Petition for Writ of Certiorari — R.J. Reynolds Tobacco Company, Petitioner v. Jan Grossman, as Personal Representative of the Estate of Laura Grossman, Deceased

No. 17-___

IN THE

Supreme Court of the United States

R. J. REYNOLDS TOBACCO COMPANY,

Petitioner,

v.

JAN GROSSMAN, as personal representative of the

Estate of Laura Grossman, deceased,

Respondent.

On Petition For A Writ Of Certiorari

To The Florida District Court Of Appeal

For The Fourth District

PETITION FOR A WRIT OF CERTIORARI

CHARLES R.A. MORSE

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-3939

MICHAEL A. CARVIN

Counsel of Record

YAAKOV ROTH

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

mcarvin@jonesday.com

Counsel for Petitioner

R. J. Reynolds Tobacco Co.

i

QUESTION PRESENTED

This case presents a question also raised in the

petition for a writ of certiorari filed September 15,

2017, in R.J. Reynolds Tobacco Co. v. Graham, No.

17-415:

When there is no way to tell whether a prior jury

found particular facts against a party, does due

process permit those facts to be conclusively

presumed against that party in subsequent

litigation?

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The plaintiff below was Jan Grossman, as personal

representative of the estate of his deceased wife,

Laura Grossman.

The defendant below was petitioner R.J. Reynolds

Tobacco Company. The complaint also named as

defendants Philip Morris USA Inc., Lorillard Tobacco

Company, Liggett Group LLC, and Vector Group

Ltd., but those entities were dismissed before trial

and were not parties to the appeal.

Petitioner R.J. Reynolds Tobacco Company is a

wholly owned subsidiary of R.J. Reynolds Tobacco

Holdings, Inc., which is a wholly owned subsidiary of

Reynolds American Inc., which in turn is an indirect,

wholly owned subsidiary of British American

Tobacco p.l.c., a publicly held corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .............................. ii

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ....... 2

STATEMENT OF THE CASE ................................... 2

A.

The History Of The Engle

Litigation ............................................... 4

1.

The failed class action in

Engle ........................................... 4

2.

The Engle-progeny

litigation ..................................... 7

B.

The Proceedings In This Case .............. 8

C.

The Eleventh Circuit’s En Banc

Decision In Graham ............................ 10

REASONS FOR GRANTING THE PETITION ...... 12

I.

The Florida Courts’ Decision To Relieve

Plaintiffs Of The Burden Of

Establishing Essential Elements Of

Their Tort Claims Violates Due Process ...... 12

II.

The Court Should Hold This Petition

Pending Resolution Of Graham .................... 15

CONCLUSION ......................................................... 16

iv

TABLE OF CONTENTS

(continued)

Page

APPENDIX A: Order of the Supreme Court of

Florida (Aug. 31, 2017) .................................. 1a

APPENDIX B: Opinion of the Fourth District

Court of Appeal of Florida (Jan. 4, 2017) ..... 3a

APPENDIX C: Respondent’s Motion to Lift

Stay .............................................................. 19a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) .......................................... 2, 10

Engle v. Liggett Group, Inc.,

945 So. 2d 1246 (Fla. 2006) (per curiam) .... passim

Fayerweather v. Ritch,

195 U.S. 276 (1904) .......................................... 3, 14

Flores v. United States,

137 S. Ct. 2211 (2017) .......................................... 15

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

857 F.3d 1169 (11th Cir. 2017) (en banc),

petition for cert. pending, No. 17-415

(filed Sept. 15, 2017) .................................... passim

Innovention Toys, LLC v. MGA Entm’t,

Inc.,

136 S. Ct. 2483 (2016) .......................................... 15

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) .............................................. 12

Lawrence v. Chater,

516 U.S. 163 (1996) (per curiam) ........................ 15

Merrill v. Merrill,

137 S. Ct. 2156 (2017) .......................................... 15

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ................................................ 2

