Opposition Brief — R.J. Reynolds Tobacco Company, et al., Petitioners v. Theresa Graham, as Personal Representative of Faye Dale Graham, Deceased

Supreme Court briefNov 20, 2017

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No. 17-415

IN THE

Supreme Court of the United States

————

R.J. REYNOLDS TOBACCO COMPANY AND

PHILIP MORRIS USA INC.,

Petitioners,

THERESA GRAHAM, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FAYE DALE GRAHAM,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF IN OPPOSITION

————

ELIZABETH J. CABRASER

ROBERT J. NELSON

SARAH R. LONDON

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

275 Battery St., 29th Floor

San Francisco, CA 94111

SAMUEL ISSACHAROFF

Counsel of Record

40 Washington Square

South, 411J

New York, NY 10012

(212) 998-6580

si13@nyu.edu

KENNETH S. BYRD

ANDREW R. KAUFMAN

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

150 Fourth Avenue North

Suite 1650

Nashville, TN 37219

JASON L. LICHTMAN

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

250 Hudson Street

8th Floor

New York, NY 10013

Counsel for Respondent

November 20, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

Do this Court’s prior denials of Petitioners’ repeated

petitions for writs of certiorari from the same factual

determinations in the same Florida proceedings,

involving the same claims for relief, foreclose a

recurring Petition raising the same argument?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

The Engle Class Litigation .......................

The Decision in Douglas ...........................

The Decision in Walker .............................

The Proceedings Below .............................

1. Trial......................................................

2. The Panel Decision ..............................

3. The En Banc Decision .........................

REASONS TO DENY THE WRIT ......................

I. THE NINETEENTH TIME IS NOT A

CHARM .....................................................

A. The Law of the Case Precludes Relitigation of the Same Collateral Attack

on State Court Judgments ..................

B. The Factual Predicates for Liability

Were Proven at Trial in Engle ............

C. States May Craft Their Own

Preclusion Rules Within Broad

Constitutional Limits ..........................

D. The Facts Underlying the Engle

Findings Have Been Independently

Established

Other

Final

Proceedings ..........................................

(iii)

TABLE OF CONTENTS—Continued

Page

II. PETITIONERS DO NOT SERIOUSLY

ARGUE PREEMPTION ...........................

III. THERE IS NO CONFLICT OF LAW OR

SUBSTANTIAL QUESTION OF LAW

TO RESOLVE ...........................................

CONCLUSION ....................................................

APPENDIX: QUESTIONS PRESENTED IN

DENIALS OF PETITIONS FOR CERTIORARI ...

TABLE OF AUTHORITIES

CASES

Page(s)

Altria Grp., Inc. v. Good,

555 U.S. 70 (2008) .....................................

Arizona v. California,

460 U.S. 605 (1983) ...................................

Austin v. Tennessee,

179 U.S. 343 (1900) ...................................

Blonder-Tongue Labs., Inc. v.

University of Ill. Found.,

402 U.S. 313 (1971) ................................... 23, 24

Brown v. Allen,

344 U.S. 443 (1953) ................................... 12, 14

Brown v. R.J. Reynolds Tobacco Co.,

611 F.3d 1324 (11th Cir. 2010) .................

Christianson v. Colt Indus.

Operating Corp.,

486 U.S. 800 (1988) ...................................

Cipollone v. Liggett Grp., Inc.,

505 U.S. 504 (1992) ...................................

Engle v. Liggett Group, Inc.,

945 So. 2d 1246 (Fla. 2006),

cert. denied, 552 U.S. 941 (2007) .............passim

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .....................................

Exxon Mobil Corp. v. Saudi Basic Indus.,

544 U.S. 280 (2005) ................................... 16, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Fayerweather v. Ritch,

195 U.S. 276 (1904) ................................. 5, 7, 24

FDA v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) ......................... 9, 11, 12, 30

Graver Tank & Mfg. Co. v. Linde Air

Prods. Co., 336 U.S. 271 (1949) ................

Hansberry v. Lee,

311 U.S. 32 (1940) ..................................... 22, 25

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) ....................... 10, 16, 23, 24

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ...................................

Miroyan v. United States,

439 U.S. 1338 (1978) .................................

O’Melveny & Myers v. FDIC,

512 U.S. 79 (1994) .....................................

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) ................................... 23, 24

Philip Morris USA, Inc. v. Douglas,

110 So. 3d 419 (Fla. 2013), cert. denied,

134 S. Ct. 332 (2013) ................................passim

Philip Morris USA Inc. v. Douglas,

cert. denied, 134 S. Ct. 332 (2013) ........ 6, 14, 15

Postal Tel. Cable Co. v. Newport,

247 U.S. 464 (1918) ................................... 22, 23

vii

TABLE OF AUTHORITIES—Continued

Page(s)

R.J. Reynolds Tobacco Co. v. Engle,

cert. denied, 552 U.S. 941 (2007), reh’g

denied, 552 U.S. 1056 (2007) ...................... 5, 22

R.J. Reynolds Tobacco Co. v. Engle,

672 So. 2d 39 (Fla. 3d DCA 1996),

rev. denied, 682 So. 2d 1100 (Fla. 1996) ....

R.J. Reynolds Tobacco Co. v. Marotta,

214 So. 3d 590 (Fla. 2017) ........................

R.J. Reynolds Tobacco Co. v. Walker,

cert. denied, 134 S. Ct. 2727 (2014) ..........

Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70 (1955) .....................................

Richards v. Jefferson County,

517 U.S. 793 (1996) ................................... 22, 23

Taylor v. Sturgell,

553 U.S. 880 (2008) .............................. 22-23, 24

Spriestma v. Mercury Marine,

537 U.S. 51 (2002) .....................................

Stop the Beach Renourishment, Inc. v.

Florida Dep’t of Envtl. Prot.,

560 U.S. 702 (2010) ...................................

United States v. Philip Morris USA, Inc.,

449 F. Supp. 2d 1 (D.D.C. 2006), aff’d in

pertinent part, 566 F.3d 1095 (D.C. Cir.

2009), cert. denied, 130 S. Ct. 3501

(2010) ......................................................... 26, 27

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Walker v. R.J. Reynolds Tobacco Co.,

734 F.3d 1278 (11th Cir. 2013),

cert. denied, 134 S. Ct. 2727 (2014) .........passim

Wyeth v. Levine,

555 U.S. 555 (2009) .......................... 9-10, 28, 30

CONSTITUTION

U.S. Const. art. I, § 8, cl. 3 ...........................

U.S. Const. art. VI, cl. 2 ...............................

U.S. Const. amend. X ...................................

U.S. Const. amend. XIV ..............................passim

STATUTES

28 U.S.C. § 1257 ...........................................

28 U.S.C. § 1738 ........................................... 6, 10

COURT FILINGS

Reply Br. for Pet’r R.J. Reynolds, Philip

Morris USA Inc. v. Douglas, No. 13-191,

2013 WL 4875108 (Sept. 13, 2013), cert.

denied, 134 S. Ct. 332 (2013) ....................

OTHER AUTHORITIES

Altria, Smoking & Health Issues, www.

altria.com/our-companies/philipmorrisusa/

smoking-and-health-issues/Pages/default.

aspx (last visited Nov. 16, 2017) ..............

R.J. Reynolds, Guiding Principles and

Beliefs, www.rjrt.com/transforming-toba

cco/guiding-principles-and-beliefs/ (last

visited Nov. 16, 2017) ...............................

INTRODUCTION

Not often does a petition for certiorari confidently

claim to know exactly what the respondent will argue

in opposition. This case is the exception. Repeatedly

the Petition refers to the arguments to come and

proposes to begin the colloquy unilaterally. Why such

certainty? As the Petition acknowledges, the simple

answer is that we have all seen this movie before. This

is the nineteenth petition raising the same due process

claim that the issue preclusive rulings of the Florida

state courts in the Engle litigation somehow denied

the tobacco defendants an opportunity to challenge,

yet again, whether cigarettes cause cancer, whether

nicotine is addictive, whether the tobacco companies

obfuscated the critical health issues, whether the

companies manipulated nicotine levels, and other such

claims that have been established by the federal

authorities, by rulings of the D.C. federal courts, and

to a large extent, even acknowledged on the public

websites of the tobacco defendants themselves.1

With the passage of time, the overwhelming majority of what are termed Engle-progeny cases in the

federal courts have been tried and resolved (with each

side winning about half of the cases), or have settled.

Only about a dozen cases remain, and the breathless

claims about issues of national significance implicate

only the few cases still pending on appeal. The Court

rightly rejected the eighteen prior petitions, and the

normal processes of trial and judgment, negotiation

and settlement, all took hold. This Petition raises no

issue that was not the subject of repeated presentation

For ease of reference the Questions Presented in each of the

eighteen prior petitions are gathered in Respondent’s Appendix

at RA. 1a-18a.

to the Court. Indeed, the en banc ruling below is

identical to the ruling in Walker v. R.J. Reynolds

Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), cert.

denied, 134 S. Ct. 2727 (2014), itself rejected for en

banc review by the Eleventh Circuit and denied

certiorari by this Court.

