Opposition Brief — R.J. Reynolds Tobacco Co. v. Engle (No. 06-1545)

p (©) FILED

No. 06-1545 : AUG 5 2007

SUPREME COURSE EK

Sn The eg

Supreme Court of the Anited States

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R.J. REYNOLDS TOBACCO CO., et ai.,

Petitioners,

V.

HOWARD A. ENGLE, M.D., et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

¢

BRIEF IN OPPOSITION

SUSAN ROSENBLATT

Counsel of Record

STANLEY M. ROSENBLATT

STANLEY M. ROSENBLATT, P.A.

66 W. Flagler St., 12th Floor

Miami, Florida 33130

(305) 374-6131

Counsel for Respondents

—— ae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

bo

RESTATEMENT OF

QUESTIONS PRESENTED

Should the Court exercise certiorari jurisdiction to

determine the preclusionary effect of Engle findings

in putative class members’ cases that have not been

adjudicated or even filed?

Should the Court exerci.e certiorari jurisdiction to

determine federal preemption issues that cannot

change the outcome of the case where the class repre-

sentatives’ judgments are supported by specific jury

findings of pre-July 1, 1969 negligence, and where the

Court will need to examine the two-year evidentiary

record to determine issues that were not adequately

presented or preserved in the Florida Supreme Court?

TABLE OF CONTENTS

Page

RESTATEMENT OF QUESTIONS PRESENTED....... i

TABELIE OR COUNT nc cssesscssecinetcnnvsscinesccssncnscs ii

TABLE OF AUVEORIT TIS ais. nscsnes scssnvsbsensssssearseinns iv

I aoiceineennviccsnnnanincpacnon 1

STATEMENT OF THE CASE ..........sossssscosssssoveesseesvoese 4

I. BRIEF PROCEDURAL HISTORY.........0.:::-:+ 4

IJ. THE PETITION OMITTED ESSENTIAL FACTS

BEARING DIRECTLY ON THE QUESTIONS ;

F ECA icdibsnnnasienotcéngeaioamnpiasnenpcenbnnaharacesnkee 7

REASONS FOR DENYING THE PETITION................ 10

I. THE COURT SHOULD NOT ADDRESS PETI-

TIONERS' HYPOTHETICAL DUE PROCESS

” I acti ea 10

B. There Has Been No Possible Deprivaticn

Of Petitioners’ Due Process Rights ............. 12

C. Due Process Issues Have Not Been Ade-

QUMRDEY PEGUT IO isiincnisiscrracsesnsyvrisiscsnviseinins 13

1

TABLE OF CONTENTS - Continued

Page

II. CERTIORARI SHOULD BE DENIED ON

THE PREEMPTION ISSUES BECAUSE

THEY WERE NOT ADEQUATELY PRE-

SENTED IN THE STATE SUPREME COURT;

THEY REST ON CLAIMS OF IMPROPER

ADMISSION OF EVIDENCE WHICH ARE

BOTH FACTUALLY AND LEGALLY WITH-

OUT MERIT; AND THE ULTIMATE OUT-

COME OF THE CASE WILL NOT BE

AFFECTED BECAUSE THE JUDGMENTS

ARE SUPPORTED BY SPECIFIC JURY

FINDINGS OF PRE-JULY 1, 1969 NEGLI-

2, 7. i -paihahaneh omen atthe ee ew Wire PS faneR oman wn ob Teer 18

A. Petitioners Did Not Adequately Present

And Preserve Preemption Before The Flor-

SN EINE RII ods costs ocrnccsnanardamaaned 18

B. The Claims of Improper Admission Of

Evidence Do Not Present An Appropriate

Question For Review In This Court............ 22

C. Key Factual Premises Upon Which Pre-

emption Claims Are Based Are False.......... 24

D. There Is No Conflict Warranting a Reex-

armination CE CiDOllONe 5... ccs cnscesevsgeceeotocaiesss 27

CARTE A CaN caes ccacileninean senses Lda miwiacs viusscbanacm ei ceive 30

iv

TABLE OF AUTHORITIES

| Page

CASES

Adams v. Robertson, |

Ei h prvc sas sd vincssay cecnnpiovncbiodiawadneenans 3, 4, 18

Anderson v. State,

Ge Oe AOE LUM, BODOG)... ccneeseversnscsvcccnvevecenvorvevunious 20

Beck v. Washington,

ea I I iis cisacsivcnsiscenaindsurnnnnennsennnsivasmamalces 19, 29

California v. Rooney, ,

cha ics dntcananvarcosenaincniushacvoueuiaeuala 2, 11

Cipollone v. Liggett Group, Inc., .

a aici hcscici satiate pacindneecha shaban passim

Coleman v. Thompson,

501 U.S. 722 (1991)............. aldesaielbieaasimigicaieicieiah 3, 12

De Sollar v. Hanscome,

NE occ siaiuneyudcticeneognicpnanaiogeiancabacpeelanl 15

Donald v. State,

ee te BOT ii vise vnhscnssscnnecivecasesensansecsvensings 20

Duest v. Dugger, |

RE CIO vscnsiisiciseccvvisesevanenapesnentouenscecken 4, 19, 29

Dusenberry v. U.S.,

Nn a SN oi cass ovassanipocoahavancanaahdasenemasedeietene 11

E.F. Hutton v. Sussman,

504 So.2d 1372 (Fla. 3d DCA.1987) ............ccccosssvocesesees 16

Emich Motors Corp. v. General Motors Corp.,

eae MP CINE vtdiotnsisicacbnccadcansnceyicsanccncshenieaeapta neieeas 15

Exxon Co., U.S.A. v. Sofec, Inc.,

ee a a Oe PE A cith ensniisscunvnchventacsentsnoeniyauatiecbomniel 24

TABLE OF AUTHORITIES —- Continued

Page

Exxon Corp. v. Eagerton,

asta wits as cus peeabanneanainepenes 18

F-C.C. v. Pacifica Foundation,

a a nits os iginyti dakgiunsnnantoapivaspacatede 232

Farina v. State,

re EE Ee WE TR, SIGE) «0 cus icecanvceve novesnensssevensnesasesvass 20

Fayerweather v. Ritch,

I cscs secs ssdoves a ccavecanacsvs 13,15

Federal Election Com’n v.

