule of tort law (1) that all cigarettes are defective, unreasonably dangerous, and negligently made and (2) that one who smokes them can recover damages for smoking-related injury—because it is conclusively presumed that the defect or negligence caused the injury—then the way progeny cases have been pleaded makes more sense. If that were the tort law, 104 the class plaintiffs would satisfy the Iqbal standard simply by alleging that they purchased a defendant’s cigarettes, became addicted, and suffered injury as a result. That is precisely what they have been allowed to do; they neither allege in their complaints nor proffer evidence that the defendants .wrongful conduct caused their injuries. Even under this scenario, however, if a defendant moved to dismiss a claim under Rule 12(b)(6), the court would have to determine whether Engle III actually implemented such a change in substantive tort law—that it relieved the class plaintiffs of the burden of proving injury causation. That determination, in turn, would hinge on a review of the Engle proceedings.

In contrast to the plaintiffs’ deficient complaints, the Engle defendants’ answers have been pleaded in accordance with the Federal Rules of Civil Procedure. Those answers admit or deny the plaintiffs allegations and assert affirmative defenses. Below, I provide RJR’s answer from Brown I as a template of a typical Engle- defendant answer. The answer begins with a Preliminary Statement, which is followed by a response to each of the amended complaint’s numbered paragraphs and thirty-four affirmative defenses. 105

PRELIMINARY STATEMENT

[[Image here]]

Reynolds contends that the Florida Supreme Court’s decision contains sev *1228 eral errors of law and denies the Engle defendants their due process rights.

[[Image here]]

First, the Florida Supreme Court invalidated certain Phase I findings as being “nonspecific” and “inadequate to allow a subsequent jury to consider individual questions of reliance and legal cause.” See Engle [III], 945 So.2d at 1246. The preserved Engle Phase I findings, however, suffer from the same deficiencies. Those findings are also so generalized and nonspecific that they are inadequate to support an individualized determination of essential issues such as liability, legal causation, and damages in this or any other subsequent individual action. Nothing in the Phase I verdict identifies the misconduct underlying the jury’s findings. Giving preclu-sive effect to these findings in this or any other individual action would subject defendants to liability for conduct that no one can determine the Engle Phase I jury found to be tortious, thereby violating Florida law and denying defendants due process and a fair trial. Moreover, applying these generic findings in this or any other individual action would mean no jury will make specific findings regarding these issues as they relate to these Plaintiffs and/or Plaintiffs’ Decedents, thereby depriving defendants of their Seventh Amendment right to a trial by jury in this action. Specifically, the preserved Engle Phase I findings are deficient for the following reasons:

• Engle Phase I findings numbers 3 (Strict Liability—that the defendants placed cigarettes on the market that were defective and unreasonably dangerous) and 6 (Breach of Implied Warranty—that all of the defendants sold or supplied cigarettes that were defective in that they were not reasonably fit for the uses intended) are deficient because they do not identify the produces), defect(s), or manufacturing dates, brands, types, or designs of cigarettes found to be defective. Accordingly, no subsequent court or fact finder can determine whether any product, brand, type, or design used by a particular plaintiff was found defective (or not defective) by the Engle jury or whether any such design characteristic found defective by the Engle jury caused these Plaintiffs’ Decedents’ injuries or any other plaintiff’s injury....

• The Florida Supreme Court rejected Engle Phase I findings numbers 4 (Fraud and Misrepresentation) and 5 (Civil Conspiracy— Misrepresentation) because “fraud” was too individualized a claim to allow the finding to be applied in subsequent actions. Engle Phase I findings numbers 4(a) (Fraud by Concealment—that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes) and 5(a) (Civil Conspiracy—Concealment—that the defendants agreed to conceal or omit information regarding the health effects of cigarette smoking or the addictive nature of cigarette smoking with the intention that smokers and the public would rely on this information to their detriment) suffer from the same deficiency. Findings 4(a) and 5(a) do not identify what information was found to have been misrepresented or concealed, or the date(s) that such information was misrepresented or concealed. Therefore, no subsequent court or fact finder can determine *1229 whether a particular plaintiff relied upon a statement or omission found tortious by the Engle jury or whether any statement or omission found to be tortious by the Engle jury was a legal cause of injury to the plaintiff....

Engle Phase I finding number 7 (Breach of Express Warranty—that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants) is deficient because it does not identify the specific representations of fact, what defendant made the representations, when the representations were made, the product(s), brands, or time of sale of the cigarettes that did not allegedly conform to representations of fact, or how the cigarettes did not conform to those representations as determined by the Engle jury. Thus, no subsequent court or fact finder can determine whether any particular plaintiff heard any specific representations of fact or purchased cigarettes in reliance upon those representations of fact, whether any particular plaintiffs cigarettes did not conform to the specific representations of fact, or whether any breach of express warranty as determined by the Engle jury was a legal cause of injury to a particular plaintiff....

Engle Phase I finding number 8 (Negligence—that the defendants failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances) is deficient because it does not identify the negligent conduct, or whether it %vas based on a failure to warn or negligent design. No subsequent court or fact finder can determine whether the acts or omissions alleged by these Plaintiffs or any other whether any conduct found to be negligent by the Engle jury was a legal cause of injury to a particular plaintiff.

Second, the Engle Phase I findings cannot be given preclusive effect in this or any other subsequent individual action because res judicata requires a judgment on the merits that resolves claim or cause of action. The Engle Phase I findings did not determine liability and do not constitute a judgment that resolved any claim or cause of action.

Third, application of the Engle Phase I findings in this or any other subsequent individual action would violate the prohibitions set forth in the Seventh Amendment to the United States Constitution and Article I, § 22 of the Florida Constitution against re-examination by one jury of issues decided by another jury because the generic and nonspecific nature of those findings necessarily requires a subsequent jury to reexamine the Phase I findings to determine what conduct the Engle jury determined was tortious.

Fourth, the Engle Phase I findings cannot be used as a basis for determining punitive damages because the Phase I findings do not identify the conduct that the Engle jury found to be tortious or unlawful, and due process requires that punitive damages be based upon the wrongful conduct causing the injury to the plaintiff.

Fifth, the Florida Supreme Court retroactively changed the basis for class certification from Rule 1.220(b)(3) to Rule 1.220(d) (tí (A), without allowing the defendants to argue the impropriety of certifying the class under Rule 1.220(d) (tí (A), thereby depriving defendants of their due process right to notice and an opportunity to be heard concern *1230 ing the proper procedure for having the jury arrive at sufficiently specific Phase I findings.

Answer, Defenses, and Jury Demand of Defendant R.J. Reynolds Tobacco Co. at 2-7, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761) (emphasis added).

In deciding the preclusion issue, the District Court, sitting as a recognizing court, and the parties drew on Florida’s res judi-cata doctrines, claim and issue preclusion. In briefing the preclusion issue, plaintiffs’ counsel argued that the Engle III Court issued four implied holdings. The first three holdings relate to the tort claims pleaded in the class action complaint. The fourth relates to the duty of recognizing trial courts in progeny cases.

Plaintiffs first argued that Engle III , by invoking “res judicata”—which the plaintiffs interpreted as claim preclusion—implicitly held that the Phase I findings established the elements of the plaintiffs’ tort claims. 106 Plaintiffs Response to Tobacco’s Rule 16(c) Motion at 4, Brown /, 576 ,F.Supp.2d 1328 (No. 3:07-cv-00761). Relatedly, the plaintiffs argued, the Engle III Court also implicitly held that the Phase I findings foreclosed all of the tobacco companies’ defenses to the plaintiffs’ tort claims. 107 See id. (“The [Phase I] jury is ... conclusively presumed to have considered all issues related to the claims of defect, negligence, conspiracy to defraud, and the other counts.”). Defendants could, of course, still contend that a plaintiff was not a class member—because, for example, she was not addicted—that her disease was not caused by smoking, that she was comparatively negligent, and that her damages should be less than those demanded. Id. at 19. In sum, the plaintiffs argued, Engle III held that progeny trials would be “ ‘damages’ trials” rather than causation trials; plaintiffs had no need to prove that their injury was caused by a defendant’s tortious conduct. Id. Instead, as plaintiffs argued Engle III also held, the only issue of causation the plaintiffs needed to establish was “that smoking cigarettes caused a plaintiffs particular injury.” 108 Id. (emphasis in original).