The only reason this case went en banc was a stray

ruling by a panel that state tort law is presumptively

preempted by federal law, unless and until Congress

has acted affirmatively to authorize state law. Under

the panel approach, state law is preempted in any

domain where Congress could act, even if there is no

conflict with any actual congressional enactment. This

jaw-dropping extension of this Court’s preemption

precedents to core areas of traditional state law was so

astonishing that Petitioners’ attorney managed to

utter not a single word in defense of this ruling during

the en banc argument. Even now, Petitioners muster

a mere two pages to give a perfunctory rendition of the

argument below. The Eleventh Circuit was obligated

to take this case en banc as a matter of internal

doctrinal housekeeping. Cleaning up a panel-level

mess is not the job of this Court.

STATEMENT OF THE CASE

A. The Engle Class Litigation.

The history of the underlying tobacco litigation has

been presented to this Court eighteen times in

different petitions for certiorari, and is again set forth

in the opinion below. PA. 3-16. The basic facts emerge

from a case begun twenty years ago when Dr. Howard

Engle and others filed a class action against Petitioners and other cigarette manufacturers to recover

damages for diseases caused by their addiction to

smoking the defendants’ cigarettes containing nico-

tine. R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39,

40 (Fla. 3d DCA 1996), rev. denied, 682 So. 2d 1100

(Fla. 1996). They brought claims for, inter alia, strict

liability, negligence, fraud, fraudulent concealment,

conspiracy, and intentional infliction of emotional

distress. Id. The trial court certified a class of plaintiffs

“who have suffered, presently suffer or have died from

diseases and medical conditions caused by their

addiction to cigarettes that contain nicotine.” Id.

To organize the proceedings, the trial court developed

a three-phase trial plan. Engle v. Liggett Group, Inc.,

945 So. 2d 1246, 1256 (Fla. 2006), cert. denied, 552

U.S. 941 (2007). Phase I was a lengthy trial on all

issues that applied to “the class as a whole.” Id. After

the class prevailed on all counts, including winning a

determination of entitlement to punitive damages, the

court conducted a two-part Phase II trial. The same

jury first resolved the remaining individual issues for

the three named class representatives’ claims, and

then determined the total amount of punitive damages

for the class as a whole. Id. at 1257. At the conclusion

of Phase II, the trial court awarded compensatory

damages to the three class representatives and

entered a final judgment in favor of the Engle class on

all counts but one. Id.

Before the trial court could proceed to Phase III, the

Florida Supreme Court reviewed the entire proceeding, reversing parts (such as the punitive damages

award), but affirming the core findings on the wrongful conduct of the cigarette companies. Engle, 945

So. 2d at 1262-65. The Florida Supreme Court held

that class certification had been appropriate for Phase

I but that the class would be decertified going forward

because all the common questions had been answered

in Phase I. Id. at 1267-68. The Florida Supreme Court

held that the remaining issues of specific causation,

comparative fault, and damages were too individualized for continued class treatment. Id.

The Florida Supreme Court then determined that a

subset of the factual findings from the jury in the

class trial would be retained. Giving class members

one year to file individual suits, the court decreed

that these “common core findings” from the Phase I

class trial would have res judicata effect. Id. at 1269,

1276-77. The Phase I findings going to the conduct of

defendants were sufficiently specific to be common to

the entire class. These findings would apply in the

individual suits (termed the “Engle progeny cases”),

while the findings that “involved highly individualized

determinations,” i.e., those relating to fraud and

emotional distress, would not. Id. at 1269; PA. 12. The

Florida Supreme Court also affirmed the use of the

common findings as the basis for judgment for two of

the three individual plaintiffs in the Phase II trials

(the third being barred by the statute of limitations).

PA. 12.

For purposes of the progeny litigation, the common

findings on the defendants’ conduct established on a

class-wide basis that each defendant had acted

negligently and sold cigarettes that were defective and

unreasonably dangerous. Engle, 945 So. 2d at 1255,

1276-77. Based on the factual determination that

these findings applied equally to the class members

regardless of particular circumstances (e.g., what

brand of cigarettes they smoked, when they began

smoking, and so forth), the Florida Supreme Court

directed that individual class members could proceed

with the common findings having “res judicata effect

in any subsequent trial between individual class

members and the defendants.” Id. at 1277.

The cigarette companies sought review of Engle in

this Court, contending that the approved jury findings

were too vague to have prospective preclusive effect.

This Court twice denied certiorari. R.J. Reynolds Tobacco

Co. v. Engle, 552 U.S. 941 (2007), reh’g denied, 552

U.S. 1056 (2007).

B. The Decision in Douglas.

In Philip Morris USA, Inc. v. Douglas, 110 So. 3d

419 (Fla. 2013), the Florida Supreme Court reaffirmed

the critical Engle findings that the common core issues

of the cigarette companies’ decades of wrongful acts,

as they pertained to the various state-law causes of

action, had been tried and determined on a class-wide

basis. Id. at 429-31, 436. The court likewise reaffirmed

that substantial evidence supported the findings on

the cigarette companies’ common conduct with regard

to the class of smokers. Id. at 428, 433 (holding that

progeny plaintiffs may efficiently rely upon the

approved jury findings “[b]ecause these findings go to

the defendants’ underlying conduct, which is common

to all class members and will not change from case to

case”). Thus, the Florida Supreme Court confirmed the

propriety of using these findings in individual classmember trials, as it had done with regard to the Phase

II trials in Engle itself. Id. at 433, 436.

Petitioner Philip Morris had argued in Douglas that

Fayerweather v. Ritch, 195 U.S. 276 (1904), foreclosed

the preclusive use of the common Engle jury findings

on due process grounds. The Florida Supreme Court

rejected Philip Morris’s argument. Douglas, 110 So. 3d

at 435.2 The court concluded that the cigarette

The lone dissenter in Douglas found no due process violation

but disagreed with the majority’s interpretation and application

of Florida’s claim preclusion rules.

companies’ due process rights had not been abridged

for the simple reason that they had received notice and

an opportunity to be heard during the Engle classaction proceedings. Id. at 431-32. Philip Morris had

also claimed that the Engle findings were insufficiently specific to be given preclusive effect in light of

the trial record, but the Douglas court held that “by

accepting some of the Phase I findings and rejecting

others based on lack of specificity, this Court in Engle

necessarily decided that the approved Phase I findings

are specific enough.” Id. at 428 (citing Engle, 945 So.

2d at 1255).

Philip Morris again sought certiorari on its due

process claim, which was denied. Philip Morris USA

Inc. v. Douglas, 134 S. Ct. 332 (2013).

C. The Decision in Walker.

In Walker, the Eleventh Circuit heard appeals from

two judgments entered on jury verdicts in Engle

progeny cases that were in federal court on diversity

jurisdiction. 734 F.3d at 1286. The Eleventh Circuit,

in an opinion by Judge Pryor, held that, “federal courts

sitting in diversity are bound by the decisions of state

courts on matters of state law.” Id. at 1284. Therefore,

under the Full Faith and Credit Act, 28 U.S.C. § 1738,

the court’s task was “not to decide whether the decision in Douglas was correct as a matter of Florida

law.” Id. at 1287 (citing Erie R.R. Co. v. Tompkins, 304

U.S. 64, 78 (1938)). The Eleventh Circuit could not sit

as a court of appeals over the decision of the Florida

Supreme Court. Rather, the court undertook the limited inquiry of “whether giving full faith and credit to

the decision in Engle, as interpreted in Douglas, would

arbitrarily deprive R.J. Reynolds of its property

without due process of law.” Id. at 1287. The court thus

declined Petitioner Reynolds’ invitation to “conduct a

searching review of the Engle class action and apply

what amounts to de novo review of the analysis of

Florida law in Douglas,” because it “lack[ed] the power

to do so.” Id.

The Eleventh Circuit proceeded to reject the basic

premise of Petitioners’ argument: “R.J. Reynolds argues

that the Supreme Court held in Fayerweather … that

parties have a right, under the Due Process Clause, to

the application of the traditional law of issue preclusion, but we disagree.” Id. at 1289. The Eleventh

Circuit explained that, in fact, this Court “had no

occasion in Fayerweather to decide what sorts of

applications of issue preclusion would violate due

process.” Id. The Eleventh Circuit further held that,

“[i]f due process requires a finding that an issue was

actually decided, then the Supreme Court of Florida

made the necessary finding . . . .” Id. The Douglas court

did so “when it explained that the approved findings

from Phase I ‘go to the defendants[’] underlying

conduct which is common to all class members and will

not change from case to case.’” Id. (quoting Douglas,

110 So. 3d at 428).

In rejecting Reynolds’ due process argument, the

Eleventh Circuit concluded that “R.J. Reynolds had a

full and fair opportunity to litigate the issues of

common liability in Phase I.” Id. at 1288. Additionally,

“R.J. Reynolds also has had an opportunity to contest

its liability in these later cases brought by individual

members of the Engle class . . . [and] has vigorously

contested the remaining elements of the claims,

including causation and damages.” Id. Accordingly,

the Eleventh Circuit affirmed the verdicts and refused

to disturb Douglas “[b]ecause R.J. Reynolds had a full

and fair opportunity to be heard in the Florida class

action and the application of res judicata under

Florida law does not cause an arbitrary deprivation of

property[.]” Id. at 1280-81.