Wisconsin Right to Life, Inc.,

a eR Ce SOE Fisch casa chee binaeeks as sdveasnsesscnstaveeredis 30

Flores v. Allstate Ins. Co.,

ee ee FI CON. OD vsviiiins éavscnnnnsisseeavenseaconsenvectaceses 13

Fuller v. Oregon,

Rete MP OED vic hrs vbncpunisanarsennivinecsanyses veneviveveinpsiverints 18

Gasoline Prods. Co. v. Champlin Refining Co.,

Ee ES aay isis. j cadcbadedinsxtanvds vvalinsvuenvedgians 10

Gasperini v. Center for Humanities, Inc.,

I ois van laubauaacecaveucvcbawekubaaaakesbind 10

Goodman vu. Lukens Steel Co.,

ANE NIN sa sas vanes cdntoanskdesvaendvdss seems ebinne de 24

Grannis v. Ordean,

ee SEE FBR cos sscvabdcninbsighid ban elit isdaxepswashaeids abineeee 12

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

Rae NN UN sooo ca csicikss das std dakiiivanndcbavida yabsuvbanepiaase 15

Hansberry v. Lee,

ee NED oe ics cs sevegcs deddeneddeeieenesenuieaonsenves 13

J.T.A. Factors, Inc. v. Philcon Services, Inc.,

ee TH Ae ht LP 1M, Oe LCA BOE) ws cevcsevsnsconssensrsnnxesion 16

TABLE OF AUTHORITIES - Continued

Page

Johnson v. De Grandy,

RI a a nisi selina Uastabanspslinalonan nin 12

Jones v. State,

I BAF OU, OD wa nneisetcnis sss giasessesscnesnesnsaioven 19

Lawrence v. Chater,

Be ne I I asc cicceeecsibanscbardopegieancsuinanatiiinn skaog a

Marrese v. AmeMcan Academy of Orthopaedic

Surgeons,

Re ae a venticasin hats civpcgcernnbeniinnaetainesieadenean 12

Matsushita Electrical Industrial Co., Ltd. v. Epstein,

Pe eater Me CRD oscidieiseicestsien dict sasccainerakisadeabnisseicinn 12

Mathews v. Eldridge,

Ne ee ON ich cs sevvinnska ciscenebncissdeyaisionieunsiiasivnathiinn bai 12

McKee v. State,

450 So.2d 563 (Fla. 3d DCA 1984)... eesseesereeeees 14

Mullane v. Central Hanover Bank & Trust Co.,

SD IEDs NO AAD) wnsepnsivacsesvensonsivaisnavesnsonsseescsenensunesecses 11

N.L.R.B. v. Hendricks County Rural Elec.

Membership Corp.,

A acs sak casacnsyacnaberesanavuonioenntoanincharas 24

Nike, Inc. v. Kasky,

ie i cis sin sinidcconicdvnsoniiannvbeaiiebiinee 1, 2, 11

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

672 So.2d 39 (Fla. 3d DCA 1996)...........ceceeesesesees 4, 7,16

Randolph v. State,

BBS FIG. e BOG1 CPIM. BOGS) visi ncncsccvvsscisecssssssccvvssecesosecons 20

Richards v. Jefferson County,

a IE ea th caies in us ae nse caideadcisenconannncotcenitinel 13

Vu

TABLE OF AUTHORITIES - Continued

Page

Russell v. Place,

OG EYE MI (EBT) vic iicccinsskccinissnieadcncignietecseamiansadaee 15

S & S Toyota Inc. v. Kirby,

649 So.2d 916 (Pia. Sti DCA 1905) ..n.oiiciccvcedsccccasssoncesaue 16

Sag Harbour Marine, Inc. v. Fickett,

484 So.2d 1250 (Fla. 1st DCA 1986) .......:....0...0s00000s 19, 29

Salcedo v. Asociacion Cubana, Inc.,

SOS SO.20 TOAST CER Sek TIA FEED a vscccaseccansnisvacanmeaveans 14

Sealfon v. U.S.,

Rae A a eae A RD dein sap nbecaninican thank esacameeaaoeee 15

South Central Bell Telephone Co. v. Alabama,

SB ES, FS Co aciascGcnn cotisendazeatiandoe eee 13

Standard Jury-Civil Cases (No. 98.1),

FET COE Cr i Firion ins ccdetessicenanca casas 13

U.S. v. Johnston,

FI Fre. ht LO) vvvviiccoscncevgassndeuck renevuateuceeb eerie: 24

U.S. v. Lovasco,

BS Re Ce NECA) ivcachcvtacssesixecnsi octave eee 11

U.S. vu. Marion,

BIFE AS A FAT Pivntectivetnnviocinninnierenneaeaee 10

U.S. v. Ogando,

BGS Fee POS (ee Ce A) eosvcsriisctddccsteGiacneee 16

U.S. v. Valenzuela-Bernal,

REE CPs. I CA) assessed see 11-

Whitman v. Castlewood Intl Corp.,

seus Se. Se GES (Ee, BO is oasis aceon 16

sve v. Escondido,

SO te ee Po ee ee 18

TABLE OF AUTHORITIES — Continued

Youngblood v. West Virginia,

assis usnsesnvannvnapsuhanosasconyedosvenennies 30

STATUTES

NN cao cocacacscnesensecosucssusvecosonsenectason 3, 19

elec issicssaicissansipncanassncavonassensvanes 12,18

ha saisvdvinsnsducéovsiounennvasesvenssoosesoe 19

ino sa becsadanasnnspiendssonscanssorveavsinivens 7

MISCELLANEOUS

i .ssspnovecansovsecsnovacoonsoetens 10...

ROBERT L. STERN ET AL., SUPREME COURT PRACTICE

sick ba psitveahsdoniosoxssesreonesvapensyevevsensenassn 28

INTRODUCTION

Petitioners, the domestic tobacco industry, arrive from the

Florida Supreme Court after successfully challenging the

class-wide punitive damages judgment and the compensatory

damages judgment of class representative Frank Amodeo.

Now petitioners ask this Court to completely erase all traces

of the thirteen-year Florida class action that considered the

conduct of petitioners and adjudicated the compensatory

damages claims of class representatives Mary Farnan and

Ralph Della Vecchia, as Personal Representative of the Estate

of Angie Della Vecchia. The petition urges this Court to

abandon deeply rooted precedent by entertaining petitioners’

future hypothetical due process claims now and by imposing

an absoluie preemption bar that would grant immunity to

tobacco companies for their misconduct.’

The questions raised in the petition are not certwor-

thy for multiple reasons. Petitioners ask the Court to

intervene in future lawsuits to prohibit trial courts from

using certain Phase I findings for the benefit of class

members, impermissibly seeking an advisory opinion.

Petitioners’ due process concerns are premature and not

ripe for review. Nike, Inc. v. Kasky, 539 U.S. 634, 658

(2003). Significantly, petitioners do not challenge the

Florida Supreme Court’s decision to give preclusive effect

to the Phase I findings with respect to addiction and the

generic causation of 23 diseases. Pet. at 7-8, n.3. Rather,

they only challenge Phase I findings of ultimate fact as to

theories of liability. Although the Florida Supreme Court

has spoken on the preclusion issue at the urging of peti-

tioners, no court has yet to apply the findings. This Court

should not prejudge whether certain class-wide findings

are to be given preclusive effect in future actions, none of

which have been tried, and most not even filed. because it

‘ By seeking to vacate the two class representatives’ judgments

based on federal preemption, judgments supported in part by specific

jury findings of negligence before July 1. 1969 ‘App. 200a-204a,

T.50355-56), petitioners effectively demand absolute :mmunity from

hability for their wrongdoing.