New York v. Cathedral Acad.,

434 U.S. 125 (1977) ................................................ 2

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Philip Morris USA Inc. v. Douglas,

110 So. 3d 419 (Fla.),

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

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

135 So. 3d 289 (Fla. 2014) ................................. 1, 9

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

96 So. 3d 917 (Fla. Dist. Ct. App. 2012) ........ 1, 8, 9

Radio Station WOW v. Johnson,

326 U.S. 120 (1945) ................................................ 2

Taylor v. Sturgell,

553 U.S. 880 (2008) ................................................ 2

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

835 F. Supp. 2d 1244 (M.D. Fla. 2011).................. 7

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. XIV .............................................. 2

28 U.S.C. § 1257(a) ...................................................... 2

PETITION FOR A WRIT OF CERTIORARI

This case presents a question that is also

presented by the petition for a writ of certiorari in

R.J. Reynolds Tobacco Co. v. Graham, No. 17-415.

Petitioner R.J. Reynolds Tobacco

Company

respectfully asks this Court to hold this petition

pending resolution of the petition in Graham, and to

dispose of this case in a manner consistent with the

Court’s resolution of Graham.

OPINIONS BELOW

The decision of the Florida Fourth District Court

of Appeal is reported at 211 So. 3d 221. Pet.App.3a.

The order of the Florida Supreme Court declining

discretionary review is available at 2017 WL

3751318. Pet.App.1a. An earlier opinion of the

Fourth District Court of Appeal in the same case is

reported at 96 So. 3d 917 and the order of the Florida

Supreme Court declining discretionary review on

that occasion is reported at 135 So. 3d 289.

JURISDICTION

The Florida Fourth District Court of Appeal

affirmed the judgment in a published opinion on

January 4, 2017. Pet.App.3a. Both parties then

invoked the discretionary jurisdiction of the Florida

Supreme Court. On August 31, 2017, the Florida

Supreme Court declined review of the question

presented by Petitioner. Pet.App.1a. Respondent’s

notice invoking the Florida Supreme Court’s

jurisdiction remains pending, but addresses a

question (whether the award of compensatory

damages should be reduced to reflect comparative

fault, Pet.App.19a), that cannot affect the federal

issue presented in this petition. Even if the Florida

2

Supreme Court takes jurisdiction and increases the

award of compensatory damages, the due-process

issue discussed below “will survive and require

decision.” Cox Broad. Corp. v. Cohn, 420 U.S. 469,

480 (1975); see also NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 907 n.42 (1982) (reasoning that a

state court’s judgment was final, even though it had

“remanded for a recomputation of damages”); New

York v. Cathedral Acad., 434 U.S. 125, 128 n.4 (1977)

(deeming case final though the state court had

remanded to “determine the amount of the

Academy’s claim” under the statute at issue); Radio

Station WOW v. Johnson, 326 U.S. 120, 124–27

(1945) (concluding that a case was final where

property was ordered transferred, but the matter

had been remanded for “an accounting of profits from

such property”).

Accordingly, this Court has

jurisdiction under 28 U.S.C. § 1257(a).

Reynolds timely filed this petition.

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment of the United States

Constitution provides, in relevant part: “No State

shall … deprive any person of life, liberty, or

property, without due process of law ….” U.S. Const.

amend. XIV, § 1.

STATEMENT OF THE CASE

Under longstanding and heretofore universal

common-law principles, plaintiffs seeking to rely on

the outcome of a prior proceeding to establish

elements of their claims must demonstrate that

those elements were “actually litigated and resolved ”

in their favor in the prior case. Taylor v. Sturgell,

553 U.S. 880, 892 (2008) (emphasis added; internal

3

quotation marks omitted). This “actually decided”

requirement is such a fundamental safeguard

against the arbitrary deprivation of property that it

is mandated by due process. See Fayerweather v.

Ritch, 195 U.S. 276, 298–99, 307 (1904).