Certiorari was again denied. R.J. Reynolds Tobacco

Co. v. Walker, 134 S. Ct. 2727 (2014).

D. The Proceedings Below.

1. Trial

The present case involves an appeal of a jury verdict

on behalf of Faye Graham. Like so many others,

Graham started smoking as a teenager. Despite

repeated efforts to quit smoking as an adult, including

hypnosis and chewing gum, Graham proved to be too

addicted to stop successfully and smoked until she

died of lung cancer at age 58.

The case was tried to a jury. The district judge

instructed the jury with the approved common Engle

findings. PA. 16-17. The jury determined that addiction to smoking Petitioners’ cigarettes was the cause

of Ms. Graham’s death and found in her favor on

negligence, strict liability, and intentional tort claims.

As often occurs in the complicated fact presentations

of tobacco cases, the jury allocated 20% of the fault

to R.J. Reynolds, 10% to Philip Morris, and the

remainder to Ms. Graham herself. PA. 17. The district

court entered judgment against R.J. Reynolds for

$550,000, and against Philip Morris for $275,000. Id.

2. The Panel Decision.

On appeal, the panel per Judge Tjoflat, held that use

of the Engle findings was preempted by federal law

because “Congress has regulated cigarettes for many

years” but “has never banned them.” PA. 344. Although

the panel referenced a handful of federal statutes that

addressed aspects of cigarette production and labeling,

the core of the opinion was a holding that customary

state police powers are preempted based on the

absence of a federal prohibition of cigarettes. The

panel discerned from Congressional inaction a “clear”

purpose to “leav[e] to adult consumers the choice

whether to smoke cigarettes or to abstain.” PA. 353.

The panel relied on an administrative law decision,

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120 (2000), in which the Court held that the FDA

lacked authority to regulate cigarettes, in part because

such authority would have required the FDA to ban

them. From this, the panel concluded that “regulation

of cigarettes rests on the assumption that they will

still be sold” and that consumers will maintain a right

to choose to smoke or not to smoke.” PA. 344 (internal

quotation marks omitted).

The panel held that this congressional “assumption”

preempted Florida’s strict liability and negligence law

as expressed through the Engle findings. PA. 348-53.

The panel concluded that the Engle findings “imposed

a common-law duty on cigarette manufacturers that

they necessarily breached every time they placed a

cigarette on the market. Such a duty operates, in

essence, as a ban on cigarettes.” PA. 353. This, the

panel held, “conflicts with Congress’s clear purpose

and objective of regulating—not banning—cigarettes.”

Id.

Respondent petitioned for rehearing en banc on the

basis that the panel opinion conflicted with Supreme

Court and Eleventh Circuit decisions, including Walker,

permitting common law claims against cigarette

manufacturers, and that the panel opinion inferred

preemption from congressional inaction, even though

this Court’s precedent “explicitly rejects the notion

that mere congressional silence on a particular issue

may be read as pre-empting state law.” Wyeth v.

Levine, 555 U.S. 555, 602-03 (2009) (Thomas, J.,

concurring) (citation omitted). The court granted

rehearing.

3. The En Banc Decision.

The en banc Eleventh Circuit, again in an opinion

by Judge Pryor, “reaffirm[ed]” Walker’s due process

holding. PA. 3. The court reiterated, point-for-point,

what it had said in Walker. The court stated that the

Full Faith and Credit Act, 28 U.S.C. § 1738 “requires

federal courts to give preclusive effect to a state court

judgment to the same extent as would courts of the

state in which the judgment was entered,” PA. 18

(citation omitted), so “long as the state proceedings

‘satisfied the minimum procedural requirements’ of

due process.” PA. 24 (quoting Kremer v. Chem. Constr.

Corp., 456 U.S. 461, 481 (1982)).

The court recognized that “R.J. Reynolds and Philip

Morris do not . . . contend that they were denied notice

or an opportunity to be heard, the central features of

due process.” Id. And the court explained that due

process “does not require a state to follow the federal

common law of res judicata and collateral estoppel.”

PA. 25. Instead, “[t]he Due Process Clause requires

only that the application of principles of res judicata

by a state affords the parties notice and an opportunity

to be heard so as to avoid an arbitrary deprivation

of property.” PA. 26. In this case, “[t]he tobacco

companies were given an opportunity to be heard on

the common theories in a year-long trial followed by

an appeal to the Florida Supreme Court and later

individual trials and appeals on the remaining issues

of proximate causation, comparative fault, and damages.” PA. 26-27.

Finally, the court examined and rejected Petitioners’

claim that the Engle findings were without evidentiary foundation in the record. The court concluded

that Douglas’s holding was well-supported. PA. 21

(“After reviewing the Engle trial record, we are

satisfied that the Florida Supreme Court determined

that the Engle jury found that common elements of

negligence and strict liability against Philip Morris

and R.J. Reynolds.”); see also Walker, 734 F.3d at 1289

(“If due process requires a finding that an issue was

actually decided, then the Supreme Court of Florida

made the necessary finding when it explained that the

approved findings from Phase I ‘go to the defendants

underlying conduct which is common to all class

members and will not change from case to case’ and

that ‘the approved Phase I findings are specific

enough’ to establish certain elements of the plaintiffs’

claims.” (quoting Douglas, 110 So. 3d at 428)).

The en banc court then rejected the panel’s preemption holding: “We conclude that the federal tobacco

laws do not preempt state tort claims based on the

dangerousness of all the cigarettes manufactured by

the tobacco companies.” PA. 30. The court reviewed

the text of each statute addressing tobacco and found

that “[t]he only significant requirement imposed on

cigarette manufacturers by the six federal laws in

question is the warning label requirement for cigarette

packages and advertising.” PA. 32-33. The court found

“[n]othing” that “reflects a federal objective to permit

the sale or manufacture of cigarettes.” PA. 34; see also

PA. 35 (“Federal law is silent both by its terms and by

its operation.”). The court rejected Petitioners’ argument as “contrary to settled law that inaction by

Congress cannot serve as the justification for finding

federal preemption of state law.” PA. 37. Finally, the

court dismissed Petitioners’ reliance on FDA v. Brown

& Williamson, explaining that “[a]lthough federal

agencies have only the authority granted to them by

Congress, states are sovereign” and “Brown and

Williamson does not address state sovereignty, and it

does not consider the preemptive reach of federal

legislation on tobacco.” PA. 39.

REASONS TO DENY THE WRIT

I. THE NINETEENTH TIME IS NOT A

CHARM.

This Petition does not even pretend to raise any

issue not previously raised in eighteen prior petitions.

Time after time, the tobacco Petitioners argue that

a year-long trial resulting in specific findings of

unlawful conduct is somehow an affront to due process. In words of an early rock ’n’ roll song, this issue

has been decided “over and over and over again.” But

unlike in some tales of forlorn love, there are consequences to invoking the certiorari jurisdiction of this

Court. While the denial of certiorari may not have

jurisprudential stare decisis effects, it does have

preclusive results for the litigation sub judice: “for the

case in which certiorari is denied, its minimum meaning is that this Court allows the judgment below to

stand with whatever consequences it may have upon

the litigants involved under the doctrine of res

judicata as applied either by state or federal courts.”

Brown v. Allen, 344 U.S. 443, 543 (1953) (Jackson, J.,

concurring).

Neither the preceding eighteen petitions nor this

Petition present any claim that has not been fully and

finally determined by the Florida courts, with full

appellate review ending in the denial of certiorari.

This petition, like the eighteen that preceded it, seeks

only to reopen the factual issues resolved in Engle, 945

So. 2d 1246.

A. The Law of the Case Precludes

Relitigation of the Same Collateral

Attack on State Court Judgments.

Petitioners’ breathless claims of a due process

violation were rejected by the Florida Supreme Court

in Douglas, 110 So. 3d at 433. Douglas held in clear,

unmistakable terms that what are known as “the

Engle progeny cases” benefit from the final classaction judgment on the conduct elements of various

causes of action: “The Engle judgment was a final

judgment on the merits because it resolved substantive elements of the class’s claims against the Engle

defendants.” Id. After Douglas, full faith and credit

principles required federal courts sitting in diversity

to follow the instructions given by the Florida Supreme

Court for similar state-court cases. That is what the

Eleventh Circuit did in Walker, which ruled that the

scope of the preclusive effect was a question of fact that

the state supreme court had conclusively resolved:

“R.J. Reynolds next argues that it is impossible to tell

whether the jury determined that it acted wrongfully

in connection with some or all of its brands of cigarettes because the plaintiffs presented both general

and brand-specific theories of liability, but the decision

of the Supreme Court of Florida forecloses that argument.” 734 F.3d at 1289. This Court denied certiorari

in both Douglas and Walker.