2

would require the “premature adjudication of novel consti-

tutional questions.” Nike, Inc., 539 U.S. at 658.”

The only final judgment here is one in favor of two class

representatives who recovered compensatory damages in a

trial court judgment entered in November, 2000.° This court

reviews judgments, not statements in opinions. California v.

Rooney, 483 U.S. 307, 311 (1987). Where statements or

discussions in an opinion raise constitutional questions,

“[t]hat admonition has special force ... for it is our settled

practice to avoid the unnecessary decision of such issues.”

FC.C. v. Pacifica Foundation, 438 U.S. 726, 734-35 (1978).

Petitioners concede that no due process issues are presented

by the two compensatory damages awards: “The preclusion

ruling, which is the subject of the due process challenge, has

no effect on those two individuals.” Pet. at 1-2. Petitioners’

due process assertions relate only to the preclusionary effect

of certain Phase I findings in future litigation brought by

potential class members. “[F]Jederal courts have never been

empowered to issue advisory opinions.” Pacifica Foundation,

438 U.S. at 735. As discussed infra the due process issue has

not been adequately preserved.

* Petitioners essentially argue that there may be a due process

violation if a class member files a lawsuit raising the same claims as in

Engle, and if the class member relies in part on certain class-wide

findings, and if the trial judge gives preclusionary effect to one or more

of the findings, and if the class member prevails on the remaining

issues, including causation, affirmative defenses and damages, and if

the Engle findings played a decisive role in obtaining the verdict, and if

judgment is entered in favor of the class member. “There are ... too

many ‘ifs’ in that proposition to make our review appropriate at this

stage.” California v. Rooney, 483 U.S. 307, 312-13 (1987). }

* Petitioners suggest the “possibility” that Farnan and Della

Vecchia, the two class representatives, “may elect to seek punitive

damages on remand.” Pet. at 1. Class representatives Farnan and Della

Vecchia will} not be seeking punitive damages. They are in failing health

and waive any claims for punitive damages. They only seek to recover

their full compensatory damage verdicts with interest pursuant to the

November, 2009 final judgment that was reinstated by the Florida

Supreme Court.

The decision of the Florida Supreme Court which

provided petitioners full relief from the $145 billion class-

wide punitive damages verdict and several class-wide

findings, came after thirteen years of litigation, multiple

appeals and a two-year jury trial with 157 witnesses,

hardly a prototype for a denial of due process of law.

Petitioners assert that “the verdicts, both class-wide and

in favor of |[Farnan and Della Vecchia] ... were barred by

federal preemption” (Pet. at 1), despite specific jury findings

of negligence occurring prior to July 1, 1969 (App. 200a-204a;

T.50385-86), the effective date of the preemption clause of the

Public Health Cigarette Smoking Act of 1969, 15 U.S.C.

§1334(b) [*1969 Act”]. The preemption issue is not ripe for

review as to class members whose cases have not yet been

adjudicated or even filed. As to Farnan and Della Vecchia,

who started smoking and became addicted years before July

1, 1969, preemption does not apply, at a minimum, to the

pre-1969 jury findings and claims that are not barred as a

matter of law. Thus, nothing the Court can decide on the

preemption question can affect the judgments of Farnan and

Della Vecchia, rendering the matter clearly uncertworthy.

Coleman v. Thompson, 501 U.S. 722, 730 (1991).

Certiorari is also inappropriate where a consideration

of petitioners’ evidentiary-based objections would require a

fact-intensive review of the 60,000 page evidentiary record.

As for petitioners’ objection to the jury instruction on pre-

emption in Phase I, that instruction (as well as the preemp-

tion instruction given in Phase II]-A), was a proper recitation

of the law. In contrast, petitioners’ proposed instruction was

a misstatement of preemption law. Nor have the objections

been properly preserved and presented. See Adams v.

Robertson, 520 U.S. 83, 86 (1997). Petitioners complain that

the Florida Supreme Court did not address preemption | Pet.

at 29), an issue petitioners relegated to a passing sentence in

their fifty-page brief on the merits in the state supreme

court: a sentence that did not even cite Cipollune,’ the

* Cipollone v. Liggett Group, Inc.. 505 U.S 504 11992).

4

principal case on which petitioners now rely. The issue was

not preserved for review. Adams, 520 U.S. at 86; Duest uv.

Dugger, 555 So.2d 849, 851-52 (1990).

STATEMENT OF THE CASE

Petitioners’ Statement contains numerous factual

errors, omits essential facts, and distorts the history of

this complex state class action litigation and key aspects of

the decision of the Florida Supreme Court.

I. BRIEF PROCEDURAL HISTORY

The Engle class action was filed in May, 1994 and was

certified as a nationwide class of sick smokers and their

survivors. The Florida district court of appeal affirmed

class certification in 1996 but limited the class to Floridi-

ans. “Although certain individual issues will have to be

tried as to each class member, principally the issue of

damages, the basic issues of liability common to all mem-

bers of the class will clearly predominate over the individ-

ual issues.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d

39, 41 (Fla. 3d DCA 1996). Notice was disseminated by

publication throughout Florida in 1997, informing Floridi-

ans of the litigation and the common issues trial, and

providing class members with the ability to opt-out to

avoid being bound by the common findings.

The class action came to trial in July, 1998 pursuant to a

trifurcated trial plan providing for “common issues of liabil-

ity and causation” to be tried in Phase I on behalf of the

class, followed by Phase IJ-A, the class representatives’

compensatory damages trial and Phase II-B, the class-wide

punitive damages trial. Class members would then proceed

(in Phase III) before different juries to determine remaining

issues and compensatory damages. R.31276-80. Petitioners

defended the common issues’ trial, calling 25 witnesses and

cross examining 61 witnesses called by the class during

Phase I. T.11135-34678. The twelve-page special interroga-

tory verdict form included questions regarding the generic

causation of 23 diseases associated with cigarette smoking, a

question on addiction, and a series of questions as to ultimate

o

factual issues presented under each theory of liability,

including differing time frames. The verdict form had over

240 questions, including subparts. App. 192a-206a. The jury,

which heard Phase I evidence for close to a full year, deliber-

ated for seven days and answered all the questions.’