In this case and thousands of similar suits,

however, the Florida courts have jettisoned the

“actually decided” requirement. According to the

Florida Supreme Court, members of the class of

Florida smokers prospectively decertified in Engle v.

Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (per

curiam), can rely on the generalized findings

rendered

by

the

class-action

jury

before

decertification—for example, that each defendant

“‘placed cigarettes on the market that were defective

and unreasonably dangerous’”—to establish the

tortious conduct elements of their claims without

demonstrating that the Engle jury actually decided

that the defendants had engaged in tortious conduct

relevant to their individual smoking histories. Philip

Morris USA Inc. v. Douglas, 110 So. 3d 419, 424

(Fla.), cert. denied, 134 S. Ct. 332 (2013). The en

banc Eleventh Circuit recently rejected a due-process

challenge to this misuse of the Engle findings. See

Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169,

1186 (11th Cir. 2017) (en banc), petition for cert.

pending, No. 17-415 (filed Sept. 15, 2017).

Reynolds and Philip Morris USA Inc., its codefendant in Graham, have filed a petition for a writ

of certiorari seeking review of the Eleventh Circuit’s

decision in that case. That petition presents the

same due-process question as this petition: whether

due process prohibits plaintiffs from relying on the

preclusive effect of the generalized Engle jury

4

findings to establish elements of their individual

claims. See R.J. Reynolds Tobacco Co. v. Graham,

No. 17-415. Graham—a fractured decision in which

Judge Tjoflat authored a 200-plus-page dissent—is

an ideal vehicle for this Court to consider the issue

presented in this case and the thousands of other

Engle-progeny cases pending in state and federal

courts across Florida.

The Court should hold this petition and dispose of

it consistent with the disposition of Graham.

A. The History Of The Engle Litigation

1. The failed class action in Engle

The massive class action that gave rise to this case

began in 1994, when a group of smokers filed suit in

Florida state court against every major domestic

tobacco manufacturer. As later modified on appeal,

the plaintiff class included “[a]ll [Florida] citizens

and residents, and their survivors, who have

suffered, presently suffer or who have died from

diseases and medical conditions caused by their

addiction to cigarettes that contain nicotine.” Engle,

945 So. 2d at 1256. The class sought relief under a

variety of theories, including strict liability,

negligence, fraudulent concealment, and conspiracy

to fraudulently conceal. Id. at 1256–57 & n.4.

The Engle trial court adopted a complex multiphase trial plan. Phase I, which lasted a year, was

the phase in which the jury was charged with

making findings on purported “common issues”

relating to the defendants’ conduct and the health

effects of smoking. Id.

During the Phase I trial, the Engle class broadly

alleged that all cigarettes are defective, and that the

5

sale of all cigarettes is negligent, because cigarettes

are addictive and cause disease. But the class also

pressed narrower, more brand-specific theories of

defect and negligence. For example, the class offered

evidence that “some cigarettes were manufactured

with the breathing air holes in the filter being too

close to the lips so that they were covered by the

smoker.” Douglas, 110 So. 3d at 424 (emphasis

added). There was “also evidence at trial that some

filters … utilize[d] glass fibers that could produce

disease.” Id. (emphasis added). There was evidence

that some cigarettes used “a higher nicotine content

tobacco called Y-1.” Id. at 423. Evidence suggested

that ammonia was “sometimes ” used to increase

nicotine levels. Id. (emphasis added). Some evidence

focused on “light” cigarettes, while other evidence

addressed “low-tar” cigarettes.

The arguments made to support the class’s

fraudulent-concealment and conspiracy claims were

similarly diverse. The class identified many distinct

categories of allegedly fraudulent statements by the

defendants, some pertaining to the health risks of

smoking, others pertaining to the addictiveness of

smoking, and still others limited to certain designs

and brands of cigarettes, such as “light” cigarettes.

Class counsel acknowledged that the class’s

concealment allegations rested on “thousands upon

thousands of statements about” cigarettes. Engle

Trial Tr. at 35955 (emphasis added).