In the present case, the en banc Eleventh Circuit,

simply “reaffirm[ed] our holding in Walker.” PA. 3. For

the Petitioners, the question of the preclusive effect

of the factual determinations in Engle is unaffected

by the serial presentation to this Court. But those

denials, particularly in Douglas, make the collateral

attack on final state-court rulings through the present

Petition procedurally improper.

A denial of certiorari has consequences: “for the case

in which certiorari is denied, its minimum meaning is

that this Court allows the judgment below to stand

with whatever consequences it may have upon the

litigants involved under the doctrine of res judicata as

applied either by state or federal courts.” Brown, 344

U.S. at 543 (Jackson, J., concurring); see also Stop the

Beach Renourishment, Inc. v. Florida Dep’t of Envtl.

Prot., 560 U.S. 702, 727-28 (2010) (“If certiorari were

denied . . . the matter would be res judicata.”).

Even a quick glance at the Questions Presented in

the various Petitions shows that this is precisely the

sort of relitigation condemned by Justice Jackson. The

present Petition challenges the use of “generalized

findings” where “there is no way to tell whether a prior

jury found particular facts against a party.” That is the

spitting image of the Question Presented to this Court

in Engle: “Whether the Due Process Clause prohibits

a state court from giving preclusive effect to a jury

verdict when it is impossible to discern which of numerous alternative grounds formed the basis for the

jury’s findings of wrongful conduct.”3 And as presented

again in Douglas: “whether the Due Process Clause is

violated by the Florida Supreme Court’s new rule of

preclusion, which permits Engle class members to

establish petitioners’ liability without being required

to prove essential elements of their claims or establishing that those elements were actually decided in

their favor in a prior proceeding.”4 And again in

Walker: challenging the use of “generic” findings of

RA. 1a.

RA. 8a.

fact “to excuse thousands of plaintiffs … from proving

essential elements of their claims.”5 This recurring

Question has received a consistent answer: “cert.

denied.”

This Court has twice rejected Petitioners’ attempt to

overrule Walker, first in Douglas,6 and then in Walker

itself. Since then, there have been no newly discovered

facts and no intervening changes in Florida law—

nothing that mandates a different result. See Miroyan

v. United States, 439 U.S. 1338, 1338-39 (1978)

(Rehnquist, Circuit Justice) (repeat petitions for

certiorari should be denied, “unless applicants can

demonstrate a conflict among the Courts of Appeals of

which this Court was unaware at the time of the

previous denials of certiorari, or which has developed

since then”). A change in caption does not justify a

change in outcome.

Because Petitioners have already challenged the

Eleventh Circuit’s full faith and credit determination,

further review is barred not only by res judicata but

also by the law of the case. See Arizona v. California,

460 U.S. 605, 618 (1983) (holding that a “decision

should continue to govern the same issues in subsequent stages in the same case”); Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 816 (1988)

(finding that “[t]his rule of practice promotes the

RA. 18a.

See Reply Br. for Pet’r R.J. Reynolds, Philip Morris USA Inc.

v. Douglas, No. 13-191, 2013 WL 4875108, at *6 (Sept. 13, 2013),

(“In light of the Eleventh Circuit’s Walker decision, the due

process issue is now fully ripe for this Court’s review.”) (heading

altered); id. at *9, 12 (arguing that it was “imperative for this

Court to intervene” as “[t]he Eleventh Circuit’s misguided analysis makes crystal clear that only this Court can prevent massive

due process violations.”), cert. denied, 134 S. Ct. 332 (2013).

finality and efficiency of the judicial process by

‘protecting against the agitation of settled issues.’”)

(citation omitted).

Even if the same issue had not been resolved

previously in the same Engle matter, the Petition

would still be improper as a collateral attack on statecourt rules of decision. At bottom, Petitioners seek to

find legal error in the Eleventh Circuit granting full

faith and credit to final and dispositive rulings of the

Florida Supreme Court as to which this Court has

already denied review. But full faith and credit further

prevents Petitioners from waging a collateral attack in

federal court. See Exxon Mobil Corp. v. Saudi Basic

Indus., 544 U.S. 280, 282 (2005) (holding that “[w]hen

there is parallel state and federal litigation,” once the

“state-court adjudication is complete” the state court’s

decision governs disposition of the federal action). In

short, because the Full Faith and Credit Act required

the Eleventh Circuit to “accept the rules chosen by the

State from which the judgment is taken,” the court

was duty-bound to accord “preclusive effect to statecourt judgments” where “the courts of the State from

which the judgments emerged would do so.” Kremer,

456 U.S. at 482 (citation omitted).7

Petitioners seek to use Graham’s ruling on full faith

and credit to obtain review of Engle (and by extension,

Douglas) on due process grounds. But fundamental

Petitioners also assert that the Florida Supreme Court’s

decision in R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590

(Fla. 2017) somehow undermines the full faith and credit rulings

of Walker and Graham. But the only issue in Marotta was

Petitioners’ preemption argument, which the court rejected. See

id. at 591-92 (framing the certified question as “whether federal

law implicitly preempts state tort law claims of strict liability and

negligence by Engle progeny plaintiffs”).

principles of respect for state law mean that this

circular logic cannot be entertained. As the Eleventh

Circuit correctly held in Walker: “the Supreme Court

of Florida made the necessary finding when it explained

that the approved findings from Phase I ‘go to the

defendants[’] underlying conduct which is common to

all class members and will not change from case to

case,’” and that, as a result “‘the approved Phase I

findings are specific enough’ to establish certain

elements of the plaintiffs’ claims. Douglas, 110 So. 3d

at 428.” Walker, 734 F.3d at 1289. And again in the

Graham decision below: “The Florida Supreme Court

made clear in Douglas that the Engle jury decided

common elements of the negligence and strict liability

of the tobacco companies for all class members” and

“rejected the same argument that R.J. Reynolds and

Philip Morris make here about what the Engle jury

decided.” PA. 20.

Douglas and Graham are the state and federal

bookends of the same inquiry. Compare Douglas, 110

So. 3d at 430-31 (“[T]he United States Supreme Court

has identified the requirements of due process as

notice and opportunity to be heard and has recognized

that applying res judicata to deny a party those rights

offends due process.”) (emphasis added), with PA. 24

(Petitioners “do not contend they were denied notice or

an opportunity to be heard, the central features of due

process.”) (emphasis added), and Walker, 734 F.3d at

1280 (“Because R.J. Reynolds had a full and fair

opportunity to be heard in the Florida class action . . .

the application of res judicata under Florida law does

not cause an arbitrary deprivation of property.”)

(emphasis added). Graham and Douglas employed the

same legal reasoning, on the same facts, to reach the

same conclusion. There is no basis for a different result

in Graham than in Douglas. Nothing has changed—

neither governing law nor material facts—since this

Court denied certiorari in Douglas, as indeed it had

previously in Engle.

In effect, Petitioners seek to evade the consequences

of a denial of certiorari under 28 U.S.C. § 1257 by

collaterally attacking a final state-court judgment,

and then demanding certiorari review from the entirely

proper federal-court deference to the final state-court

judgment on matters of state law. That outcome is

barred by the jurisdictional limit of Section 1257,

which “vests authority to review a state court’s judgment solely in this Court.” Exxon, 544 U.S. at 292.

While federal courts retain the authority to adjudicate

an “independent claim,” id. at 292-93, they are without jurisdiction to exercise appellate review of the

adequacy of a final state-court ruling. The entire

argument in Graham, just like the same argument in

Walker, was an attempt to obtain federal relief from a

state judgment that was not to Petitioners’ liking. As

this Court held in Exxon, that form of review is

jurisdictionally limited to certiorari review in this

Court from the final judgment itself, not through

collateral challenge in the federal courts. That Petitioners now attempt to circumvent Exxon by seeking

certiorari to the Eleventh Circuit does not alter the

correctness of the decision below to afford finality to

the factual determinations of the Florida state courts.

Even apart from the preclusive consequences of the

law of the case, there is simply no tenable due process

argument here. A federal jury found that cigarette

smoking was responsible for the death of Faye Graham.

Even with the Engle Phase I findings, the jury found

that R.J. Reynolds and Philip Morris were only 20

percent and 10 percent at fault, respectively, placing

the overwhelming bulk of the responsibility on

Ms. Graham herself. The jury found for Petitioners on

Ms. Graham’s intentional tort claims, even though

Engle Phase I findings applied to those as well. Not

only have all the issues in this Petition been presented

to and rejected by this Court, but the underlying trial

results speak to the fact that Petitioners were well

capable of defending their interests.

B. The Factual Predicates for Liability

Were Proven at Trial in Engle.

In every single post-Engle petition to this Court,

Petitioners falsely assert that “there is no way to know

whether any jury has ever found that [Petitioners]

committed tortious acts that harmed plaintiffs.” Pet.

1; see also RA. 1a-18a (examples of the same assertion

time and again). Despite being raised numerous times

in federal and state court proceedings, no court has

ever accepted the factual premise of Petitioners’

assertion. Indeed, the very premise of the preemption

ruling by the original panel below was that, by finding

negligence and strict liability in the manufacture

of all cigarettes during the relevant time period, the

Engle court had effectively banned cigarettes.