During the Phase II-A trial, the same jury considered

claims of three class representatives, Mary Farnan, Frank

Amodeo and Angie Della Vecchia.’ The Phase IJI-A eighteen-

page single-spaced verdict form had 276 questions, including

sub-parts. The jury found in favor of the class representa-

tives on most issues, tempered by comparative fault. Farnan

was awarded $2,850,000, and the statutory beneficiaries of

Della Vecchia, a total of $4,023,000. T:50373-91. The trial

court’s Final Judgment and Omnibus Order of November,

2000 found that the jury’s verdicts were based on “an enor-

mous amount of evidence” and that “after sitting for two

years in trial, it is inconceivable that this jury ignored or

misconceived the evidence or the merits of the case.” App.

182a.

* Petitioners, citing various transcript pages, mischaracterize the

Phase 1 Engle trial as “sprawling proceedings,” where “respondents

purported to substantiate their neghgence and product defect claims by

referring to scores of different agarette types and brands marketed at

different times by different manufacturers.” Pet. at 15. But that evidence,

which was from peutioners’ agents and representatives, constituted largely

irrelevant testimony introduced by petuuoners to confound and obfuscate

» the issues. The hugatuion was focused on the petitioners’ methods of

addicting class members to cigarettes and keeping them addicted.

* Pettioners asserted that Farnan’s lung cancer was of a type ‘brun-

chivlalveolur caranoma) that had been fuund by the jury in Phase 1 not to be

caused from smoking, 7.385 12-27. According to petitioners. Della Vecchia’s lung

cancer that metastasized to her brain and caused her death, was actually scar

ussue unrelated to cigurette smoking. T.42730-37. Similarly. they argued that

Amodevs furvngeal cancer. that was diagnosed in 1987 and caused him to be

unable to eat or drink ansthing by mouth since that ume and wo receive all

nuunshment through a feeding tube, was caused by “wood dust.” T.38865-68.

The jury rejected those defenses. However the jury found that Frank Amodeo

knew or should have known that his throat cancer was caused from smoking

and that he was addicted to smoking pnor to May, 1990, precluding him from

recovery under Flonda’s statute of imitauons. The jury findings as to Amodeo

were upheld by the district court and the Flonda Supreme Court.

6

The Florida district court of appeal reversed the class

certification that it previously upheld, barred all punitive

damages claims, vacated the compensatory damage judg-

ments of the three class representatives, and reversed on

additional alternative grounds. App. 68a-126a. The Florida

Supreme Court quashed the district court’s misapplication of

res judicata with respect to its erroneous extinguishment

of punitive damages claims, reinstated class certification for

Phases I and II-A, ordered that the class be prospectively

decertified on remand for remaining class members’ issues,

reinstated two of the three compensatory damages awards

(against all petitioners except Liggett and Brooke (App. 43a)),

but vacated the class-wide punitive damages award.’ The

Florida Supreme Court wrote: “[A] review of the verdicts

reveals that each verdict reflected a careful and differentiated

analysis as to comparative fault and individual damages and

in no way justifies the Third District’s overall conclusion that

this was a runaway jury.” App. 39a. At the request of petition-

ers, the court also considered the future effect of the class-wide

Phase I liability findings, determining that certain findings

would not be given preclusive effect in class members’ future

actions, i.e., (i) fraud and misrepresentation, (ii) conspiracy to

commit fraud, (iii) intentional infliction of emotional distress

and (iv) entitlement to punitive damages.°

’ The decision analyzed the extended procedural history of Engle,

(noting that the district court in Engle IJ had misapplied Florida’s doctrine

of law of the case), explained the absence of choice of law issues where only

Florida law applies, and discussed the reasons why the court reinstated

class certification. App. 23a-33a. It is disingenuous for petitioners to

suggest that the Florida Supreme Court “concluded, with no analysis, that

the trial court did not abuse its discretien in certifying the class.” Pet. at 9-

10. It is also misleading for petitioners to state that the Florida Supreme

Court “recognized that class action treatment was inappropriate and

ordered the class decertified.” Pet. at 1-2. Rather, the court found that class

treatment was proper for completed Phases I and I-A but inappropriate for

future proceedings involving only individual issues.

* Petitioners (other than Liggett and Brooke) have never chal-

lenged the sufficiency of the evidence to support the Phase I or Phase

II-A findings in any appellate forum below; nor do they do so here.

il. THE PETITION OMITTED ESSENTIAL FACTS

BEARING DIRECTLY ON THE QUESTIONS

PRESENTED

Pursuant to U.S. Sup. Ct. Rule 15, the following

additional facts, the significance of which is explained

more fully infra, constitute further reasons for denying the

petition.

Due Process: Petitioners’ due process argument is

predicated on their objections to the Phase I special

interrogatory verdict form that they describe as too “gen-

eralized.” Pet. at 1. But a special iiterrogatory verdict

form was used, not a general verdict. It is also inaccurate

for petitioners to suggest that the trial court “adopted

respondents’ generalized [verdict] form.” Pet. at 7. As

discussed infra, petitioners had substantial input in

developing the verdict form that was used.

Contrary to their position here, petitioners had previously

proposed far more general questions for the Phase | verdict

form than the questions of ultimate fact contained in the

verdict form that was used. R.33722-33811. Although R.2J/.

Reynolds Tobacco Company represented to the trial court that

it was “incumbent upon all of us” to provide additional “enu-

merated” statements for a more detailed verdict form

(7.35954), petitioners never did so. Despite being repeatedly

requested to do so by the trial court, petitioners failed to

submit a feasible alternative verdict form. R.49258-72; 49296-

49322; T.35967-68. Petitioners also objected to a senes of

additional questions proposed by the class which were based

on allegations in the amended complaint. R.49258-72;

T.35967. Petitioners Brown & Williamson Tobacco and Ameri-

can Tobacco announced their preference for the verdict form

that was used as a “middle ground,” although they now

challenge it in their due process argument. 1.35969.

The petition portrays the preclusion ruling as an ex-

traordinary event, but when petitioners thought they would

prevail on the merits in Phase I, they repeatedly acknowl-

edged the preclusionary effect of the findings, proclaiming:

“lI|f the defendants win, we want as many people as possible

8

bound” (R.10708-10809 at 96) and if the jury answers “no...

then not a single Florida smoker can recover.” T.36007."