The upshot was that “[o]ver the course of the

yearlong trial,” witnesses distinguished “among

cigarette brands, filtered and nonfiltered, in terms of

their tar and nicotine levels and the way in which

they

were

designed,

tested,

manufactured,

6

advertised, and sold.” Graham, 857 F.3d at 1198

(Tjoflat, J., dissenting).

And this evidence

“spann[ed] decades of tobacco-industry history,” from

1953 until 1994. Id.

Over the defendants’ objection, the class sought

and secured a Phase I verdict form that asked the

jury to make only generalized findings on each of its

claims. On the class’s strict-liability claim, for

example, the verdict form asked whether each

defendant “placed cigarettes on the market that were

defective and unreasonably dangerous.” Engle, 945

So. 2d at 1257 n.4.

On the concealment and

conspiracy claims, the jury was asked whether the

defendants concealed information about “the health

effects” or “addictive nature of smoking cigarettes.”

Id. at 1277. The jury answered each of those

generalized questions in the class’s favor, but its

findings do not reveal which of the class’s numerous

underlying theories of liability the jury accepted,

which it did not consider at all, and which it rejected.

The Florida Supreme Court ultimately decertified

the class action. Engle, 945 So. 2d at 1245. But it

did so only prospectively. In other words, rather

than ending the ligation altogether, the court broke

up the class action but permitted class members to

pursue individual actions. Id. Of critical importance

here, Engle also made the “pragmatic” decision to

“retain[] the jury’s Phase I findings” on numerous

issues—including the jury’s defect, negligence, and

concealment findings—and to accord those findings

“res judicata effect” in the subsequent individual

actions. Id. at 1269. But it did not explain what it

meant by “res judicata effect.” See id. at 1284 (Wells,

7

J., concurring in part and dissenting in part)

(objecting to this “problematic” directive).

2. The Engle-progeny litigation

Following the Florida Supreme Court’s Engle

decision, 9,000 class members filed timely individual

actions in state and federal courts in Florida.

Waggoner v. R.J. Reynolds Tobacco Co., 835 F. Supp.

2d 1244, 1250 (M.D. Fla. 2011). These are known as

“Engle-progeny” cases. In each Engle-progeny case,

the plaintiff invokes the “res judicata effect” of the

Phase I findings to establish the tortious-conduct

elements of his individual claims.

In Douglas, the Florida Supreme Court rejected

the Engle defendants’ argument that federal due

process prohibits giving such sweeping preclusive

effect to the Engle findings. 110 So. 3d at 422. In so

doing, the Florida Supreme Court recognized that

the Engle class’s multiple theories of liability

“included brand-specific defects” that applied to only

some cigarettes and that the Engle findings would

therefore be “useless in individual actions” if

plaintiffs invoking their preclusive effect had to show

what the Engle jury had “actually decided,” as

Florida issue-preclusion law required. Id. at 423,

433. The court nevertheless held that the findings

could be given preclusive effect under principles of

claim preclusion, which “unlike issue preclusion, has

no ‘actually decided’ requirement” and applies to any

issue that the Engle jury “might ” have decided

against the defendants. Id. at 435 (emphasis added).

It was therefore “immaterial” that the “Engle jury

did not make detailed findings” sufficient to identify

the actual basis for its verdict. Id. at 432–33.

8

B. The Proceedings In This Case

From the time Laura Grossman and Respondent

Jan Grossman met at Respondent’s variety store,

where Laura went to purchase cigarettes, Laura was

a “heavy smoker.” R.J. Reynolds Tobacco Co. v.

Grossman, 96 So. 3d 917, 919 (Fla. Dist. Ct. App.

2012). She developed lung cancer and passed away

in 1995.

See id.

Respondent, as personal

representative of her estate, filed this Engle-progeny

case against Reynolds in 2007, alleging (as the Engle

class definition requires) that addiction to cigarettes

caused Laura’s lung cancer and death.