Finally, the plaintiffs also argued that by commanding recognizing trial courts to *1231 give the Phase I findings res judicata effect, the Engle III Court was informing those courts that it had predetermined the preclusive effect of the Phase I findings. See id. at 13 (“We know—from Engle itself—that Florida law permits a verdict of this type to be given res judicata effect. ” (emphasis in original)). Thus, under Florida law, the plaintiffs contended, recognizing trial courts no longer had any business evaluating whether the elements of preclusion—including the final-judgment and actually decided requirements 109 —had been satisfied or whether due process had been afforded to Engle defendants in the rendering court. See id. at 12-13 (“[I]t is the law of Florida, deemed so by Florida’s highest court, that whatever Phase I can be called or labeled, it is sufficient to be the basis of claims preclusion. ” (empl^sis in original)). If due process had been denied, so be it.

Before it addressed the preclusive effect that should be afforded to the Phase I findings, the District Court had to decide a preliminary question concerning its jurisdiction. The plaintiffs argued that the Rooker-Feldman doctrine 110 deprived the Court of jurisdiction to “independently review[ ] the state court rulings.” Brown I, 576 F.Supp.2d at 1334 . That is, the Court could not entertain the defendants’ argument that because it was “impossible to know what allegations formed the basis of each [Phase I] finding, affording preclusive effect to the general Phase I findings would be an arbitrary application of the common law rules of preclusion” and a denial of due process of law. Id. at 1344 . Due to the lack of jurisdiction, the plaintiffs continued, the Court had to apply preclusion without evaluating the due process implications of doing so. Id. at 1334 . The District Court rejected the plaintiffs’ arguments and held Rooker-Feldman inapplicable. 111

Next, the Court considered what preclu-sive effect it should give to the Phase I findings. The defendants argued that it was “apparent that the Florida Supreme Court intended that the findings function as issue preclusion (or collateral estoppel) in subsequent proceedings,” id. at 1338 , but that using the findings to establish their liability in the instant case “would be an arbitrary application of the common law rules of preclusion” and thus would deny them due process. Id. at 1344-45 . The plaintiffs’ response was that “the Engle findings should act as claim preclusion (or res judicata) since the Supreme Court of Florida explicitly used the legal term ‘res judicata’ in its decision,” and the defendants had received all the process they were due in the Engle proceedings. Id. at 1338.

The Court considered the plaintiffs’ argument “problematic.” Id. at 1339. First, the Florida Supreme Court, as the

*1232 rendering court ... may not decide the preclusive effect of its own judgments. It is the duty of the second trial court— which knows both what the earlier finding was and how it relates to a later case^—to independently determine what preclusive effect a prior judgment may be given. 112

Id. at 1339 (citations omitted). “Second, as acknowledged by the Florida Supreme Court, the Phase I jury verdict did not establish liability as to any Defendant.” 113 Id. at 1340. Thus, “the Phase I findings did not serve to merge the claims asserted by Plaintiffs into an enforceable judgment” against the tobacco companies. 114 Id.

*1233 Although claim preclusion was not viable due to the absence of a final judgment, the District Court assessed whether plaintiffs could successfully assert issue preclusion. Id. In conducting its assessment, the Court performed its recognizing-court duties of evaluating the due process implications of preclusion and determining whether the party asserting preclusion had carried the burden of proving its elements. 115 Id. at 1340-47. Issue preclusion, the Court determined, could not be invoked because neither its Florida-law nor constitutional requirements had been satisfied.

The Court found that the plaintiffs had not carried their burden of proving issue preclusion’s actually decided element, a requirement that carries constitutional significance. 116 According to the Court, the “jury form, and any verdict delivered from the form” were “flaw[ed]” and “nonspecific[ ]” such that “this Court ‘would have to embark on sheer speculation’ to determine what issues were actually decided during the Phase I trial and how to apply them to the individual claims before this Court.” Id. at 1342 (quoting Hoag v. New Jersey, 356 U.S. 464, 472 , 78 S.Ct. 829, 829 , 2 L.Ed.2d 913 (1958)). The Court simply could not determine “what acts or omission committed by what Defendant breached what duty to which Plaintiff causing what injury.” Id. Accordingly, to preclude defendants from litigating such issues would violate the Supreme Court’s instruction “that courts not apply the doctrine of issue preclusion to prior determinations unless the court ‘is certain that the precise fact was determined by the former judgment.’ ” Id. at 1345 (quoting De Sollar v. Hanscome, 158 U.S. 216, 221 , 15 S.Ct. 816 , 39 L.Ed. 956 (1895)).

Moreover, “since it is impossible to determine the precise issues decided by the Phase I jury ... the traditional elements of issue preclusion—e.g., identicality, criti-cality, and necessity to the prior determination—cannot be satisfied.” Id. at 1346. Accordingly, the Court concluded that it was “foreclosed from applying the Phase I findings as establishing any part of Plaintiffs’ claims.” Id. (citations omitted).

Becáuse the plaintiffs were unsuccessful in invoking claim and issue preclusion, the Engle defendants had the right to deny that their tortious conduct caused the plaintiffs’ injuries. In its order rejecting the plaintiffs’ arguments that Rooker-Feld-man precluded it from deciding the due process issue the companies had present *1234 ed, the District Court certified that its rulings qualified for interlocutory appeal under 28 U.S.C. § 1292 (b). Id. at 1348. We agreed and granted the parties’ application to appeal. Notice of Interlocutory Appeal at 1, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761). Meanwhile, further proceedings in the Engle-progeny cases in the Middle District were stayed pending our decision. E.g., Order at 1-2, Waggoner v. R.J. Reynolds Tobacco Co., 835 F.Supp.2d 1244 (2011) (No. 3:09-cv-10367).

[[Image here]]

Although Engle III sought to predetermine preclusion such that recognizing courts would not consider whether the elements of preclusion had been satisfied or whether applying preclusion would deny due process, the Brown I Court firmly rejected this attempted usurpation of its recognizing-court responsibilities—“the rendering court,” the Court affirmed, “may not decide the preclusive effect of its own judgments.” 117 Brown I, 576 F.Supp.2d at 1339 . In performing its recognizing-court duties, the Court found that under both Florida law and the U.S. Constitution, plaintiffs could invoke neither claim or issue preclusion.

B. In Brown II, We Upheld the District Court’s Decision as a Recognizing Court to Apply Florida’s Traditional Issue-Preclusion Doctrine to the Phase I Findings

On appeal, we affirmed the District Court’s rejection of the plaintiffs’ Rooker-Feldman argument for the reasons that Court gave and in light of the Supreme Court’s recent decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 , 125 S.Ct. 1517 , 161 L.Ed.2d 454 (2005). 118 Brown II, 611 F.3d at 1330 .

We also affirmed the District Court’s rejection of the plaintiffs’ argument that claim preclusion, rather than issue preclusion, was what the Engle III Court had in mind when it used the term “res judicata.” Although “the plaintiffs argued before the district court and suggested in their brief to this Court that the Florida Supreme Court was referring to claim preclusion in Engle III,” the plaintiffs, at oral argument “clarified that their position [was] that the Phase I approved findings are entitled to issue preclusive effect.” Id. at 1333 n.7. “[I]f the plaintiffs had continued to argue for claim preclusion, we would have rejected that position” because claim preclusion’s final-judgment requirement had not been satisfied. Id. at 1332 ,1333 n.7.

*1235 After the plaintiffs stipulated that claim preclusion was not viable, we evaluated the viability of issué preclusion. “Issue preclusion,” we observed, “operates more narrowly to prevent re-litigation of issues that have already been decided between the parties in an earlier lawsuit.” Id. at 1332 (citations omitted). Like the District Court before us, we recognized that Florida’s doctrine of issue preclusion carried an actually decided requirement. 119 Id. (citing Rohan v. Trakker Maps, Inc., 633 So.2d 1176, 1177 (Fla. Dist. Ct. App. 1994)). Unlike the District Court, however, we did not take any position as to whether that requirement was required under the U.S. Constitution, “because,” we assumed, 120 “under Florida law the findings could not be used” “to establish facts that were not decided by the [Phase I] jury.” Id. at 1334.