Preemption: In their brief on the merits before the

Supreme Court of Florida, petitioners included one sentence on

preemption, without a reference to Cipollone, not preserving

that issue for review. Here, petitioners’ preemption arguments

challenge all claims, but petitioners argued otherwise in the

trial court. There, petitioners sought only partial summary

judgment on preemption issues, asserting that limited portions

of certain claims were subject to federal preemption under

Cipollone and the 1969 Act. R.12960-63; 12974-13066. Their

pretrial motion was granted in part and allegations were

stricken from various counts, including the fraud and conspir-

acy claims, refuting petitioners’ argument here that “the

incantation of these words [fraud, conspiracy, etc.] sufficed to

defeat petitioners’ preemption defense.” Pet. at 24. Moreover,

until now, petitioners acknowledged that not all Engle claims

were preempted: “[T]here is no contention that ... [the 1969

Act] preempts express warranty or affirmative fraud, misrepre-

sentation, or conspiracy for affirmative fraud, misrepresenta-

tion” (T.48171, 48290); “Defendants have not tried to argue that

all of plaintiffs’ claims are preempted.” R.15243-51. Petitioners’

pre-trial motion for partial summary judgment did not seek to

preempt any allegations as to why smokers start to smoke,

including allegations of youth marketing, nor did they seek to

* Although they now attack the Phase I findings through their due

process argument, petitioners told the jury during Phase IJ-A that “Your

verdict is in. We accept it. It’s over with. It’s there forevermore” (T.38829) and

will “resonate forever” to enable “other class members, however many

thousands or hundreds of thousands it may be .. . [to] recover,” and “ensure

that all class members have a day in court.” T.38878, 38896-97. The petition

asserts that the “jury's findings provide no clue” as to petitioners’ misconduct

(Pet. at 16), but during the punitive damages phase their theme was each

defendant “has gotten the message,” (T.51366); we know what we did wrong

and we have changed and should not be punished. T.51072-73; 51085, 51253-

54; 51366; 57201; 57407; 57483; 57514; 57596. Dan Webb, lead counsel for

Philip Morris, argued that Philip Morris’ CEO ‘ss going to tell you he

understands your verdict very very well. He is not going to tell you he does

not know what your verdict means. He is not going to tell you that at all.”

T.51085.

9

preempt in whole or part the claims of breach of implied

warranty and express warranties. R.12974-13066.

Petitioners fail to disclose that the two compensatory

damages judgments are also supported by specific jury

findings in Phases I and II-A of negligence that occurred

before July 1, 1969 (App. 200a-204a; T.50385-86), findings

that are not subject to federal preemption. In support of

their evidence-based preemption argument, petitioners now

challenge evidence that was admitted in response to their

defenses of consumer expectations and awareness of the

risks of smoking. Although petitioners argue here that

such evidence is “functionally equivalent” to claims pre-

empted in Cipollone (Pet. at 20-24), they announced at the

beginning of the trial that “this case [is] about what people

knew about the health risks of smoking when they made

the choice to smoke,” (T.10950), and “Why [do] young

people smoke?” T.10956. “{T]he issues in this case [are]

whether smokers can quit [and] why smokers start smok-

ing.” 7.37410.

Although petitioners object to the Phase I jury instruc-

tions on preemption, which represented a combination of the

litigants’ submissions, class counsel twice offered to modify

the instruction: “I have volunteered to take out the language

they had a problem with,” (T.36285, 36152-53), but petition-

ers declined: “I don’t think a shortened instruction ... is an

appropriate way to go.” 1.36153. So the trial court gave the

longer combined instruction on preemption. T.37569-70. The

petition also ignores the more expansive Phase IJ-A preemp-

tion instruction given during the Farnan and Della Vecchia

trials that included the “neutralization” language petitioners

now mistakenly assert was lacking, wniting incorrectly:

“(T]he court gave an instruction that said nothing about

neutralization.” Pet. at 24, n.10 and 8-9.

10

REASONS FOR DENYING THE PETITION

I. THE COURT SHOULD NOT ADDRESS PETI-

TIONERS’ HYPOTHETICAL DUE PROCESS

CLAIMS

Petitioners concede that “[t]he preclusion ruling,

which is the subject of the due process challenge, has no

effect” on class representatives’ Farnan and Della Vecchia

who have a final judgment." Thus, the posited due process

issues apply only to purported class members in future cases

that have not yet been tried (or not filed). No absent class

member has a judgment that depends on the preclusion

ruling that petitioners challenge here. No court has yet to

even apply the findings. Moreover, petitioners concede that

preclusion is proper with respect to the general causation

and addiction findings. Thus, the question posed is not

whether the Phase I findings can or should be given preclu-

sive effect, but rather, whether giving preclusive effect to

certain findings may, in the future, implicate due process.

A. The Due Process Claim Is Not Ripe for Review

Petitioners’ claim of future due process violations. is

illusory and speculative. It is not tied to any class member

with a judgment, or even a determination of liability. App.

18a. Petitioners fail to demonstrate “actual prejudice”

because their “due process claims are speculative and

premature.” U.S. v. Marion, 404 U.S. 307, 325-26 (1971).

When considering a claim of a due process violation, “[t]he

‘° Where petitioners do not challenge the use of the Phase I findings in

the Phase I-A trials of Farnan and Della Vecchia before the same jury, it is

apparent that petitioners’ “extreme application of the doctrine of res judicata”

argument is a disguised Seventh Amendment re-examination argument,

which also explains petitioners’ reliance on Gasoline Prods. Co. v. Champlin

Refining Co., 283 U.S. 494 (1931), a re-examination decision. Pet. at 17. The

Florida Supreme Court found there was no violation of Article I, §22 of the

Florida Constitution, noting that the Seventh Amendment does not apply to

actions brought in state court. App. 3la-32a. See Gasperini v. Center for

Humanities, Inc., 518 U.S. 415, 432 (1996) (“The Seventh Amendment ...

governs proceedings in federal court, but not in state court.”).

11

criterion is not the possibility of conceivable injury.” Dusen.

berry v. U.S., 534 U.S. 161, 170-71 (2002), citing Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 318

(1950). In accord, U.S. v. Lovasco, 431 U.S. 783, 790 (1977)

(“Proof of prejudice is generally a necessary but not suffi-

cient element of a due process claim”); U.S. v. Valenzuela-

Bernal, 458 U.S. 858, 868-69 (1982) (same). If a lower

court ever upholds a specific verdict in favor of a plain-

tiffclass member, in which the preclusive effect of a

finding approved by the Florida Supreme Court is decisive,

petitioners may choose to seek review with respect to the

new judgment where all the facts are known.”

A writ of certiorari was dismissed as improvidently

granted in Nike, Inc., 539 U.S. at 667, 663, “[alfter receiving 34

briefs on the merits (including 31 amicus briefs) and hearing

oral argument.” “[T]his Court will not anticipate a question of

constitutional] law in advance of the necessity of deciding it... .

The novelty and importance of the constitutional questions

presented in this case provide good reason for adhering to that

rule.” Jd. That reasoning applies here since a review of the due

process and preemption issues that have been raised as to class

members requires “the study of a full factual record.” Nike, 339

U.S. at 664-65 (Stevens, J., concurring). The due process claims

(as well as the preemption claims as to putative class members)

are plainly premature and the Court should deny review for

that reason alone. See also California v. Rooney, 483 U.S. 307,

311-14 (1987) (refusing review where “too many ‘ifs” were

present and later review available if the “ifs” became reality).