At trial, and as relevant here, Respondent claimed

relief under theories of strict liability, negligence,

fraudulent concealment, and conspiracy. He sought

to take advantage of the res judicata effect accorded

to the Engle findings, arguing that the Engle jury

verdict established defect, negligence, fraudulent

concealment, and conspiracy in all progeny cases.

He thus asked the Court to instruct the jury that, if

it found he was a member of the Engle class, it

should conclude that Reynolds was negligent (an

element of the negligence claim); that it sold

defective products (an element of the strict-liability

claim); that it concealed information about the

health effects or addictive nature of smoking (an

element of fraudulent concealment); and that it

concealed this information in agreement with other

companies and industry organizations (an element of

conspiracy). Over Reynolds’s objection, the trial

court gave these instructions. See, e.g., Trial Tr. at

3742–44 (Apr. 27, 2010).

9

The first trial ended in a mistrial. See Pet.App.5a.

A second trial ended in a verdict for Respondent on

strict liability (but no other claim).

The jury

awarded just under $2 million in compensatory

damages and apportioned 70% of fault to Laura

Grossman, 25% to Reynolds, and 5% to Respondent

himself. Grossman, 96 So. 3d at 919. Reynolds

appealed to Florida’s Fourth District Court of Appeal

and Respondent cross-appealed.

In its appeal,

Reynolds argued that the trial court violated the Due

Process Clause by giving the Engle findings

preclusive effect, notwithstanding the impossibility

of determining whether those findings establish

conduct that harmed Laura Grossman. The Fourth

District rejected that argument. See id. But the

court accepted Respondent’s argument on crossappeal that the jury should not have been allowed to

apportion any fault to him. The court allowed the

verdict on Engle class membership to stand, but

ordered a new trial on liability and damages.

Reynolds sought—and was denied—review by the

Florida Supreme Court. See R.J. Reynolds Tobacco

Co. v. Grossman, 135 So. 3d 289 (Fla. 2014).

Respondent scored a more decisive win in the third

trial—he prevailed on all his claims.

The

apportionment of fault was a mirror image of the

second trial’s: 75% to Reynolds and 25% to Laura

Grossman.

Damages were much greater:

$15

million in compensatory damages and $22.5 million

in punitive damages. The jury also awarded medical

and funeral expenses. After rejecting Reynolds’s

request that compensatory damages be reduced by

25% to reflect comparative fault, the trial judge

10

entered judgment for a little under $38 million.

Pet.App.7a.

Reynolds appealed a second time to the Fourth

District. It raised several arguments, including,

again, a due-process objection to the use of the Engle

findings.

Reynolds also argued that the

compensatory-damages awards should have been

reduced by 25% to reflect comparative fault. The

Fourth District agreed on the last point—

compensatory damages should have been reduced—

but otherwise rejected Reynolds’s arguments,

including the due-process one. See id. at 11a–17a.

Both parties invoked the jurisdiction of the Florida

Supreme Court. On August 31, 2017, the Florida

Supreme Court declined jurisdiction in Reynolds’s

case. Respondent’s request—which presents the

comparative-fault question—remains pending, but

the question presented here is certain to survive that

proceeding. Accordingly, the judgment is sufficiently

final to permit this Court’s exercise of certiorari. See

Cox Broad., 420 U.S. at 480; supra page 2.

C. The Eleventh Circuit’s En Banc Decision

In Graham

In May of this year, the en banc Eleventh Circuit

issued its opinion in Graham v. R.J. Reynolds

Tobacco Co., which held by a 7–3 vote that

permitting plaintiffs to rely on the Engle findings to

establish the conduct elements of their strict-liability

and negligence claims does not violate due process.

857 F.3d at 1186.

The Graham majority refused to accept Douglas ’s

literal holding that the Engle findings establish

anything that the Engle jury could have found.