The parties’ dispute, therefore, came down to what the Phase I jury decided. The defendants argued that the jury decided only what it indicated on the Phase I verdict form—“those [facts] framed by the specific factual issue set out in the questions posed to them on the verdict form.” Id. The plaintiffs, on the other hand, advocated a more expansive reading of the Phase I findings that relied on “flesh[ing] out” “the jury’s answers” “using the record as a whole” and “going outside the record.” Id. at 1335. This process of “fleshing out,” the plaintiffs contended, would lead the Court to conclude that when the jury answered “yes” to, for example, the verdict-form question about defendants “placing] cigarettes on the market that were defective and unreasonably dangerous,” it meant that “all cigarettes the defendants sold were defective and unreasonably dangerous.” Id. (emphasis added).

Though we welcomed the plaintiffs to scour the trial record—without looking beyond it—for proof of what the jury determined, we were skeptical that such proof existed. Id. “[T]he plaintiffs have pointed to nothing in the record, and there is certainly nothing in the jury findings themselves,” we observed, “to support [the plaintiffs’] factual assertion” that the Phase I jury found that defendants’ tor-tious conduct tainted all cigarettes. 121 Id.

With the dispute over claim and issue preclusion resolved, and the due process issue avoided, we remanded the case to the District Court to provide plaintiffs an.opportunity to prove, 122 inter alia, that “the jury’s [unreasonably-dangerous-defect finding] ... establishes that all of the cigarettes that the defendants sold” “were de *1236 fective and unreasonably dangerous.” 123 Id. at 1336.

[[Image here]]

. Brown II, as a recognizing-court decision, became the Eleventh Circuit’s controlling precedent regarding the preclusive effect of Engle III in the litigation of progeny cases in the district courts. The Phase I findings resolved factual issues, not causes of action. Id. at 1333 (“[F]actual issues and not causes of action were decided in Phase I”). Absent evidence that the Phase I jury decided more facts than, those it disclosed in its findings—-which we were skeptical existed, but welcomed plaintiffs to locate—plaintiffs could not rely upon the Phase I findings to identify particular cigarette defect(s) and tortious conduct, let alone prove that such defect(s) and conduct caused their harm. See id. at 1335 (“[Tjhere is certainly nothing in the jury findings ... to support [the plaintiffs’] factual assertion” “that all cigarettes the defendants sold were defective and unreasonably dangerous.”). By necessary implication, we held that a District Court judgment based solely on the Phase I findings would deprive the defendant of its property without due process of law. 124

C. The Florida District Courts of Appeal Rejected Brown II on the Basis of Engle Ill’s Instruction

Brown II was decided on July 22, 2010. After the mandate issued, the stays were lifted in twelve “lead” Middle District of Florida cases, including Graham. 125 The Court in Waggoner v. R.J. Reynolds Tobacco Co., 835 F.Supp.2d 1244 (M.D. Fla. 2011), was selected as the recognizing court for “determining] which Engle facts should be given preclusive effect under Florida law as the Eleventh Circuit had outlined it” in Brown II. 126 Id. at 1253. The *1237 Waggoner Court was unable to undertake the assignment, however, until June 2011.

On June 2, 2011, the lawyers representing the parties in the twelve lead cases appeared before the District Court for a Rule 16(c) 127 management conference. Id. at 1256 . In the interim, between the issuance of the mandate in Brown II and the commencement of the Rule 16(c) conference, the First District Court of Appeal, in Martin II, 53 So.3d 1060 , 128 had reached a preclusion holding contrary to Brown II’s. Before the Rule 16(c) conference adjourned, the Fourth District Court of Appeal, in Jimmie Lee Brown II agreed with Brown IBs analysis, but reached the same result as the First District’s in Martin II , albeit with serious reservations as to whether its decision would deny the tobacco companies of their property without due process of law.

1. The Martin I Circuit Court Concluded That Engle Ill’s Instruction Required It to Hold the Defendants Liable if the Plaintiff Simply Proved Class Membership Irrespective of the Phase I Findings

The Martin case was brought on October 24, 2007, in the Circuit Court for Es-cambia County, Florida. Beverly Martin sued RJR, Philip Morris USA, Inc., and Lorillard Tobacco to recover for the death of her husband, Benny Martin. Martin II , 53So.3d at 1064 n.2. In her first amended complaint, 129 she asserted four of the En-gle ///-approved causes of action: strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. Id. at 1065 . She also sought punitive damages. Id. Her tort claims and the prayer for punitive damages were based solely on the “Common Liability Findings” asserted in the Brown I complaint. Amended Complaint at 4, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761). Those findings, the complaint alleged, were sufficient to “conclusively establish” her tort claims. First Amended Complaint at ¶¶ 29-61, Martin v. R.J. Reynolds Tobacco Co. (Martin I), No. 2007-CA-2520 (Fla. Cir. Ct. 2009).

The defendants’ answers to the amended complaint raised the same due process objection as their answers did in Brown I . Philip Morris USA Inc.’s Answer, Martin I (No. 2007-CA-2520), 2008 WL 6722672 at *12. On August 25, 2008, their attorneys and those representing Engle defendants in the other progeny cases pending in the Escambia County Circuit Court jointly moved the Circuit Court, pursuant to Florida Rule of Civil Procedure 1.200, 130 to determine, as a recognizing court, what the Florida Supreme Court meant when it declared that the Phase I findings would be given “res judicata effect” in progeny cases. Defendants’ Rule 1.200 Motion at 1-3, In re: Engle Progeny Cases Tobacco Litigation (Fla. Cir. Ct. Feb. 24, 2009) (No. 2008-CA-80000). The parties asserted positions similar to those they asserted in *1238 Brown I. Id.; Order Denying Defendants’ Rule 1.200 Motion at 1-3, In re: Engle Progeny Cases Tobacco Litigation (No. 2008-CA-80000).

The Court ruled on the motion in an order entered on February 24, 2009. Order Denying Defendants’ Rule 1.200 Motion, In re: Engle Progeny Cases Tobacco Litigation (No. 2008-CA-80000). It could not say whether the Florida Supreme Court had intended to invoke “res judicata, collateral estoppel, estoppel by judgment, stare decisis, or some other mechanism.” Id. at 3. Whatever the mechanism was, it was “unorthodox.” Id. at 2. The intended effect of the mechanism, however, was clear: the Florida Supreme Court had intended to facilitate rather than “void the class action litigation.” Id. at 3. The Phase I findings “must [be] use[d]” even if they appeared useless. Id.

The Court’s Rule 1.200 ruling governed the trial in Martin I. All Ms. Martin had to prove to hold RJR liable was Mr. Martin’s class membership—his addiction to an RJR cigarette and a smoking-related injury. 131 Martin II, 53 So.3d at 1066 . Thus, the jury was not required to determine whether the cigarettes Mr. Martin smoked were defective and unreasonably dangerous; whether RJR committed one or more negligent acts that caused him to smoke; whether it concealed information about the health effects or addictive nature of smoking that would have caused him to stop smoking had he been aware of it; or whether any Engle defendant acted to conceal such information pursuant to a conspiracy of which RJR was a member. 132 Id. at 1064-66; Jury Instructions, Martin I (No. 2007-CA-2520), 2009 WL 2599305 . The jury found RJR liable on all four *1239 claims and assessed Ms. Martin’s damages at $5 million. Martin II, 53 So.3d at 1066 . That amount was reduced to $3.3 million based on the jury’s apportionment of fault. Id. Ms. Martin was also awarded $25 million in punitive damages. Id. RJR appealed the judgment.