Tobacco’s claim of factual uncertainty in the record,

which also served as the foundation of all prior petitions,8 is in turn premised on the fact that there

were findings that some but not all cigarettes were

manufactured with glass fibers or breathing air holes

or high ammonia levels or were putatively “light”

cigarettes, and that this conduct took various forms

over decades. Pet. 6-7. On this theory, there was no

proof of any defect in the cigarettes smoked by Faye

Graham as a general matter, and presumably, no

See. e.g., RA. 8a.

evidence that the particular cigarette that caused her

cancer was defective. The heart of the due process

claim is that “these generic questions” prove nothing

when applied to a specific plaintiff. Pet. 7.

These claims, repeated as a mantra across all the

many certiorari petitions, ask the Court to disregard

the actual facts of record. Beyond this Court’s normal

reluctance to disturb findings of fact by two courts

below,9 the critical factual findings have been twice

affirmed on appeal by the Florida Supreme Court,

applied by numerous other Florida appellate courts

and federal courts, and denied certiorari review

repeatedly.

Contrary to the assertion that defendants did not

have a “chance to contest facts that no prior factfinder

ascertainably found,” the findings are precisely to the

contrary. As summarized by the Court below,

The smokers presented a substantial body of

evidence that all of the cigarettes manufactured by the named defendants contained

carcinogens that cause disease, including

cancer and heart disease, and that nicotine

addicts smokers. Douglas, 110 So. 3d at 423.

They presented evidence that the tobacco

companies “failed to address the health effects

and addictive nature of cigarettes, manipulated nicotine levels to make cigarettes more

See, e.g., Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336

U.S. 271, 275 (1949) (“A court of law, such as this Court is, rather

than a court for correction of errors in fact finding, cannot

undertake to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional showing

of error.”).

addictive, and concealed information about

the dangers of smoking.” Id.

PA. 5.

The jury was asked a series of specific questions

about the conduct of each tobacco company. PA. 9.

Tobacco now accepts that the first question, whether

cigarettes cause cancer, was specific enough to yield

binding findings of fact. Pet. 7 n.1.10 Yet, somehow, no

such conclusion could be drawn from the second question, which asked whether “cigarettes that contain

nicotine [are] addictive or dependence producing.”

PA. 9. Each of the ensuing questions about negligence

and strict liability similarly addressed the conduct of

the tobacco companies in the sale of all cigarettes in

the relevant period. There is no difference in the level

of specificity between whether cigarettes cause certain

cancers and whether nicotine is addictive. That the

jury made additional findings about air holes, filters,

and adulteration with glass fibers does not in any way

diminish the application of the preclusive findings as

to all cigarettes.

As the opinion below chronicled in detail, the jury

made specific findings that cigarettes cause certain

cancers, that “cigarettes that contain nicotine [are]

addictive,” that each of the tobacco companies placed

This itself is a new concession. Petitioners previously

challenged any findings from the Engle I trial. See Brown v. R.J.

Reynolds Tobacco Co., 611 F.3d 1324, 1334-35 (11th Cir. 2010).

Although Petitioners maintain that it is impossible to discern the

meaning of the Engle finding that nicotine is addictive, their own

websites are to the contrary. See R.J. Reynolds, www.rjrt.com/

transforming-tobacco/guiding-principles-and-beliefs/ (“Nicotine

in tobacco products is addictive”); Altria, www.altria.com/ourcompanies/philipmorrisusa/smoking-and-health-issues/Pages/def

ault.aspx (“Cigarettes are addictive”).

“cigarettes on the market that were defective and

unreasonably dangerous,” and that each of the tobacco

defendants failed to exercise reasonable care. PA. 9.

Accordingly the court ruled that “the evidence

supported a finding that all of the tobacco companies’

cigarettes were defective even if some of the cigarettes

had brand-specific dangers.” PA. 10 (emphasis in

original). The evidence further supported “a finding

that the tobacco companies were negligent in

producing and selling all of their cigarettes. PA. 11

(emphasis in original). Based on these findings, the

jury awarded compensatory damages to the named

plaintiffs in the original action, a judgment adverse to

tobacco that was upheld on all appeals for two of them,

with this Court denying certiorari. See Engle, 945 So.

2d at 1255-56; Engle, 552 U.S. 941.

C. States May Craft Their Own Preclusion

Rules Within Broad Constitutional

Limits.

Petitioners wish to draw this Court into an esoteric

debate on the nomenclature of preclusion doctrines, as

if the terminology used by the Florida Supreme Court

were a matter of constitutional concern. This Court

has long held otherwise: “State courts are generally

free to develop their own rules for protecting against

the relitigation of common issues or the piecemeal

resolution of disputes.” Richards v. Jefferson County,

517 U.S. 793, 797 (1996); see also, e.g., Postal Tel.

Cable Co. v. Newport, 247 U.S. 464, 475 (1918) (“Res

judicata, like other kinds of estoppel, ordinarily is a

matter of state law.”); Hansberry v. Lee, 311 U.S. 32,

42 (1940) (“[T]he Fourteenth Amendment does not

compel state courts or legislatures to adopt any

particular rule for establishing the conclusiveness of

judgments”); Taylor v. Sturgell, 553 U.S. 880, 891 n.4

(2008) (federal courts reviewing state law must

“incorporate[] the rules of preclusion applied by the

State in which the rendering court sits”). As aptly

summed up below, “what the Florida Supreme Court

calls the relevant doctrine . . . is no concern of ours.”

PA. 24 (quoting Walker, 734 F.3d at 1289).

Federal courts are required to honor state preclusion rules insofar as they comport with the “minimum

procedural requirements” of the Due Process Clause.

Kremer, 456 U.S. at 481-82 (federal courts may not

“employ their own rules of res judicata in determining

the effect of state judgments,” because principles of

full faith and credit “go[] beyond the common law and

command[] a federal court to accept the rules chosen

by the State from which the judgment is taken.”). The

States are afforded wide latitude in this context: due

process requires only that they avoid “extreme

applications” that are “inconsistent with a federal

right that is ‘fundamental in character.’” Jefferson

County, 517 U.S. at 797 (citing Postal Tel., 247 U.S. at

475); see also Parklane Hosiery Co. v. Shore, 439 U.S.

322, 328 (1979) (stating that the “most significant

safeguard” of due process is “whether the party

against whom [preclusion] is asserted had a full and

fair opportunity to litigate”) (citation omitted).

Where a party has been furnished notice and a fair

and full opportunity to be heard, the “minimum

procedural requirements” of due process have been

satisfied, Kremer, 456 U.S. at 481-82, and even unorthodox preclusion rules pass constitutional muster, see

Parklane Hosiery, 439 U.S. at 328 (approving nontraditional application of preclusion rules against a

party that was provided an opportunity to be heard);

Blonder-Tongue Labs., Inc. v. University of Ill. Found.,

402 U.S. 313, 329-30 (1971) (allowing non-traditional

application of preclusion rules when the party was

afforded an “opportunity for full and fair trial.”).

The Petition does not even cite Kremer or Parklane

or Blonder-Tongue, the controlling cases on the due

process boundaries of preclusion, or in any way

distinguish these from the decision below.11 Instead,

Petitioners’ errant argument turns on a long-forgotten

scrap of dicta from an inapposite decision, Fayerweather,

195 U.S. 276. In Fayerweather, this Court concluded

that a will contest fully litigated in state court barred

a later attempt to reopen the contest in federal court.

Id. at 306. The Court had no occasion to decide

what sorts of state preclusion rules might violate

due process. This Court has never cited Fayerweather

for the proposition attributed to it by Petitioners.

Fayerweather plays no role in modern preclusion law

or due process law, and rightly goes unmentioned

in Taylor, 553 U.S. 880, this Court’s most recent

comprehensive account of preclusion law. And, in

reality, the Court has confined the due process inquiry

in the application of state preclusion law to the issues

of notice and the opportunity to be heard:

[W]hen the judgment of a state court, ascribing to the judgment of another court the

binding force and effect of res judicata, is

challenged for want of due process it becomes

the duty of this Court to examine the course

of procedure in both litigations to ascertain

whether the litigant whose rights have thus

been adjudicated has been afforded such

notice and opportunity to be heard as are

The Chamber of Commerce amicus brief, despite an erudite

exposition of Roman law, also ignores the Supreme Court decisions

on point. Chamber Br. 8-15.

requisite to the due process which the

Constitution prescribes.

Hansberry, 311 U.S. at 40 (emphasis added).

This is exactly what the court below found had been

afforded to Petitioners:

The Florida courts provided them notice that

the jury findings would establish the ‘conduct

elements of the class’s claims,’ Douglas, 110

So.3d at 429. And the year-long trial provided

them ‘a full and fair opportunity to litigate

the issues of common liability in Phase I.’