11

Instead, the majority construed Douglas as

containing a holding about what the Engle jury

actually found—namely, that when the jury rendered

a verdict for the class on strict liability and

negligence, what it had in mind was “that all of the

companies’ cigarettes cause disease and addict

smokers.” 857 F.3d at 1176. The Graham majority

regarded itself as bound to give full faith and credit

to this version of the findings that it thought it

detected in Douglas. Id. at 1185. And this, in the

majority’s view, defeated the due-process argument

that “the jury did not actually decide common issues

of negligence and strict liability.” Id. at 1184.

Three judges wrote separately in dissent. In an

opinion that ran to more than 200 pages, Judge

Tjoflat concluded that giving preclusive effect to the

Engle findings violates due process. He emphasized

that the Engle Phase I verdict form “did not require

the jury to reveal the theory or theories on which it

premised its tortious-conduct findings” and that the

defendants “have never been afforded an opportunity

to be heard on whether the[ ] unreasonably

dangerous product defect(s) or negligent conduct”

found by the Engle jury caused harm to any specific

progeny plaintiff. Graham, 857 F.3d at 1194, 1201

(Tjoflat, J., dissenting).

Judge Julie Carnes agreed with Judge Tjoflat on

the due-process issue, reasoning that the Engle

findings “are too non-specific to warrant them being

given preclusive effect in subsequent trials.”

Graham, 857 F.3d at 1191 (Carnes, J., concurring in

part and dissenting in part). Finally, Judge Wilson

was “not content that the use of the Engle jury’s

highly generalized findings in other forums meets

12

‘the minimum procedural requirements of the Due

Process Clause,”’ and would have remanded in light

of the due-process violation Id. at 1314–15 (Wilson,

J., dissenting) (quoting Kremer v. Chem. Constr.

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

Reynolds, along with PM USA, petitioned for a

writ of certiorari in Graham.

REASONS FOR GRANTING THE PETITION

This petition raises the due-process question that

is also directly at issue in Graham: whether due

process prohibits Engle progeny plaintiffs from

relying on the generalized Phase I findings to

establish the tortious-conduct elements of their

individual claims. Although this Court has denied

several previous petitions raising a due-process

challenge to the preclusive effect of the Engle

findings, those petitions all predated the Eleventh

Circuit’s divided en banc decision in Graham. Now

that both the Florida Supreme Court and en banc

Eleventh Circuit have addressed the due-process and

preemption issues, the questions presented are fully

ripe for review in Graham.

The Court should therefore hold this petition

pending the outcome of Graham and then dispose of

this petition consistent with its ruling in that case.

I.

The Florida Courts’ Decision To Relieve

Plaintiffs Of The Burden Of Establishing

Essential Elements Of Their Tort Claims

Violates Due Process.

As explained at length in the petition for a writ of

certiorari filed in Graham, the Florida state and

federal courts are engaged in the serial deprivation

of the Engle defendants’ due-process rights. This

13

Court is the only forum that can provide relief from

the unconstitutional procedures that have now been

endorsed by both the Florida Supreme Court and the

en banc Eleventh Circuit. Almost 200 progeny cases

have been tried, and thousands more remain

pending, each seeking millions of dollars in damages.

The Florida Supreme Court’s decision in Douglas

and the en banc Eleventh Circuit’s decision in

Graham allow each Engle-progeny plaintiff to use

the Engle findings to prove that the defendants

engaged in tortious conduct that led to that

plaintiff’s injuries (or the decedent’s death) without

requiring the plaintiff to establish that the Engle

jury actually decided any such thing. And so those

decisions empower progeny plaintiffs to deprive

Engle defendants of their property without any

assurance that any factfinder has adjudicated critical

elements of their claims—indeed, despite the

possibility that the Engle jury may have resolved at

least some of those elements in favor of the

defendants.