2. The First District Court of Appeal in Martin II Agreed That Engle Ill’s Instruction Required It to Hold the Defendants Liable to all Class Members Irrespective of the Phase I Findings

The appeal was “the first ... ‘Engle progeny’ case to reach a district court of appeal following the Florida Supreme Court’s decision” in Engle III. Id. at 1062, 128 S.Ct. 96 . The “crux” of RJR’s appeal, as the First District saw it, was “the extent to which an Engle class member can rely upon the findings from the class action when she individually pursues one or more Engle defendants for damages.” Id. In other words, to what extent could Ms. Martin use the Engle findings to establish the elements of her claims? Id. Reiterating its argument from previous cases, RJR pointed out that the Phase I findings

facially prove only that RJR at some point manufactured and sold an unspecified brand of cigarette containing an undefined defect; RJR committed one or more unspecified negligent acts; RJR on some occasion concealed unspecified information about the health effects of smoking and the addictive nature of smoking; and RJR and several other entities agreed to conceal said unspecified information.

Id. Therefore, RJR contended, Ms. Martin should have been required to prove, and RJR should have been allowed to contest, that the brand of cigarettes Mr. Martin smoked was defective, unreasonably dangerous, and negligently produced. 133 Id. Further, Ms. Martin should have been required to identify the particular conduct the jury deemed tortious and the particular product feature(s) the jury deemed defective and prove that such conduct and feature(s) caused Mr. Martin’s injury. Id. Because the Circuit Court had simply presumed that RJR’s tortious conduct caused her husband’s injuries, it had violated RJR’s due process right to litigate essential elements of its case. 134 Id.

*1240 The First District rejected RJR’s characterization of the Phase I findings. In doing so, it did not look to the jury instructions or the special interrogatories. Instead, it looked to the Engle Omnibus Order for interpretational assistance. In that order, Judge Kaye, who had tried Phases I and II, determined that “the plaintiff[s] ha[d] presented evidence that could support [the Phase I findings].” Friedrich v. Fetterman & Assocs., 137 So.3d 362, 365 (Fla. 2013) (emphasis added). In other words, “There was more than sufficient evidence at trial to ... support the jury verdict.” But the First District cited the Omnibus Order, not for what the Phase I jury could have determined, but for what it did determine. That a properly instructed jury could have determined that the “findings encompassed all brands” was, to the Martin II Court, proof that the jury made such a determination. Id. at 1068 . That a properly instructed jury could have “determined the defendants ... breached their duty [to all class members] by [negligently] selling [defective] cigarettes” was proof that the jury determined that as well. Id. The First District implemented this strange sufficiency-of-the-evidence standard throughout. 135 See, e.g., id. at 1069 (“[T]he record contains abundant evidence from which the jury could infer Mr. Martin’s reliance on pervasive misleading advertising campaigns for the Lucky Strike brand in particular and for cigarettes in general.” (emphasis added)).

Why did the First District, as a recognizing court, take upon itself the plaintiffs burden of proving what the Phase I jury decided? Why did it lighten that burden from one of necessary inference 136 to suffi *1241 ciency of the evidence? Why, in doing so, did it ignore the jury instructions and verdict form in favor of an inapposite ruling on a motion for directed verdict? The First District’s interpretation of Engle III provides insight: RJR’s characterization of the Phase I findings had to be rejected because it would “nullify” “the supreme court’s [Engle III] decision” and “district courts of appeal do not have the prerogative to overrule Florida Supreme Court precedent.” Id. at 1066-67 (citation omitted). Engle III had predetermined the res judicata question, and that was good enough for the First District, “[n]o matter the wording of the findings on the Phase I verdict form.” Id. at 1067.

Although the First District perceived that the Florida Supreme Court wanted it to preclude defendants’ defenses, it, like the Circuit Court in its Rule 1.200 order, could not tell which preclusion doctrine the Supreme Court had intended to invoke. The First District purported to “find it unnecessary to distinguish between” “issue preclusion versus claim preclusion.” Id. Nevertheless, the Court expressly disavowed Brown IFs assertion that plaintiffs, in accordance with issue preclusion’s actually decided requirement, had to “trot out the class action trial transcript to prove applicability of the Phase I findings.” 137 Id.

Recall that the plaintiffs in Brown II had stipulated that the Florida Supreme Court had invoked issue, rather than claim, preclusion in Engle III. Brown II, 611 F.3d at 1333 n.7. Recall also that plaintiffs in that case had requested an opportunity to “flesh out” the Phase I verdict form “using the record as a whole.” Id. at 1335 . Here, the First District rejected issue preclusion and its actually decided requirement, because “[s]uch a requirement undercuts the supreme court’s ruling in [Engle IH]-” 138 Martin II, 53 So.3d at 1067 .

In sum, the driving force behind the First District’s unusual analysis was its interpretation of Engle III . It upheld the Circuit Court because that Court “correct *1242 ly construed Engle \III] and instructed the jury accordingly on the preclusive effect of the Phase I findings.” Id. at 1069.

RJR petitioned the Florida Supreme Court for review, but the Court declined in an opinion stating,

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3(b), Florida Constitution, and the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied.

No motion for rehearing will be entertained by the Court.

R.J. Reynolds Tobacco Co. v. Martin, 67 So.3d 1050 (2011) (Table). The U.S. Supreme Court denied RJR’s petition for a writ of certiorari.

[[Image here]]

In entertaining RJR’s appeal, the First District faced a compelling constitutional argument. As RJR contended, the plaintiff had invoked “the doctrine of res judicata ... to prevent any jury determination- of the critical facts on which [the plaintiff’s] claims turn.” Reply Brief of Appellant at 1, Martin II, 53 So.3d 1060 (No. 1D09-4934). RJR had been precluded from contesting, and Ms. Martin had been spared the burden of proving, that RJR’s tortious conduct caused her late husband’s injury. The Phase I findings on which such expansive preclusion had been premised plainly “[did] not establish that there was a defect in the Lucky Strike cigarettes smoked by Mr. Martin, let alone one that caused his death.” Id. at 2. Nor did the findings “establish any negligent conduct, concealed information, or conspiratorial conduct that caused Mr. Martin’s death.” Id. The First District knew this. It knew it because the Phase I jury was not tasked with determining whether an Engle defendant’s conduct caused a class member’s injury. That determination, according to the original trial plan and Engle III , would be made by the progeny juries. But the First District also knew that Engle III , by declaring “res judicata,” had signaled or implicitly held that the Phase I findings would assist class members in holding Engle defendants liable. See Martin II, 53 So.3d at 1069 (“[W]e interpret the supreme court’s ruling in En-gle to mean individual class plaintiffs, when pursuing RJR and the other class defendants for damages, can rely on the Phase I jury’s factual findings.”). The First District’s dilemma, then, was to either acknowledge the worthlessness of the Phase I findings and “essentially nullify” Engle III in the process, Id. at 1066, or ignore the findings’ worthlessness and uphold En-gle III. Concluding that “district courts of appeal do not have the prerogative to overrule Florida Supreme Court precedent,” the First District chose the latter option. Id. (citing Hoffman v. Jones, 280 So.2d 431, 434 (Fla. 1973)).

In so choosing, the First District attempted to mitigate the worthless-findings problem. The Phase I verdict form and jury instructions were transparently worthless, so the First District looked to another source, the Engle Omnibus Order, for interpretational assistance. In that order, Judge Kaye concluded that “the plaintiffs] ha[d] presented evidence that could support [the Phase I findings].” Friedrich v. Fetterman & Assocs., 137 So.3d 362, 365 (Fla. 2013) (emphasis added). In other words, “[t]here was more than sufficient evidence at trial to ... support the jury verdict.” But the First District cited the Omnibus Order, not for what the Phase I jury could have determined, but for what it did determine. That a properly instructed jury could have determined that the “findings encompassed all brands” was, to the Martin II Court, proof that the jury did determine that. Id. at 1068 . That a properly instructed jury could have “determined the defendants ... breached *1243 their duty [to all class members] by selling cigarettes” was proof that the jury determined that as well. Id.

Ironically, in carrying out the Engle III Court’s implicit instruction to hold defendants hable to all class members, the Martin II Court ignored the very explicit instruction from which the implied instruction was derived. The Martin II Court did not give “res judicata effect to certain Phase I findings” as Engle III directed. Engle III, 945 So.2d at 1254. Instead, in blatant disregard of the defendants’ jury-trial rights, 139 it gave res judicata effect to the evidence presented at the Phase I trial.