* It is disingenuous fur petitioners tu suggest that “defendants

defenses would be reduced to a charade” were this Court to deny

ceruorart. Pet. at 4. Class members must still establish liability in

individual cases. Since the state supreme court decision, there have

been fewer than 100 cases filed. including the cases referenced in the

petition +Pet. at 18-19 and n.8), where petitioners have ruised 24

affirmative defenses, including federal preemption, and have also

challenged the preclusive effect of certain Engle Phase I findings.

12

Not everything contained within an opinion of the

state’s highest court is subject to review by certiorari.”

This Court reviews judgments, not statements in opinions.

Johnson v. De Grandy, 512 U.S. 997, 1003, n.5 (1994); FC.C.

v. Pacifica Foundation, 438 U.S. 726, 734-35 (1978) (the

admonition that the Court reviews judgments, not statements

in opinions, “has special force when the statements raise

constitutional questions, for it is our settled practice to avoid

the unnecessary decision of such issues.... Federal courts

have never been empowered to issue advisory opinions.”).

There is no extant judgment in favor of class members

or unnamed plaintiffs in future lawsuits. “When this Court

reviews the state court’s decision on direct review pursuant

to 28 U.S.C. §1257, it is reviewing the judgment; if resolution

of a federal question cannot affect the judgment, there is

nothing for the Court to do.” Coleman, 501 U.S. at 730. The

only individuals with judgments are respondents Farnan and

Della Vecchia. The petitioners concede that nothing this

Court could do vis a vis petitioners’ due process claim can

affect those judgments.

B. There Has Been No Possible Deprivation Of

Petitioners’ Due Process Rights

“The fundamental requisite of due process of law is the

opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385,

394 (1914). See also Mathews v. Eldridge, 424 U.S. 319, 333

_ (1976). The cases relied upon by petitioners for their “extreme

* The Court noted in Matsushita Electrical Industrial Co., Ltd. v.

Epstein, 516 U.S. 367, 375 (1996) that “usually, a state court will not have

occasion to address the specific question [of] whether a state judgment has

issue or claim preclusive effect in a later action ... ”, ating Marvese v.

American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381-82 (1985).

Although the district court opinion did not address the verdict forms or the

Phase I findings, petitioners challenged the verdict forms and findings in the

state supreme court, asking that court to hold that the “generalized verdict

... cannot be used to determine anyone's claims in Phase III (or in any

individual suit).” Brief on Merits at 21, 27-28. The court’s consideration of the

preclusive effect of the findings, at petitioners’ urging, does not change the

rule that this Court will not review premature and hypothetical issues.

13

application of the doctrine of res judicata” argument, raise due

process concerns when a litigant, who was no¢ a party to an

earlier proceeding, is nonetheless bound by the judgment. See

Richards v. Jefferson County, 517 U.S. 793, 797 (1996) Gudg-

ment in prior action is not binding on individuals who “neither

participated in, nor had the opportunity to participate in,”

prior case); South Central Bell Telephone Co. v. Alabama, 526

U.S. 160, 168 (1999) (plaintiffs in second case were strangers

to earlier litigation and judgment); Hansberry v. Lee, 311 U.S.

32, 40-46 (1940) (absent parties who had no notice or opportu-

nity to participate in prior litigation not bound where class

representatives had actual conflict with absent class members’

interests). Here, petitioners have fully defended through trial

and appeal and cannot claim any violation of the nght to be

heard.”

C. Due Process Issues Have Not Been Ade-

quately Preserved

Under federal and Florida law, petitioners have not

adequately raised and preserved their due process argu-

ments that are predicated on their objections to the Phase

I special interrogatory verdict form.

The verdict form used was not a general verdict but rather

a special interrogatory verdict form pursuant to Florida law,

with multiple questions broken down by defendants under

different time frames, as requested by petitioners.'* The verdict

form that was used included changes requested by petitioners,

'* None of the cases rclied upon by peutioners lend support to their

due process argument. For example. in Faverweather v. Ritch, 195 US.

276. 307 ©1904), the Court held that an earlier judgment was properly

given res yudicata effect although there were no furmal or special findings

of fact. Thus. a true general verdict, without the Engle verdict form's

breakdown of legal issues und ulumute issues of fact, was nevertheless

given res yudicata effect through “an examinauon of the record.” /d. ut 307.

See Flores v. Allstate Ins. Co, 819 So.2d 740, 743 (Fla. 2002),

Standard Jury-Civtl Cases (No. 98.1), 711 So.2d 1 (Fla. 1998). It was

not a “generalized” verdict with “vague jury findings,” contrary to

petitioners’ mischaracterization. Pet. at 1, 3.

14

i.e., the inclusion of subcategories of diseases under the generic

causation question, deletion of references to causation in the

other questions, modification of the Florida standard jury

instruction for negligence, insertion of language in the express

warranty count and the adoptior of petitioners’ question on

entitlement to punitive damages. The verdict form represented

a compromise of the litigants’ positions. Petitioners now chal-

lenge questions they urged the trial court to adopt. For exam-

ple, in discussing the finding of negligence, petitioners now

state: “This finding is a cipher” (Pet. at 16), but petitioners

argued below that the same question was very meaningful

because “an adverse finding is very harmful to the defense...

where the question is exactly ho the trial plan says we're

supposed to be trying [and] . ’s not a happy event if that’s

decided against us. PPaoIe.d.

Petitioners have also been inconsistent with respect to the

common issues to be tried during the Phase I trial, taking

multiple varying positions, contrary to Florida law. See McKee

v. State, 450 So.2d 563, 564 (Fla. 3d DCA 1984); Salcedo v.

Asethacion Cubana, Inc., 368 So.2d 1337, 1338-40 (Fla. 3d DCA

1979). Petitioners first proposed the “more manageable issue”:

“Was it common knowledge among the class ... that smoking

carried significant health risks and that some people find

smoking difficult to stop?” R.2C712.” Then petitioners proposed

addressing only addiction issues: “[W]hat we ought to do is try

the issue of whether or not all the members of this class are

unable to quit smoking because they are addicted to nico-

tine. ... Because if the defendants win on those issues, we can

all go home.” R.13653-54. Petitioners subsequently submitted a

proposed verdict form with six general questions, including:

“Was the ‘Special Projects’ division of the Council for Tobacco

Research established for the purpose of concealing medical

* Petitioners argued below that the “common knowledge” issue was

“dispositive of the product defect claim .. . because if the product is not more

dangerous than expected by the ordinary consumer, it is not defective.” Jd.

15

rescarch under the misuse of the attorney-client privilege?

Yes __ No__” R.33772-33811."