In this case, the trial court permitted Respondent

to rely on the Engle Phase I findings to establish that

the Reynolds cigarettes his wife smoked contained a

harmful defect without requiring him to establish

that the Phase I jury had actually decided that issue

in his favor. The Engle findings do not state whether

the jury found a defect in Reynolds’s filtered

cigarettes, or its unfiltered cigarettes, or in only

some of its brands but not in others. For all we

know, Laura Grossman may have smoked a type of

Reynolds cigarette that the Engle jury found was not

defective.

14

The trial court likewise permitted Respondent to

use the Phase I findings to establish that the

advertisements and other statements by Reynolds on

which Laura Grossman supposedly relied were

fraudulent. The generalized Phase I verdict form,

however, did not require the jury to identify which

statements it found to be fraudulent from among the

“thousands upon thousands of statements” on which

the class’s concealment claim rested. Engle Tr.

35955. For example, the Engle jury may have found

that Reynolds’s only fraudulent statements

pertained to the “health effects” of smoking and not

to its “addictive nature”—as the disjunctively worded

verdict form would have permitted, Engle, 945 So. 2d

at 1277—but the jury in this case may have

premised

its

fraudulent-concealment

verdict

exclusively on Laura Grossman’s alleged reliance on

statements about addiction that the Engle jury did

not find to be fraudulent.

In these circumstances, allowing Respondent to

invoke the Engle findings to establish the conduct

elements of his claims—including that the particular

cigarettes Laura Grossman smoked were defective

and that the statements on which she allegedly

relied were fraudulent—violates due process. See,

e.g., Fayerweather, 195 U.S. at 307 (holding, as a

matter of federal due process, that where preclusion

is sought based on findings that may rest on any of

two or more alternative grounds, and it cannot be

determined which alternative was actually the basis

for the finding, “the plea of res judicata must fail”).

Now that both the Florida Supreme Court and the

en banc Eleventh Circuit have upheld the

constitutionality of these unprecedented and

15

fundamentally unfair procedures, this Court’s review

is urgently needed to prevent the replication of this

constitutional violation in each of the thousands of

pending Engle-progeny cases.

II. The Court Should Hold This

Pending Resolution Of Graham.

Petition

The Court should hold this petition pending the

resolution of the petition for a writ of certiorari in

Graham.

To ensure similar treatment of similar cases, the

Court routinely holds petitions that implicate the

same issue as other cases pending before it, and,

once the related case is decided, resolves the held

petitions in a consistent manner. See, e.g., Flores v.

United States, 137 S. Ct. 2211 (2017); Merrill v.

Merrill, 137 S. Ct. 2156 (2017); Innovention Toys,

LLC v. MGA Entm’t, Inc., 136 S. Ct. 2483 (2016); see

also Lawrence v. Chater, 516 U.S. 163, 166 (1996)

(per curiam) (noting that the Court has “GVR’d in

light of a wide range of developments, including [its]

own decisions”); id. at 181 (Scalia, J., dissenting)

(“We regularly hold cases that involve the same issue

as a case on which certiorari has been granted and

plenary review is being conducted in order that (if

appropriate) they may be ‘GVR’d’ when the case is

decided.” (emphasis omitted)).

Because this case raises the same due-process

question as Graham, the Court should follow that

course here to ensure that this case is resolved in a

consistent manner. If this Court grants certiorari in

Graham and rules that due process prohibits Engleprogeny plaintiffs from relying on the Phase I

findings to establish elements of their claims, then it

16

would be fundamentally unfair to permit the

constitutionally infirm judgment in this case to

stand. Thus, the Court should hold this petition

pending the resolution of Graham and, if this Court

grants review and vacates or reverses in Graham, it

should thereafter grant, vacate, and remand in this

case.

CONCLUSION

The Court should hold this petition pending the

disposition of Graham, and then dispose of this

petition consistent with its ruling in that case.

CHARLES R.A. MORSE

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-3939

NOVEMBER 28, 2017

MICHAEL A. CARVIN

Counsel of Record

YAAKOV ROTH

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

mcarvin@jonesday.com

Counsel for Petitioner

R. J. Reynolds Tobacco Co.