This sleight of hand carried class plaintiffs only part of the way to establishing RJR’s liability. Even if all cigarettes were defective and unreasonably dangerous, and even if all defendants breached a duty to all class members, plaintiffs still could not prove that an unreasonably dangerous defect or a tortious act caused their- harm unless they could identify the unreasonably dangerous defect or tortious act. 140

The First District bridged the remaining gap by changing the law rather than the facts. Specifically, it implemented, without saying it was doing so, a conclusive presumption under which class members were allowed to presume rather than prove that *1244 defendants’ tortious conduct caused their injury. In doing so, the Court disregarded Engle Ill’s holding that “individualized issues such as legal causation” would be litigated in progeny trials. Engle III, 945 So.2d at 1268. Perhaps the Court was interpreting a coded message embedded in Engle III that departed from its explicit language. Or maybe the Court was breaking a lesser commandment in order to keep a greater one. In any case, under Martin II’s reasoning, legal causation would be presumed.

The Court explained its reasoning as follows: It acknowledged that “[t]he Phase I jury ... [did] not [determine] ‘whether any class members ... were injured by Tobacco’s conduct.’” Id. at 1067 (quoting Engle III, 945 So.2d at 1256). It held, however, that progeny plaintiffs need not establish that a defendant’s tortious conduct caused their harm; rather, they only needed to show that addiction to cigarettes caused their harm. Id. at 1069.

The conclusive presumption the Martin II Court implemented had serious flaws. First, it violated RJR’s due process rights. 141 The conclusive presumption also violated RJR’s right to have a jury determine whether it engaged in the wrongful conduct that caused Mr. Martin’s death. 142

In its attempt to give effect to Engle Ill’s coded instructions, the First District departed far from Engle Ill’s explicit language. Nothing in Engle III foreshadowed Martin II’s reasoning. Nothing in Engle III suggests that all cigarettes had been found defective and unreasonably dangerous or that all defendants had been found to breach their duty to all class members. And nothing in the opinion even hints at the conclusive presumption the Court created. In fact, the conclusive presumption runs contrary to Engle Ill’s assertion that legal causation would be litigated rather *1245 than presumed in progeny trials. In creating the presumption, the Court substantially altered midstream the elements of the tort claims asserted in the class action complaint and litigated in Phase I. Though the Martin II Court may have been doing its best to give effect to an instruction it interpreted as embedded in the Engle III opinion, the First District’s reasoning is so removed from Engle III as to constitute a new substantive ruling. As will be shown below, the Waggoner Court treated it as such.

3. The Fourth District Court of Appeal in Jimmie Lee Brown II Held That Engle Ill’s Instruction Meant Issue Preclusion but That the Plaintiff Did Not Need to Identify a Specific Defect or Negligent Conduct

Jimmie Lee Brown v. R.J. Reynolds Tobacco Co. (Jimmie Lee Brown I), No. 4D09-2664 (Fla. Cir. Ct. 2010), 2009 WL 2493781 was tried to a jury on issues framed by the parties’ pleadings. The plaintiff, Jimmie Lee Brown, filed suit on behalf of Roger Brown, who was deceased, on March 1, 2007 in the Circuit Court for Broward County, Florida. Complaint at 1, Jimmie Lee Brown I (No. 4D09-2664). In it, he alleged, echoing the complaints in Brown I and Martin I, that the Common Liability Findings conclusively established the elements of the plaintiffs tort claims. Id. at 5-9. The defendants’ answers, in turn, were similar to those filed in Brown I and Martin I. Answer, Jimmie Lee Brown I (No. 4D09-2664).

The trial proceeded in two phases. Jimmie Lee Brown II, 70 So.3d at 711 . In the first phase, the Court asked the jury to determine whether the decedent “was a member of the Engle class, i.e. whether he was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death.” Id. The jury found that Roger Brown was an Engle class member. 143 Id. In the second phase, a trial involving claims of strict liability and negligence, 144 the Court gave the jury binding instructions similar to those in Martin I. Jury Instructions, Jimmie Lee Brown I (No. 4D09-1664), 2009 WL 2599305 at 1-12. The jury assessed Ms. Brown’s damages at $1.2 million, which was reduced to $600,000 due to the decedent’s fault. Jimmie Lee Brown II, 70 So.3d at 714 .

In appealing the judgment to the Fourth District, RJR repeated the arguments it had made to the District Court in Brown I and to the First District in Martin II: Engle IITs res judicata declaration did not relieve the plaintiff of “the burden to prove that RJR committed particular negligent acts in a violation of a duty of care owed to Mr. Brown.” Id. Nor did it relieve the burden “to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown.” Id. Because, RJR argued, “res judicata ... necessarily mean[t] ... issue preclusion ... post-A%- gle plaintiffs must demonstrate that the issues on which they seek preclusion were ‘actually litigated’ in [Phase I].” Id.

The Fourth District agreed. Citing our decision in Brown II, the Court held that contrary to the First District’s interpretation, 145 the Supreme Court’s reference to the res judicata effect of the Phase I find *1246 ings “necessarily meant issue preclusion, not claim preclusion.” Id. at 715. Recall that the First District in Martin II allowed Ms. Martin to hold RJR liable simply by proving class membership—his addiction to an RJR cigarette and a smoking-related injury. Martin II, 53 So.3d at 1066 . The Fourth District repudiated that approach, holding instead that the “class membership” jury instruction could not be used “for the dual purpose of satisfying the element of legal causation with respect to addiction and legal causation on the underlying strict liability and negligence claims.” 146 Jimmie Lee Brown II, 70 So.3d at 714 . “[Pjlaintiffs must prove more than mere class membership and damages.” Id. at 715 . They must, the Fourth District insisted, prove “legal causation and damages.” 147 Id. In doing so, they cannot use the Phase I findings “to establish facts that were not actually decided by the jury.” Id. (quoting Brown II, 611 F.3d at 1333 ).

For alj its lip service to the defendants’ arguments and Brown II’s reasoning, however, the Fourth District “[did] not go as far as Brown [77] to require trial courts to evaluate whether ... elements of ... plaintiffs’ claims are established by the Engle findings.” Id. Specifically, though the Court believed in the necessity of issue preclusion’s actually decided requirement, it nevertheless held that plaintiffs were not “required to point to a specific defect” or “specific tortious conduct.” Id. at 717, 718. Although it believed in the necessity of proving legal causation, it held that plaintiffs need not do so—they did not need to identify defect(s) or tortious conduct, let alone prove that such defeet(s) and conduct caused their harm.

Why the sharp disconnect between analysis and holding? Because the Fourth District was “constrained by the Florida Supreme Court’s decision in Engle III.” Id. at 715. That decision makes it clear that “conduct ... was determined” and was not to be litigated in progeny cases. Id. at 717. To require plaintiffs to prove “that Tobacco committed particular negligent acts when asserting a negligence claim ... would render the Florida Supreme Court’s opinion in Engle III meaningless.” Id. at 718 (emphasis added). The Florida Supreme Court had issued a gag order, and the Fourth District had no choice but to obey.

Even the Fourth District’s constitutional concerns could not justify a departure from Engle Ill’s mandate. It was “concerned the preclusive effect of the Engle findings violates Tobacco’s due process rights.” Id. at 716. It was concerned, specifically, that allowing plaintiffs to invoke issue preclusion without its actually decided requirement constituted an “extreme application ] of the doctrine ... inconsistent with a federal right that is ‘fundamental in character.’ ” Id. (quoting Postal Tel. Cable Co. v. City of Newport, 247 U.S. 464, 476 , 38 S.Ct. 566 , 62 L.Ed. 1215 (1918)). Nevertheless, the Court affirmed the Circuit Court’s judgment in which plaintiffs were allowed to do just that and therehy hold defendants liable without proving that defendants’ wrongful conduct caused harm. Id. at 718. Thus, although the Fourth District disavowed Martin II , which it interpreted as “effectively” imple *1247 menting “claim preclusion instead of issue preclusion,” its approach tracked closely to the First District’s—the Fourth District similarly implemented an unconstitutional conclusive presumption that class members’ harm was caused by tortious conduct. 148 Id. at 716.