In their reply brief before the district court, petitioners

acknowledged that “[a] generalized verdict form may be appro-

priate even in a bifurcated class action with separate juries, if the

pleadings and proof provide sufficient particularity to establish

precisely what the jury found to be unlawful.” Reply Brief at 32.

Petitioners now say the opposite: “The highly generalized and

decidedly ambiguous nature of these findings prevents any other

jury from applying them consistent with due process.” Pet. at

16."" Petitioners ultimately proposed a “blank-line” verdict

form with narrative questions where the jury would be

required to provide extensive identifying information about

specific scientific studies, including dates, times and locations,

as well as other evidentiary data; an overwhelming task for a

jury following a one-year trial with thousands of pages of

exhibits and testimony from 86 witnesses in Phase | alone.”

“ Petitioners’ proposed question addressed the conceulment of

medical research and is also inconsistent with petitioners’ argument

here that all concealment claims are preempted under Cipollone (Pet.

at 21-22), a position refuted by Cipollone, 505 U.S. at 530 and n.28.

“ But even if this were a general verdict form, which it is not. the

Court recognized in Emich Motors Corp. v. General Motors Corp., 340

‘U.S. 558. 569-72 11951) that a general verdict may be given preclusive

effect with “an examination of the record, including the pleadings, the

evidence submitted, the instructions under which the jury arrived at its

verdict. and any opinions of the court,” relying on Sealfon v. U.S., 332

U.S. 575. 578 +1948). In accord, Hanover Shoe, Inc. v. United Shoe

Machinery Corp.. 392 U.S. 481, 454-55 (1968) (general verdict in action

brought by U.S. under anti-trust luws was given preclusive effect in

subsequent private action for treble damages, relying on Emuch). Cases

cited by petitioners also hold that extrinsic evidence may be properly

considered when giving preciusive effect to a “general” verdict. See De

Sollar v. Hanscome, 158 U.S. 216. 221 41895), citing Ruesell v. Place, 94

U.S. 606, 608 (1876). See also Faxerweather, 195 U.S. at 307 ‘res

judicata effect after an “examination of the record”). Subsequent courts

may properly examine the record here, if further detail! is warranted.

“ The Second Circuit rejected a “blank-line” interrogatory verdict

form where there had been over 150 exhibits and 25 witnesses because

completing the verdict form would “require the jury to perform super

(Continued on following page)

16

In June, 1998, prior to the commencement of trial, the trial

judge advised petitioners that their proposed open-ended

verdict form was unacceptable.” Defense counsel tenta-

tively agreed to revise the verdict form so that the jury can

“choose” rather than fill-in-the-blanks (R.36273-76), but

defendants never did so.”

Petitioners also objected to a series of interrogatory

questions taken from allegations in the amended com-

plaint, to be answered “yes” or “no.” R.48404-17; T.35950-

51; T.35967-68. Petitioners declined the trial court’s

repeated invitation to revise the verdict form, saying that

it was not “defendants’ job” to prepare and submit an

acceptable form. T.36298-99.” The trial court responded:

“We are just going around in circles.” T.35971. In exercis-

ing his broad discretion, he utilized a special interrogatory

verdict form that was a combination of the litigants’

human acts of memory,” and “demand of the jury a recall] of Homeric

proportions.” U.S. v. Ogando, 968 F.2d 146, 148-49 (2d Cir. 1992).

The trial court stated that “You can go ad infinitum before you

get an answer to... Tdentify the scientific studies concealed by the

defendants and when such studies were concealed.’” R.36226-92 at 44-

45. “[Lleaving a question like that open-ended to a jury could have

results you can’t even think about.... [RJather than leave an open-

ended question, you can make a list of those studies which were either

proven or at least brought up. . . {aJnd pick off which one.” R.36318-19.

* Counsel for RJ. Reynolds Tobacco similarly said to the trial court

‘that it was “incumbent upon all of us” to make certain changes to the

verdict form for Phase I, including “enumerated” misstatements that the

jury would consider (T.35954). Petitioners never acted on that incumbency.

*" Petitioners were wrong. Florida law requires that a litigant who

objects to a verdict form present a reasonable alternative to preserve his

objection. See J.T:A. Factors, Inc. v. Philcon Services, Inc., 820 So.2d 367,

371-72 (Fla. 3d DCA 2002) (it was within the discretion of the trial court to

reject “J.7:A.’s more complex interrogatory verdict form”), S & S Toyota Inc.

uv. Kirby, 649 So.2d 916, 918 (Fla. 5th DCA 1995) (burden is on litigant that

requests a particular type of special verdict form to propose and offer a

form with the requisite findings); Whitman v. Castlewood Intl Corp., 383

So.2d 618, 619-20 (Fla. 1980) (same); E.F’ Hutton v. Sussman, 504 So.2d .

1372, 1373 (Fla. 3d DCA 1987) (“it was Hutton’s burden to offer special

verdict forms, which would have required the finding Hutton now com-

plains was lacking, and since it failed to do so, we find no error’).

17

proposals. R.48564-78; 35903-0535; 35987; 35994-36008;

35900-01; 35942; R.49075-49123. Brown & Williamson

Tobacco and American Tobacco preferred the special

interrogatory verdict form ultimately used, rather than

the more specific interrogatory questions prepared by the

Class, referring to the former as a preferable “middle

ground.” 1.35969. There was no error, and certainly no

preservation of arguable error of constitutional dimension.

Finally, the litigants always recognized that the Phase

I class-wide common issues verdict was intended to be

given preclusive effect in subsequent Phase III individual

trials pursuant to Engle J and the trial plan. Petitioners

told the jury in Phase JJ-A that every class member would

have a day in court because their Phase I findings were

“forevermore” and would “resonate forever.” T.38829-

38878, 38896-97. And up until the time the jury returned

its Phase I verdict, petitioners repeatedly acknowledged

and requested that all Floridians be bound by the Phase I

verdict and by the questions answered “No.” Defense

counsel argued during Phase | that if the jury answered

“No” to a particular question “then not a single Florida

smoker can recover.” 1.36007. Petitioners’ heads I win,

tails you lose concept of due process is unacceptable.

Moreover, it cannot be the basis for certiorari review.