Walker, 734 F.3d at 1288. Both tobacco companies seized that opportunity, presenting

‘testimony that cigarettes were not addictive

and were not proven to cause disease and

that they had designed the safest cigarette

possible.’ Douglas, 110 So. 3d at 423. And

they continue to contest liability in individual

actions by class members, in which new juries

determine issues of individual causation,

apportionment of fault, and damages. Id. at

430; Engle III, 945 So. 2d at 1254.

PA. 25. Further,

[N]o tobacco company can be held liable to

any smoker without proof at trial that the

smoker belongs to the Engle class, that she

smoked cigarettes manufactured by the company during the relevant class period, and

that smoking was the proximate cause of

her injury. Every tobacco company must also

be afforded the opportunity to contest the

smokers’ pleadings and evidence and to plead

and prove the smokers’ comparative fault.

Indeed, in this appeal, after the district court

instructed it, the jury reduced Graham’s

damages award for his deceased spouse’s comparative fault. And in other Engle progeny

litigation, tobacco companies have won defense

verdicts.

PA. 27. Consequently, “applying Florida law in this

trial did not violate the tobacco companies’ rights to

due process of law.” PA. 28.

D. The Facts Underlying the Engle

Findings Have Been Independently

Established

Other

Final

Proceedings.

Nor is there anything exceptional about the approved

Engle findings themselves. Take, for instance, the first

finding that cigarette smoking causes several diseases, including lung cancer. Engle, 945 So. 2d at 1277.

This finding of fact was also made in another case

against Petitioners—the United States government’s

civil RICO action, in which the Court similarly denied

certiorari review. United States v. Philip Morris USA,

Inc., 449 F. Supp. 2d 1, 147 (D.D.C. 2006), aff’d in

pertinent part, 566 F.3d 1095 (D.C. Cir. 2009), cert.

denied, 130 S. Ct. 3501-02 (2010) (“Cigarette smoking

causes lung cancer.”).

The second Engle finding is also non-controversial:

nicotine is addictive. 945 So. 2d at 1277. This fact, too,

was found in the government’s civil RICO action:

Since the 1950s, Defendants have researched

and recognized, decades before the scientific

community did, that nicotine is an addictive

drug, that cigarette manufacturers are in the

drug business, and that cigarettes are drug

delivery devices. The physiological impact of

nicotine explains in large part why people use

tobacco products and find it so difficult to stop

using them.

449 F. Supp. 2d at 208-09.

Petitioners claim it is unconstitutional to lend

preclusive effect to two other Engle findings on the

cigarette companies’ long-running conspiracy to fraudulently conceal the health hazards of smoking. 945 So.

2d at 1277. But, again, the government’s RICO action

yielded parallel conclusions that Petitioners and their

co-conspirators:

intentionally maintained and coordinated

their position on addiction and nicotine as an

important part of their overall efforts to

influence public opinion and persuade people

that smoking was not dangerous; in this way,

the cigarette company Defendants could keep

more smokers smoking, recruit more new

smokers, and maintain or increase their earnings. Additionally, Defendants have sought to

discredit evidence of addiction in order to

preserve their “smoking is a free choice”

argument in smoking and health litigation.

449 F. Supp. 2d at 209.

There is nothing extraordinary or offensive about

the Florida courts according preclusive effect to a

set of facts that have been demonstrated here as

elsewhere, and that this Court has uniformly declined

to review.

II. PETITIONERS DO NOT

ARGUE PREEMPTION.

SERIOUSLY

No judge of the Eleventh Circuit voted to rehear

Walker en banc. The only reason for en banc review in

Graham was to reverse Judge Tjoflat’s extraordinary

panel holding that that state common law exists only

at the sufferance of Congress. Having forced the en

banc hearing they were denied in Walker, Petitioners

did not lift a finger to defend their panel victory.

At oral argument before the en banc court, with

Judge Tjoflat presiding, Petitioner never mentioned

preemption. Counsel for Respondent challenged Petitioners’ counsel over whether the argument was being

abandoned, and on rebuttal, Petitioners chose once

again to say not a word in defense of Judge Tjoflat’s

panel opinion.

In similar fashion, in the Petition here, preemption

has been reduced to an afterthought in two pages of

perfunctory presentation. Even if the issue is not

deemed waived for having been abandoned at oral

argument below, the Court should not grant certiorari

on such a half-hearted assertion of the issue.

The en banc Eleventh Circuit needed to repair the

doctrinal damage of an indefensible decision. The

panel had applied a dormant preemption theory

grounded on the fact that “Congress has regulated

cigarettes for many years. But it has never banned

them.” PA. 344. Yet it is hornbook law that “mere

congressional silence on a particular issue” cannot “be

read as pre-empting state law.” Wyeth, 555 U.S. at

602-03 (Thomas, J., concurring) (citation omitted); see

also PA. 37 (“[T]his argument is contrary to settled law

that inaction by Congress cannot serve as justification

for finding federal preemption of state law.”). A

decision not to regulate at the federal level “is fully

consistent with an intent to preserve state regulatory

authority” and does “not convey an ‘authoritative’

message of a federal policy” that can have any preemptive effect. Spriestma v. Mercury Marine, 537 U.S. 51,

65-67 (2002).

Consequently, a “party asserting conflict preemptions faces a high bar.” PA. 29. Preemption begins and

ends with the text of the relevant statute. Unlike the

silence of the Petition on what the statutes actually

say, the Eleventh Circuit meticulously analyzed “the

six tobacco-specific laws that are relevant to this

appeal.” PA. 30-34. Three of the statutes have no

bearing on the matter, and three address the label of

a cigarette. PA. 33. The court below properly concluded that “[n]othing in these six statutes reflects a

federal objective to permit the sale or manufacture of

cigarettes.” PA. 34.

This is hardly novel. This Court has previously

rejected claims of preemption in tobacco cases based

on the limited preemption clauses covering disclosures

and advertising only, as well as savings clauses specifically preserving traditional common law remedies.

See Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992)

(upholding state common law claims against a tobacco

company); Altria Grp., Inc. v. Good, 555 U.S. 70 (2008)

(upholding even state law claims relating to advertising so long as they were based on generally-applicable

duties, not advertising restrictions specifically based

on smoking or health). Per the court below, “[t]he only

significant requirement imposed on cigarette manufacturers by the six federal laws in question is the

warning label requirement for cigarette packages and

advertising.” PA. 32-33.12

The WLF Brief (at 12) cites Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001), but that case reaffirms the limited reach of

federal preemption here: “The FCLAA also does not foreclose all

state regulation of conduct as it relates to the sale or use of

cigarettes. The FCLAA’s pre-emption provision governs state

regulations of ‘advertising or promotion.’” Id. at 552.

This Court has long affirmed state authority to

restrict or even ban tobacco in the absence of express

congressional action to the contrary. Over a century

ago, the Court upheld a Tennessee prohibition on the

sale of cigarettes “as not infringing the power of

Congress under the Commerce Clause,” and went on

to describe “the cigarette ban as the type of legislation

that states may enact ‘for the reservation of the public

health or safety’ under their police powers. Austin v.

Tennessee, 179 U.S. 343, 349 (1900).” PA. 39.

Rather than trying to root the preemption argument

in what the tobacco statutes actually say, Petitioners

point, as did the overturned panel decision, to this

Court’s decision in Brown & Williamson, 529 U.S. 120.

There, the Court held that the FDA lacked authority

to regulate cigarettes, in part because such authority

would have required the FDA to ban them. But

“[a]lthough federal agencies have only the authority

granted to them by Congress, states are sovereign.”

PA. 39.

If anything, Brown & Williamson weighs against a

finding of preemption because it made clear that

federal law does not occupy the field of tobacco regulation. It is implausible (and would be unprecedented)

that Congress intended to create a regulation-free

zone applicable only to tobacco companies. Instead,

Brown & Williamson suggests that the obvious answer

is the correct one: states may regulate in this space

absent a specific Congressional statement to the

contrary. See Wyeth, 555 U.S. at 584 (Thomas, J.,

concurring) (“[T]he States possess sovereignty concurrent with that of the Federal Government, subject

only to the limitations imposed by the Supremacy

Clause.”); O’Melveny & Myers v. FDIC, 512 U.S. 79, 85

(1994) (even when a “federal statutory regulation . . .

is comprehensive and detailed[,] matters left unaddressed

in such a scheme are presumably left subject to the

disposition provided by state law”).

As the court below properly held, the constitutional

bedrock of a federal system based on dual sovereignty

is that “[s]tate governments retain their historic police

powers to protect public health. See U.S. Const.

Amend. X.” PA. 39. The en banc decision cleaned up

the panel-level mess by applying the established

jurisprudence of this Court, leaving no residual basis

for review.

III. THERE IS NO CONFLICT OF LAW OR

SUBSTANTIAL QUESTION OF LAW TO

RESOLVE.

A circuit split would be impossible in a limited pool

of pending cases arising from a single Florida

proceeding. Nor is there conflict within the reviewing

courts: for all the appeals through the state and

federal system, no court has accepted the fanciful due

process and preemption claims. The Engle progeny

cases are a finite number of tobacco personal injury

cases mostly in the Florida state courts; they involve

only Florida law and raise no broader issues even in

Florida. Following Walker, the vast majority of Engle

cases in federal court have resolved, leaving only a

handful of verdicts on appeal.