Although the Court followed the Engle III mandate, it emphatically voiced its disapproval. In a special concurrence endorsed by the Court, id. at 716, Chief Judge May noted the “confusion in the trial courts” stemming from a “struggle with the extent to which [the Phase I] findings resolve ultimate issues in the trial of individual claims,” Id. at 718 (May, J., concurring). He quoted from our Brown II decision to highlight our concern that the “jury findings themselves” provide no indication that “all cigarettes the defendants sold were defective and unreasonably dangerous.” Id. at 720 (quoting 611 F.3d at 1335 ). Likewise, he quoted Justice Wells’s dissent from Engle III , lamenting the many questions Engle III left unanswered, including, “How are the findings to be used in cases in which the findings are used?” Id. at 719 (quoting Engle III, 945 So.2d at 1284 (Wells, J., concurring in part and dissenting in part)). Such questions, Judge May, explained left trial courts and litigants no choice but to play “a form of legal poker.” Id. at 720. One aspect of the game was clear: “the Engle factual findings are binding.” Id. But “a lurking constitutional issue hovers over the poker game: To what extent does the preclusive effect of the Engle findings violate the manufacturer’s due process rights?” Id. With this constitutional question, along with many other questions’ lurking, “parties to the tobacco litigation [were left to] continue to play legal poker, placing their bets on questions left unresolved by En-gle.” Id.

In the wake of Chief Judge May’s special concurrence, the Florida Supreme Court initially accepted RJR’s petition to review the Fourth District’s decision. R.J. Reynolds Tobacco Co. v. Jimmie Lee Brown, 133 So.3d 931, 931 (Fla. 2014) (per curiam). But then it changed its mind: “Upon further consideration,” the Court explained, “we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss this review proceeding. No motion for rehearing will be entertained by the Court.” Id. The Supreme Court denied review because while RJR’s petition for review was pending, it agreed to answer a certified question from the Second District Court of Appeal in Philip Morris v. Douglas (Douglas II), 83 So.3d 1002, 1011 (Fla. 2d Dist. Ct. App. 2012), which asked the Florida Supreme Court to determine whether its method of affording res judica-ta to the Phase I findings denied the Engle defendants’ due process rights.

[[Image here]]

Jimmie Lee Brown II provides the sharpest illustration of the dilemma facing Florida District Courts of Appeal. Engle III issued a mandate: use the Phase I findings—use them. The final-judgment, actually decided, and due process inquiries that recognizing courts ask before affording preclusive effect to prior adjudications 149 were not necessary in progeny cases because the Engle III Court had already predetermined the res judicata effect of the Phase I findings. The District Courts of Appeal understood this much. What they did not understand, however, was how to execute. What preclusion doctrine were they supposed to use when plaintiffs could not satisfy all the elements of either claim or issue preclusion? What *1248 were they supposed to say in response to the defendants’ legitimate due process concerns?

The First and Fourth Districts took different approaches. The First District dutifully accepted the Engle III mandate and jumped through hoops—distorting facts, disregarding its recognizing-court duties, and remaking Florida tort law—in an attempt to make the mandate work. The Fourth District was less accommodating. It rejected Engle Ill’s invitation to disregard its recognizing-court duties, identifying preclusion-law elements the plaintiffs had not satisfied and the due process deprivations foisted upon defendants. But the Court could do no more than make note of such concerns. It was “constrained” by the state’s highest court to implement the En-gle III mandate. Jimmie Lee Brown II, 70 So.3d at 715 . Thus, despite its resistance, the Fourth District begrudgingly upheld two unconstitutional conclusive presumptions and violated Engle defendants’ jury-trial rights just like its more cooperative sister court did in Martin II. 150

D. In Light of Martin II and Jimmie Lee Brown II, the Middle District of Florida in Waggoner Ruled That the Pre-clusive Application of the Phase I Findings to Hold the Defendants Liable Would Not Violate Due Process

The Waggoner Court faced the same “legal-poker-game” questions that previous courts had faced. How should a recognizing court respond to an invitation to abandon its recognizing-court duties? To what extent should it preclude defendants from litigating their case on the basis of Engle III and the Phase I findings? In addressing these questions, the Court was presented with a complaint that the plaintiffs had amended to take advantage of Martin IPs favorable holding. 151 In their complaint, the plaintiffs asserted the six tort claims Engle III had “approved,” basing the claims solely on the Phase I findings. 152

As they had from the beginning of the Rule 16(c) management conference, the Engle defendants continued to contend that “the Due Process Clause of the U.S. Constitution bars Plaintiff from using the Engle findings to establish the wrongful-conduct elements of her claims, because she cannot show that any issue as to which she seeks preclusion was actually decided by the Engle jury.” Defendants’ Rule 16(c) Motion at 1, Waggoner, 835 F.Supp.2d 1244 (M.D. Fla. 2011) (No. 3:09-CV-10367). They cited our Brown II opinion to support their argument that Engle-progenj cases “are clearly governed by issue preclusion and not claim preclusion principles.” Id. at 1 n.2.

Recognizing that the District Court, bound by Brown II, would require them to *1249 “flesh[ ] out” the Phase I findings, 153 Brown II, 611 F.3d at 1335 , the plaintiffs filed a “Brawn [//] Proffer purporting to provide Engle record evidence” that elucidated what the Phase I jury decided. Wag-goner, 835 F.Supp.2d at 1256 . Like the Martin II Court, they relied heavily on the Omnibus Order—which evaluated what a properly instructed jury could have determined—as evidence of what the Phase I jury actually determined. 154 Id.-, Plaintiffs’ Response to Defendants’ Rule 16(c) Motion at 18, Waggoner, 835 F.Supp.2d 1244 (M.D. Fla. 2011) (No. 3:09-CV-10367). Adopting Martin ITs reasoning, they argued that not only did their class representatives present enough evidence at the Phase I trial that a properly instructed jury could have found that all cigarettes were defective, unreasonably dangerous, and negligently produced, they presented enough evidence that “the jury necessarily determined that all the tobacco companies’ cigarettes were defective.” Waggoner, 835 F.Supp.2d at 1265 (emphasis added) (citation and quotation marks omitted). The defendants resisted this argument, reminding the Court “that the [Phase I] jury was presented with ... many differing and contradictory theories,” id. at 1266 , and that class representatives had specifically rejected as “[a] major fiction” the theory that all cigarettes were defective. 155 Defendants’ Rule 16(c) Motion at 18, Waggoner, 835 F.Supp.2d 1244 (M.D. Fla. 2011) (No. 3:09-cv-10367) (citation omitted).

The plaintiffs adopted Martin II’s sufficiency-of-the evidence reasoning to identify what the Phase I jury decided, but they achieved an even greater level of precision than the Martin II Court. Martin II states that “the Phase I jury findings encompassed all the brands,” 53 So.3d at 1068 , but that opinion never actually identifies the defendants’ unreasonably dangerous defect(s) or tortious act(s). 156 The Waggoner plaintiffs figured out what the Martin II Court could not: it all came down to nicotine. Phase I “was, at bottom, a case about addiction to cigarettes [containing] nicotine.” Waggoner, 835 F.Supp.2d at 1265 (citation and quotation marks omitted). “[I]t was the presence of [nicotine] in every cigarette ... that made all of Defendants’ products defective,” unreasonably dangerous, and negligently produced. Id. In sum, the plaintiffs interpreted a “year-long [Phase I] trial in which myriad defect, negligence and fraud theories were vigorously litigated,” id. at 1276 (emphasis in original), as producing a *1250 record so one-sided and straightforward that a jury necessarily must have adopted a single theory of liability, one that the class representatives disavowed at trial and one that could have been litigated in days or weeks.

To the defendants, the Phase I record revealed a very different story, one of hopeless complexity. “[D]ue to the generality of the Phase I findings and the multiple theories of liability advanced in the trial record,” the defendants argued, “plaintiffs simply can’t get there (due process) from here (a Brown [IT] Proffer).” 157 Id. at 1266 .

In light of the defendants’ argument that even “the most thorough Brown [17] Proffer imaginable ... would not satisfy ... federal due process,” the District Court declined to review the plaintiffs’ Proffer in detail. Id. at 1266-67. Evaluating the Proffer would not “decide the issue before the Court.” Id. at 1267. Instead, the Court examined the threshold question of whether an actually decided inquiry was even required under the U.S. Constitution. The District Court in Brown I held that it was. Brown I, 576 F.Supp.2d at 1345 (citing De Sollar v. Harneóme, 158 U.S. 216, 221 , 15 S.Ct. 816 , 39 L.Ed. 956 (1895)). We avoided the question in Brown II because we assumed that Engle III had not sub silentio amended Florida’s issue-preclusion doctrine to eliminate its actually decided requirement. 158 Brown II, 611 F.3d at 1334 . After Martin II and Jimmie Lee Brown II, our assumption appeared faulty, 159 and the District Court thus felt the need to address the constitutional question.

The District Court observed that “[s]tate courts are generally free to develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes.” Waggoner, 835 F.Supp.2d at 1267 (quoting Richards v. Jefferson County, 517 U.S. 793, 797 , 116 S.Ct. 1761, 1765 , 135 L.Ed.2d 76 (1996)). Federal courts, pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1738 , must apply such law so long as it conforms to due process. Id. at 1260, 1267 (citing Richards, 517 U.S. at 797 , 116 S.Ct. at 1765 ). Due process, the Court observed, “protects those rights ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id. at 1267 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934)). The question the District Court examined, then, was whether “a-state’s strict adherence to the boundaries of traditional preclusion law ... is a ‘fundamental federal right.’ ” Id. The Court thus focused its attention on a substantive due process question. In doing so, it neglected the procedural due process question with which defendants were primarily concerned: Are defendants denied their property without due process of law when a plaintiff is permitted “to use the [Phase I] findings to establish [for example] that the cigarettes she smoked were defective, in the face of a possibility that no jury ever found that fact”? Defendants’ Rule 16(c) *1251 Motion at 4, Waggoner, 835 F.Supp.2d 1244 (M.D. Fla. 2011) (No. 3:09-CV-10367).

In tackling its substantive due process question, the Court found the defendants unable to identify any fundamental-right deprivations. The Court implicitly acknowledged that Florida courts had changed the state’s preclusion law in a significant way for f?«/Ze-progeny cases. 160 Specifically, it assumed, as we did in Brown II, that the Florida Supreme Court meant issue preclusion when it said “res judicata,” 161 and it interpreted the Florida courts as eliminating issue preclusion’s actually decided requirement. Eliminating the actually decided requirement did not constitute a due process deprivation because defendants did not have a fundamental right “to a strict application of traditional preclusion law.” Waggoner, 835 F.Supp.2d at 1268-69 .

Although the Court conceded that the defendants had fundamental rights to an opportunity to be heard and against arbitrary deprivations of property, it held that such rights had not been violated in Engle- progeny cases like Waggoner. Id. at 1272-77 . In reaching this conclusion, it first observed that defendants had been afforded an opportunity to be heard at Phase I: “Defendants had every reason to litigate each potential theory of liability to the fullest extent possible.” Id. at 1276 . It ae-knowledged that Phase I did not afford defendants “their day in court on ... legal causation, comparative fault, and damages,” id., but the Court assumed that such a day would come later because “the Phase I jury ‘did not determine whether the defendants were liable to anyone.’ ” 162 Id. at 1272 (quoting Engle III, 945 So.2d at 1263).

After Phase I, “defendants continue to vigorously litigate each and every remaining issue in each and every progeny suit”; thus, “the preclusive application of the Phase I approved findings in no way [arbitrarily] deprives them of property.” Id. What were the “remaining issues” to which the Court referred? First, plaintiffs “addiction] to one of Defendants’ cigarettes containing nicotine”; second, “that such addiction was the legal cause of [plaintiffs harm]”; third, “that [plaintiffs harm] manifested before the class membership cut-off date”; and fourth, “that no other procedural bar prevents any aspect of her claim.” Id. at 1273 (emphasis added). Whether defendants’ tortious conduct caused plaintiffs’ harm did not make the District Court’s list of remaining issues on which defendants deserved an opportunity to be heard. 163

Returning to its core substantive due process reasoning, the Waggoner Court *1252 again emphasized that defendants did not have a fundamental right to traditional preclusion law. Florida courts needed “flexibility to accommodate the due process interests of both the Defendants and the thousands of Engle progeny plaintiffs.” Id. at 1277. The Court did not expound on the limits of such flexibility and did not mention any concerns regarding Florida courts’ changing the state’s preclusion doctrines with respect to only one group of unpopular defendants after the parties had already litigated part of their lawsuit.

* ⅜ *

The Waggoner Court failed to directly engage with the defendants’ due process arguments. It reframed as substantive their procedural due process concerns, and refused to endorse the proposition that due process prevents state courts from changing their preclusion doctrines. Naturally, courts sometimes deviate from or change established procedures and “not all [such] deviations ... result in constitutional infirmity.” Honda Motor Co. v. Oberg, 512 U.S. 415, 430 , 114 S.Ct. 2331, 2339 , 129 L.Ed.2d 336 (1994). But query whether courts deny due process when they abrogate common-law practice so as to descend significantly below the level of protection afforded at common law. Id. at 430-33 , 114 S.Ct. at 2331, 2339-42 . Query also whether state courts can change preclusion law with respect to a few unpopular defendants in a lawsuit that has already been partially litigated. Waggoner does not say.

The Waggoner Court’s silence on these matters may, in part, be explained by its thorough misunderstanding of Florida preclusion law. The Court assumed it was dealing with issue preclusion. It was not. 164 It interpreted Martin II as requiring En- pte-progeny plaintiffs to prove legal causation separately from class membership. That interpretation was incorrect. 165 Finally, the Court assumed the Florida Supreme Court meant what it said when it noted in Engle III that “the Phase I jury ‘did not determine whether the defendants were liable to anyone.’ ” Id. at 1272 (quoting Engle III, 945 So.2d at 1263). The Florida Supreme Court later disavowed that statement in Douglas III. See Douglas III, 110 So.3d at 433-34 (“Respectfully, the Engle judgment was a final judgment on the merits.”).

The upshot of all this confusion is that the Waggoner Court never evaluated whether defendants were deprived of property without due process of law when they were held liable despite plaintiffs never proving, and defendants never having an opportunity to contest, that defendants’ tortious conduct caused plaintiffs’ harm. 166 The answer to that question, in my estimation, is simple.

E. The Second District Court of Appeal in Douglas II Accepted Martin II ⅛ Reasoning, But Certified the Due Process Question to the Florida Supreme Court

As noted earlier, Waggoner was the lead case among the cases awaiting trial in the Middle District of Florida. With the Wag-goner preclusion decision in hand, the judges presiding over the remaining cases were free to proceed. Moving forward, progeny courts would accord the Phase I findings preclusive effect in accordance *1253 ■with the Martin II formulation of res judi-cata. The threshold question for progeny juries would be whether the plaintiff proved addiction to a defendant’s cigarettes; if so, the trial would focus, not on the causal connection between the defendant’s tortious conduct and the plaintiffs injury, but on damages arising from the plaintiffs smoking-related disease and the comparative negligence of the plaintiff and any other Engle defendant involved.

Earl Graham’s case against RJR and Philip Morris was one of the lead progeny cases handled under the Waggoner umbrella. Whether it would be tried in accordance with preclusion law as set forth in Martin II , though, would depend on the Florida Supreme Court’s ruling on a question the Second District Court of Appeal had certified in Douglas II, 83 So.3d at 1011 , regarding the due process implications of the way in which progeny courts had been applying the Phase I findings.

The case had been brought in the Circuit Court for Hillsborough County, Florida, by James Douglas as the representative of the estate of his late wife, Charlotte Douglas. Its complaint presented the six Engle III- approved claims and, as in Brown I, Martin I, Jimmie Lee Brown I, and Waggoner , cited the Engle III opinion and the Common Liability Findings as conclusive proof of the elements of the claims. 167 Third Amended Complaint at 7-8, Douglas v. Philip Morris US A Inc. CDouglas I), No. 08-CA-008108 (Fla. Cir. Ct. Mar. 12, 2010). The defendants answered the complaint, denying liability and raising the same due process issues they had raised in those cases. Answer to Amended Complaint, Douglas I, No. 08-CA-008108.