As the Florida Supreme Court has found, the

procedural history of this case is “unlikely to be

repeated.” Engle, 945 So. 2d at 1270 n.12. Petitioners

(at 34) acknowledge that Engle is “sui generis,” but

speculate that other “courts … are inventing bespoke

procedural devices.” What other courts are doing is

of no moment in assessing the opinion below. The

Eleventh Circuit is addressing the tail end of the few

remaining appeals. The fact-bound resolution of a

complex Florida case has no determinate future implications and that alone is reason the Petition should be

denied. See Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70, 79 (1955) (recognizing the importance of

limiting grants of certiorari to cases “of importance to

the public, as distinguished from that of the parties”)

(citation omitted). Just as the appropriate forum for

challenges to Engle and Douglas was petitions for

certiorari from those decisions, the validity of new and

unimagined “procedural devices” can be measured in

review of decisions actually adopting those devices.

The dissent from the en banc decision below only

reinforces that the issues in the Petition are, in reality,

disputes about long-forgotten decisions of the Florida

intermediate appellate courts, all regarding issues

fully and finally resolved by the highest court of the

State, and denied review in this Court.

In the end, the Petition is nothing more than a

complaint that case-specific facts were found against

Petitioners, a wholly inadequate basis for a grant

of certiorari. The court below found, as it did in

Walker, that the facts defeat any constitutional claim:

“After reviewing the Engle trial record, we are

satisfied that the Florida Supreme Court determined

that the Engle jury found that common elements of

negligence and strict liability against Philip Morris

and R.J. Reynolds.” PA. 21; see also Walker, 734 F.3d

at 1289 (“‘the approved Phase I findings are specific

enough’ to establish certain elements of the plaintiffs’

claims.” (quoting Douglas, 110 So. 3d at 438)).

Accordingly, the Petition fails to identify any issue

meriting this Court’s review.

CONCLUSION

For the above reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

ELIZABETH J. CABRASER

ROBERT J. NELSON

SARAH R. LONDON

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

275 Battery St., 29th Floor

San Francisco, CA 94111

SAMUEL ISSACHAROFF

Counsel of Record

40 Washington Square

South, 411J

New York, NY 10012

(212) 998-6580

si13@nyu.edu

KENNETH S. BYRD

ANDREW R. KAUFMAN

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

150 Fourth Avenue North

Suite 1650

Nashville, TN 37219

JASON L. LICHTMAN

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

250 Hudson Street

8th Floor

New York, NY 10013

Counsel for Respondent

November 20, 2017

APPENDIX

QUESTIONS PRESENTED IN DENIALS

OF PETITIONS FOR CERTIORARI

APPENDIX TABLE OF CONTENTS

Page

Engle v. Liggett Grp., Inc.,

945 So. 2d 1246 (Fla. 2006), cert. denied,

R.J. Reynolds Tobacco Co. v. Engle, 552

U.S. 941 (2007) ..........................................

Liggett Grp. LLC v. Campbell,

60 So. 3d 1078 (Fla. Dist. Ct. App. 2011),

cert. denied, Philip Morris USA Inc. v.

Campbell, 566 U.S. 905 (2012) .................

Liggett Grp. LLC v. Campbell,

60 So. 3d 1078 (Fla. Dist. Ct. App. 2011),

cert. denied, R.J. Reynolds Tobacco Co.

v. Campbell, 566 U.S. 905 (2012) .............

R.J. Reynolds Tobacco Co. v. Martin,

53 So. 3d 1060 (Fla. Dist. Ct. App. 2010),

cert. denied, R.J. Reynolds Tobacco Co.

v. Martin, 566 U.S. 905 (2012) .................

R.J. Reynolds Tobacco Co. v. Hall,

70 So. 3d 642 (Fla. Dist. Ct. App. 2011),

cert. denied, R.J. Reynolds Tobacco Co.

v. Hall, 566 U.S. 905 (2012) .....................

R.J. Reynolds Tobacco Co. v. Gray,

63 So. 3d 902 (Fla. Dist. Ct. App. 2011),

cert. denied, R.J. Reynolds Tobacco Co.

v. Gray, 566 U.S. 905 (2012) .....................

R.J. Reynolds Tobacco Co. v. Clay,

84 So. 3d 1069 (Fla. Dist. Ct. App. 2012),

cert. denied, R.J. Reynolds Tobacco Co.

v. Clay, 568 U.S. 1027 (2012) ...................

APPENDIX TABLE OF CONTENTS—Continued

Page

Philip Morris USA Inc. v. Douglas,

110 So. 3d 419 (Fla. 2013), cert. denied,

Philip Morris USA Inc. v. Douglas, 134

S. Ct. 332 (2013) ........................................

Philip Morris USA, Inc. v. Barbanell,

100 So. 3d 152 (Fla. Dist. Ct. App. 2012),

cert. denied, Philip Morris USA, Inc. v.

Barbanell, 134 S. Ct. 2726 (2014) ............

R.J. Reynolds Tobacco Co. v. Brown,

70 So. 3d 707 (Fla. Dist. Ct. App. 2011),

cert. denied, R.J. Reynolds Tobacco Co.

v. Brown, 134 S. Ct. 2726 (2014) ..............

10a

R.J. Reynolds Tobacco Co. v. Kirkland,

136 So. 3d 604 (Fla. Dist. Ct. App. 2013),

cert. denied, R.J. Reynolds Tobacco Co.

v. Kirkland, 134 S. Ct. 2726 (2014) ..........

11a

R.J. Reynolds Tobacco Co. v. Mack,

134 So. 3d 956 (Fla. Dist. Ct. App. 2014),

cert. denied, R.J. Reynolds Tobacco Co.

v. Mack, 134 S. Ct. 2726 (2014) ................

12a

Lorillard Tobacco Co. v. Mrozek,

106 So. 3d 479 (Fla. Dist. Ct. App. 2012),

cert. denied, Lorillard Tobacco Co. v.

Mrozek, 134 S. Ct. 2726 (2014) .................

13a

R.J. Reynolds Tobacco Co. v. Koballa,

99 So. 3d 630 (Fla. Dist. Ct. App. 2012),

cert. denied, R.J. Reynolds Tobacco Co.

v. Koballa, 134 S. Ct. 2727 (2014) ............

14a

APPENDIX TABLE OF CONTENTS—Continued

Page

R.J. Reynolds Tobacco Co. v. Smith,

131 So. 3d 18 (Fla. Dist. Ct. App. 2013),

cert. denied, R.J. Reynolds Tobacco Co.

v. Smith, 134 S. Ct. 2727 (2014) ...............

15a

R.J. Reynolds Tobacco Co. v. Sury,

118 So. 3d 849 (Fla. Dist. Ct. App. 2013),

cert. denied, R.J. Reynolds Tobacco Co.

v. Sury, 134 S. Ct. 2727 (2014) .................

16a

R.J. Reynolds Tobacco Co. v. Townsend,

118 So. 3d 844 (Fla. Dist. Ct. App. 2013),

cert. denied, R.J. Reynolds Tobacco Co.

v. Townsend, 134 S. Ct. 2727 (2014) ........

17a

Walker v. R.J. Reynolds Tobacco Co.,

734 F.3d 1278 (11th Cir. 2013), cert.

denied, R.J. Reynolds Tobacco Co. v.

Walker, 134 S. Ct. 2727 (2014) .................

18a

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

cert. denied, R.J. Reynolds Tobacco Co. v. Engle, 552

U.S. 941 (2007).

1. Whether the Due Process Clause prohibits a state

court from giving preclusive effect to a jury verdict

when it is impossible to discern which of numerous

alternative grounds formed the basis for the jury’s

findings of wrongful conduct.

2. Whether, merely by invoking characterizations such

as “fraud” or “negligence,” a plaintiff may evade federal preemption under this Court’s ruling in Cipollone

v. Liggett Group, Inc., 505 U.S. 504 (1992), which holds

that the Federal Cigarette Labeling and Advertising

Act preempts statelaw liability based, inter alia, on

allegations that cigarette manufacturers failed to

warn about the dangers of smoking or marketed

cigarettes in ways that “neutralized” the federally

mandated warnings.

Liggett Grp. LLC v. Campbell, 60 So. 3d 1078 (Fla.

Dist. Ct. App. 2011), cert. denied, Philip Morris USA

Inc. v. Campbell, 566 U.S. 905 (2012).

Whether the Due Process Clause prohibits the use of

issue preclusion to establish elements of a plaintiff’s

claims where it cannot be shown that the issues being

given preclusive effect were actually decided in a prior

proceeding.

Liggett Grp. LLC v. Campbell, 60 So. 3d 1078 (Fla.

Dist. Ct. App. 2011), cert. denied, R.J. Reynolds

Tobacco Co. v. Campbell, 566 U.S. 905 (2012).

In its traditional formulation, the doctrine of issue

preclusion prohibits a party from litigating an issue

that was actually decided against it in prior litigation.

In this case, applying R. J. Reynolds Tobacco Co. v.

Martin, 53 So. 3d 1060 (Fla. Dist. Ct. App. 2010), the

court precluded litigation of issues that the prior jury

may not have decided.

The question presented is the same one presented

in the petition for certiorari in Martin: whether this

unprecedented expansion of preclusion law violates

the Due Process Clause of the Fourteenth Amendment.

R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060

(Fla. Dist. Ct. App. 2010), cert. denied, R.J. Reynolds

Tobacco Co. v. Martin, 566 U.S. 905 (2012).

In its traditional formulation, the doctrine of issue

preclusion prohibits a party from litigating an issue

that was actually decided against it in prior litigation.

In this case, the court below precluded litigation of

issues that were not necessarily decided in prior

litigation, based on its conclusion that a prior jury

reasonably could have decided the issues. As a result,

respondent obtained a $28.3-million judgment without

either proving essential elements of her claims or

demonstrating that a prior jury had actually decided

those elements in her favor.

The question presented is whether this dramatic and

unprecedented departure from traditional preclusion

law—to impose liability based on earlier litigation

without any assurance that the earlier litigation

actually decided the precluded issue—violates the Due

Process Clause of the Fourteenth Amendment

R.J. Reynolds Tobacco Co. v. Hall, 70 So. 3d 642 (Fla.

Dist. Ct. App. 2011), cert. denied, R.J. Reynolds

Tobacco Co. v. Hall, 566 U.S. 905 (2012).

In its traditional formulation, the doctrine of issue

preclusion prohibits a party from litigating an issue

that was actually decided against it in prior litigation.

In this case, applying R. J. Reynolds Tobacco Co. v.

Martin, 53 So. 3d 1060 (Fla. Dist. Ct. App. 2010), the

court precluded litigation of issues that the prior jury

may not have decided.

The question presented is the same one presented in

the petition for certiorari in Martin: whether this

unprecedented expansion of preclusion law violates

the Due Process Clause of the Fourteenth Amendment

R.J. Reynolds Tobacco Co. v. Gray, 63 So. 3d 902 (Fla.

Dist. Ct. App. 2011), cert. denied, R.J. Reynolds

Tobacco Co. v. Gray, 566 U.S. 905 (2012).

In its traditional formulation, the doctrine of issue

preclusion prohibits a party from litigating an issue

that was actually decided against it in prior litigation.

In this case, applying R. J. Reynolds Tobacco Co. v.

Martin, 53 So. 3d 1060 (Fla. Dist. Ct. App. 2010), the

court precluded litigation of issues that the prior jury

may not have decided.

The question presented is the same one presented

in the petition for certiorari in Martin: whether this

unprecedented expansion of preclusion law violates

the Due Process Clause of the Fourteenth Amendment.

R.J. Reynolds Tobacco Co. v. Clay, 84 So. 3d 1069 (Fla.

Dist. Ct. App. 2012), cert. denied, R.J. Reynolds

Tobacco Co. v. Clay, 568 U.S. 1027 (2012).

The doctrine of issue preclusion prohibits a party from

relitigating an issue that was actually decided against

it in prior litigation. In this case, the courts below

precluded litigation of critical disputed issues absent

any determination that those issues had been previously decided.

The question presented is whether this dramatic

departure from traditional and heretofore universal

preclusion law violates the Due Process Clause of the

Fourteenth Amendment.

Philip Morris USA Inc. v. Douglas, 110 So. 3d 419

(Fla. 2013), cert. denied, Philip Morris USA Inc. v.

Douglas, 134 S. Ct. 332 (2013).

In Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.

2006), the Florida Supreme Court partially upheld a

massive class action brought on behalf of Florida

smokers, ruling that certain “issues”—including defect

and negligence—were suitable for class adjudication

under Florida’s analog to Fed. R. Civ. P. 23(c)(4). The

Engle jury was presented with multiple theories of

defect and negligence, many of which applied only to a

subset of class members, and the verdict form required

the jury to find against the defendants if any one of the

class’s theories was proven.

In this case—one of more than 4,500 suits filed by

alleged Engle class members—the Florida Supreme

Court did not believe it is possible to determine which

of the class’s alternative theories of defect and negligence the Engle jury actually found. Indeed, the court

conceded that the Engle findings would be “useless” if

class members were required to establish what was

actually decided in Engle. To make the findings useful

to members of the “issues class” certified in Engle, the

court devised a new doctrine of offensive claim preclusion under which the class verdict is conclusively deemed

to establish any issue that might have been decided in

Engle. The court upheld this unprecedented application of preclusion against a due process challenge.

The question presented is whether the Due Process

Clause is violated by the Florida Supreme Court’s new

rule of preclusion, which permits Engle class members

to establish petitioners’ liability without being required

to prove essential elements of their claims or establishing that those elements were actually decided in

their favor in a prior proceeding.

Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152

(Fla. Dist. Ct. App. 2012), cert. denied, Philip Morris

USA, Inc. v. Barbanell, 134 S. Ct. 2726 (2014).

This case presents the same due-process question as

the petitions for certiorari filed today in R.J. Reynolds

Tobacco Co. v. Jimmie Lee Brown, No. 13-__, and R.J.

Reynolds Tobacco Co v. Walker, No. 13-__:

Whether the Florida courts’ extreme application of

preclusion principles to thousands of pending cases

can be reconciled with the Constitution’s guarantee of

due process of law.

10a

R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707

(Fla. Dist. Ct. App. 2011), cert. denied, R.J. Reynolds

Tobacco Co. v. Brown, 134 S. Ct. 2726 (2014).

Can the generic findings from the decertified Engle

class action—findings the Florida Supreme Court

deemed “useless” for issue preclusion purposes—be

used to excuse thousands of plaintiffs in follow-on

cases from proving essential elements of their claims

without violating defendants’ due process rights?

11a

R.J. Reynolds Tobacco Co. v. Kirkland, 136 So. 3d 604

(Fla. Dist. Ct. App. 2013), cert. denied, R.J. Reynolds

Tobacco Co. v. Kirkland, 134 S. Ct. 2726 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1297 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

12a

R.J. Reynolds Tobacco Co. v. Mack, 134 So. 3d 956

(Fla. Dist. Ct. App. 2014), cert. denied, R.J. Reynolds

Tobacco Co. v. Mack, 134 S. Ct. 2726 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1278 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

13a

Lorillard Tobacco Co. v. Mrozek, 106 So. 3d 479 (Fla.

Dist. Ct. App. 2012), cert. denied, Lorillard Tobacco

Co. v. Mrozek, 134 S. Ct. 2726 (2014).

This case presents the same question as the petitions

for writs of certiorari filed today by R.J. Reynolds

Tobacco Company in Walker v. R.J. Reynolds Tobacco

Co., 734 F.3d 1278 (11th Cir. 2013), and R.J. Reynolds

Tobacco Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla.

Dist. Ct. App. 2011):

Whether the Due Process Clause permits the use of

generic findings made in the decertified Engle class

action to preclude defendants in thousands of cases

from contesting essential elements of the plaintiffs’

claims.

14a

R.J. Reynolds Tobacco Co. v. Koballa, 99 So. 3d 630

(Fla. Dist. Ct. App. 2012), cert. denied, R.J. Reynolds

Tobacco Co. v. Koballa, 134 S. Ct. 2727 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1278 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

15a

R.J. Reynolds Tobacco Co. v. Smith, 131 So. 3d 18 (Fla.

Dist. Ct. App. 2013), cert. denied, R.J. Reynolds

Tobacco Co. v. Smith, 134 S. Ct. 2727 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1278 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

16a

R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla.

Dist. Ct. App. 2013), cert. denied, R.J. Reynolds

Tobacco Co. v. Sury, 134 S. Ct. 2727 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1278 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

17a

R.J. Reynolds Tobacco Co. v. Townsend, 118 So. 3d 844

(Fla. Dist. Ct. App. 2013), cert. denied, R.J. Reynolds

Tobacco Co. v. Townsend, 134 S. Ct. 2727 (2014).

This case presents the same question as the petitions

for certiorari filed by petitioner R.J. Reynolds Tobacco

Company in Walker v. R.J. Reynolds Tobacco Co., 734

F.3d 1278 (11th Cir. 2013), and R.J. Reynolds Tobacco

Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. Dist. Ct.

App. 2011). The question presented is:

Whether the Due Process Clause permits use of

generic findings from the decertified Engle class action

to preclude defendants in thousands of cases from

contesting essential elements of the plaintiffs’ claims.

18a

Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278

(11th Cir. 2013), cert. denied, R.J. Reynolds Tobacco

Co. v. Walker, 134 S. Ct. 2727 (2014).

Do either full faith and credit principles or due process

permit generic findings from the decertified Engle

class action—findings the Florida Supreme Court

deemed “useless” for issue preclusion purposes—to be

used to excuse thousands of plaintiffs in follow-on

cases from proving essential elements of their claims?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.