Douglas I was tried on the plaintiffs’ 'claims of strict liability and fraudulent concealment. 168 The plaintiff produced evidence of his wife’s addiction to the defendants’ cigarettes 169 and that smoking caused her death. After the defendants rested, the Court instructed the jury, first, that the plaintiff had to prove membership in the Engle class; that is, that the decedent was addicted to and injured by cigarettes containing nicotine. Douglas II, 83 So.3d at 1004 . Next, as in Martin II and Jimmie Lee Brown II, the Court informed the jury that it had to “accept the eight Phase I Engle findings as proven fact.” Id. at 1005. Accordingly, if it found that the decedent’s death was caused by cigarettes (rather than the defendants’ tortious conduct), the jury had only to determine the percentage of the cigarettes she smoked that were of the respective defendants’ brands. Id. at 1003.

The jury [found] each of the named defendants strictly liable for Mrs. Douglas’ death, apportioning fault as follows: 50% to Mrs. Douglas, 18% to Philip Morris, 5% to R.J. Reynolds, and 27% to Lig-gett. Additionally, the jury found against Mr. Douglas on the issue of Mrs. Douglas’ detrimental reliance on concealment or omissions by the Tobacco Companies.

*1254 Id. The Court entered judgment in accordance with the jury’s verdict, and the tobacco companies appealed, claiming once again,that allowing a class plaintiff to recover against an Engle defendant solely on proof of addiction to the defendant’s cigarettes and resulting injury constituted a denial of due process. Id. at 1010.

In addressing the due process issue, the Second District reviewed Brown II, Martin II, and Jimmie Lee Brown II. The Court noted that we had concluded in Brown II that Engle Ill’s “res judicata” statement meant issue preclusion. Id. at 1006 (citing Brown II, 611 F.3d at 1383 ). However, the Court also noted that we had “pointed out that the parties disagree as to what issue preclusion meant” 170 and quoted the following passage from Brown II to substantiate:

Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes[ ]” for every time period for every defendant except Brooke Group, Ltd., Inc. Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type or brand of cigarette sold by a defendant during the relevant time period was defective and unreasonably dangerous. Under the plaintiffs’ broader view[,] the jury’s finding must mean that all cigarettes the defendants sold were defective and unreasonably dangerous because there is nothing to suggest that any type or brand of cigarette is any safer or less dangerous than any other type or brand.

Id. at 1006-07 (quoting Brown II, 611 F.3d at 1333 ). The Court then said that, we

went on to observe that the plaintiffs had not pointed to anything in the transcript of the Engle trial that showed that the jury made such specific findings[,] ... advised the trial court that the findings were entitled to res judicata effect as to the factual issues that were litigated specifically resolved in the record [and] instructed the trial court on remand to determine what particular issues were litigated and resolved in Phase I and then to preclude the defendant tobacco companies from relitigating those issues.

Id. at 1007.

The Second District then compared the First District’s decision in Martin II , which interpreted res judicata as claim preclusion, with the Fourth District’s decision in Jimmie Lee Brown II, which interpreted res judicata as issue preclusion. Id. at 1007-11. The Court found a substantial difference in the two Courts’ analyses.

The First District, citing the statements in the Engle trial judge’s Omnibus Order “as conclusive on each of the elements of the [plaintiffs] causes of action,” id. at 1008, concluded that the Circuit Court “properly relied on the Phase I findings and that there was no need for the plaintiff class members to ‘independently prove up those elements or demonstrate the relevance of the findings to their lawsuits.’ ” *1255 Id. at 1008 (quoting Martin II, 53 So.3d at 1069 ).

The Fourth District, on the other hand, believed that the Phase I findings “preclu-sively establish the conduct elements of the strict liability and negligence claims,” but not the causation element of those claims. Id. at 1009 (quoting Jimmie Lee Brown II, 70 So.3d at 715 ) (emphasis added). “Legal causation,” the Fourth District concluded, “and damages, must be proven in the second phase of trial. Additionally, the Fourth District gave lip service to the idea that legal causation for negligence and strict liability should be distinguishable from the causation that proves addiction resulting from class membership.” Id. (citing Jimmie Lee Brown II, 70 So.3d at 715 ). Specifically, the Jimmie Lee Brown II Court reasoned, rather than merely proving a causal connection between cigarettes and injury, progeny plaintiffs should be required to show a causal connection between a defendant’s tortious conduct and the plaintiffs injury: “post-Engle III plaintiffs must show ‘(i) [that] the defendant’s failure to exercise reasonable care was a legal cause of decedent’s death[] and (ii) [that] the defective and unreasonably dangerous cigarettes were a legal cause of decedent’s death.’ ” Id. (quoting Jimmie Lee Brown II, 70 So.3d at 715 ).

After concluding its review of Martin II and Jimmie Lee Brown II, the Douglas II Court opted for Martin IPs reasoning, finding no violation of due process. 171 The Court concluded, however, that the due process issues the Engle defendants had been raising were of such significance that the Florida Supreme Court should address them. The Court therefore certified the following question to the Florida Supreme Court:

DOES ACCEPTING AS RES JUDICA-TA THE EIGHT PHASE I FINDINGS APPROVED IN ENGLE V. LIGGETT GROUP, INC., 945 So.2d 1246 (Fla. 2006), VIOLATE THE TOBACCO COMPANIES’ DUE PROCESS RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

Id. at 1011.

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

The Florida Supreme Court accepted the certification and entertained the certified question wearing two hats. First, it wore the hat of the rendering Engle III Court, attempting to recall what it had in mind when it decided Engle III seven years before. By invoking “res judicata,” did it intend to invoke claim preclusion? In other words, did it implicitly enter judgment pursuant to the Phase I findings, which it interpreted as establishing the Engle defendants’ liability to all class members? Or did it intend to invoke issue preclusion, interpreting the Phase I findings as factual findings upon which future courts would enter judgment?

Second, it wore the hat of a recognizing court, applying state preclusion law and evaluating whether doing so denied the *1256 defendants of their property without due process of law. I consider each of these two hats in turn.

* * *

The Second District, in its opinion certifying the constitutional question, explained the preclusive effect the Phase I findings would have if they represented factual determinations of whether the defendants engaged in tortious conduct, on the one hand, or full-blown liability determinations, on the other. It pointed to our opinion in Brown II and the Fourth District’s in Jimmie Lee Brown II as examples of courts interpreting the Phase I findings as factual findings and the First District’s opinion in Martin II as an example of a court portraying the Phase I findings as liability determinations as to each of the Engle III- approved tort claims. Douglas II, 83 So.3d at 1006-11 .

Under Brown ITs reasoning, the Phase I findings were factual determinations that foreclosed litigation in progeny lawsuits over whether each of the defendants engaged in six kinds of tortious conduct. 172 The findings did not represent a jury determination that the defendants were liable to all class plaintiffs for all six torts. Thus, litigation of other essential facts— causation (which requires identifying tor-tious conduct) 173 and damages—would not be foreclosed or limited. Indeed, consistent with issue preclusion’s actually decided requirement, 174 the findings would be “given effect to the full extent of, but no farther than, what the jury found.” Brown II, 611 F.3d at 1333 . This approach was consistent *1257 with what the Phase I findings said on their face and Engle Ill’s holding that “individualized issues such as legal causation [and] comparative fault” would be litigated in progeny trials. Engle III, 945 So.2d at 1268. The Fourth District, in Jimmie Lee Brown II, agreed with this limitation (even if it was “constrained” not to implement it): the findings clearly were not, and should not be treated as, liability determinations; rather, they should operate to foreclose litigation only as to facts the Phase I jury actually found. 70 So.3d at 714-15 . Thus, every progeny plaintiff should be required to prove, and defendants should be able to contest, that the conduct deemed tortious in Phase I caused the plaintiffs harm. 175 Id. at 715 .

In Martin II , the First District purported to “generally agree[ ]” with the Brown II approach, but concluded that determining what the Phase I jury actually decided, as issue preclusion requires, was entirely unworkable and would “undercut” the En-gle III plan. 176 The First District interpre

This text is long and has been trimmed here. Open the source document for the complete record.