* A further example of petitioners’ one-sided view of the class

action was their urging an expansive notice program to ensure that all

absent class members would be bound by the Phase I verdict: “If the

defendants win, we want as many people as possible bound,” “We expect

to win the case. When we win the case, | want to be able to say, ‘You're

bound by it... ] want them bound’.” "[W]hen defendants prevail in this

case, the ubsent class members will be bound.” R.10804; 9509

oo

18

II. CERTIORARI SHOULD BE DENIED ON THE

PREEMPTION ISSUES BECAUSE THEY WERE

NOT ADEQUATELY PRESENTED IN THE

STATE SUPREME COURT; THEY REST ON

CLAIMS OF IMPROPER ADMISSION OF EVI-

DENCE WHICH ARE BOTH FACTUALLY AND

LEGALLY WITHOUT MERIT; AND THE ULTI-

MATE OUTCOME OF THE CASE WILL NOT BE

AFFECTED BECAUSE THE JUDGMENTS ARE

SUPPORTED BY SPECIFIC JURY FINDINGS

OF PRE-JULY 1, 1969 NEGLIGENCE. i

A. Petitioners Did Not Adequately Present

and Preserve Preemption Before The Flor-

ida Supreme Court

Petitioners seek review of their preemption issue, but

the preliminary question is whether preemption was ade-

quately preserved and presented to the state supreme court.

“(W]e have adhered to the rule in reviewing state court

judgments under 28 U.S.C. §1257 that we will not consider a

petitioner’s federal claim unless it was either addressed by,

or properly presented to, the state court that rendered the

decision we have been asked to review.” Adams v. Robertson,

520 U.S. 83, 86 (1997), citing Yee v. Escondido, 503 U.S. 519,

533 (1992). Where “the highest state court has failed to pass

upon a federal question, it will be assumed that the omission

was due for want of proper presentation.” Exxon Corp. v.

Eagerton, 462 U.S. 176, 181 n.3 (1983), citing Fuller v.

Oregon, 417 U.S. 40, 50 n.11 (1974). Although acknowledging

that the Florida Supreme Court did not address the issue of

preemption, other than with a “fleeting reference” (Pet. at 10,

n.4), petitioners say they properly addressed the issue in

their brief on the merits before the Florida Supreme Court

(Pet. at 11, n.6), and that the “failure to address the preemp-

tion issue does not render this case unworthy of review.” Pet.

at 29. Petitioners do not disclose that their “briefing” on

19

preemption consisted of a single sentence in a 50 page

brief.”

On page 49 of their brief on the merits, petitioners

limited their preemption argument to this sentence as

part of a paragraph and footnote that raised nine other

issues: “For example the trial court improperly allowed

plaintiffs to assert claims preempted by federal law.” That

does not preserve the point. See Beck v. Washington, 369

U.S. 541, 553 (1962) and Sag Harbour Marine, Inc. v.

Fickett, 484 So.2d 1250, 1256 (Fla. lst DCA 1986). Under

Florida law, an issue is not preserved for review by referencing

arguments made in other briefs or pleadings. Duest v. Dugger,

555 So.2d 849, 852 (Fla. 1990) (“Merely making reference to

arguments below without further elucidation does not suffice

to preserve issues, and these claims are deemed to have been

waived.”).” U.S. Sup. Ct. Rule 14/g\i) requires that petition-

ers seeking review in cases from state courts specify:

* Perhaps petitioners were reluctant to argue their federal preemp-

tion issue before the state supreme court because during the Phase I mal,

petitioners’ CEOs and witnesses testified that the federally mandated

warnings on cigarettes were not true (T.14222-23; 15301, 193822-23, 19901),

that science does not know the cause of lung cancer and cigarette smoking

has not been proven to be a hazard with respect to lung cancer (T.28216;

28138) that smoking is not addictive — it is as addictive as eating “gummy

bears” or “carrots,” and that anvone can quit smoking. 7.14223, 14765;

14750; 15790-92: 20797-98; 21407-08. Petitioners asserted dumng Phase |

that smoking does not cause disease and that the Surgeons General and

their Reports were wrong. T.14218-19; 15293-94; 20392-93, 20562.

* It is presumptuous for petitioners to sugyest that the Florida Supreme

Court “abdicated its responsibiiues by affirming judgments contrary to the

federal consutution and statutes without addressing those claims” ‘Pet. at 29),

when the preemption cdaum was not properly raised before that court. Moreover,

the Flonda Supreme Court did mention preemption in a sentence explaining,

consistent with Cipollone and the 1969 Act, that “[ajlthough compliance with the

federal warnings preempted anv claim bused on failure to warn, it did not

elinunate the other causes of achon that the jury had to consider in Phase 1.”

‘Emphasis supplied.) App. 38a. That Ctpollone and the 1969 Act do not

preempt all claums is clearly a correct statement of the law.

* The Florida Supreme Court has repeatedly held that issues are

waived and not properly preserved if presented as a “conclusory

urgument.” See Jones v. State, 928 So.2d 1175, 1182 (Fla. 2006) ‘other

(Continued on following page)

20

The stage of the proceedings, both in the court of

first instance and in the appellate court, when

the federal questions sought to be reviewed were

raised; the method or manner of raising them

and the way in which they were passed on by

those courts; and pertinent quotations of specific

portions of the record ... so as to show that the

federal question was timely and properly raised

and that this Court has jurisdiction to review the

judgments on a writ of certiorari.

Petitioners do not even attempt to make that showing

with respect to their evidence-based preemption issues.

Pet. at 21-23. They have not demonstrated that the evidence

was not properly admitted on non-preempted grounds, to

counteract petitioners’ defenses of consumer expectations,

consumer awareness and why smokers start smoking.

Petitioners erroneously state that the Florida district court

of appeal “did not address petitioners’. .. Labeling Act preemp-

tion.” Pet. at 3, 29. But the issue was addressed by that court in

connection with petitioners’ jury nullification argument (App.

106a-107a and n.35). On that point, the Florida Supreme Court

disagreed, finding that “[T]hese arguments were not an at-

tempt to tell the jury to ignore the law.” App. 39a.”

claims present merely conclusory arguments insufficient to state an issue”);

Anderson v. State, 822 So.2d 1261, 1268 (Fla. 2002) (“Anderson failed to

brief and explain what the alleged cumulative errors are, and what their

impact is on this case. Thus, the claim is waived.”), Randolph v. State, 853

So.2d 1051, 1063, n.12 (Fla. 2003) (“References to arguments below without

further elucidation does not suffice to preserve issues and these claims are

deemed to have been waived.”); Farina v. State, 937 So.2d 612, 617 (Fla.

2006) (“Claim 6 (cumulative errors deprived Anthony of a fair trial) ©

presents a conclusory argument insufficient to state an issue.”); Donald v.

State, 952 So.2d 484, 489 (Fla. 2007) (“We reject several other claims that

present merely conclusory arguments insufficient to state an issue.”).

** Because the Florida district court of appeal did not reverse on

the preemption issues, although it did address one aspect of petitioners’

preemption arguments, petitioners now contend that the district court

showed a “manifest disregard ... for federal preemption ... [and]

acquiesced in the subversion of controlling federal law.” Pet. at 29. But

it is more likely that the district court found petitioners’ fact-bound

(Continued on following page)

Petitioners object to the instruction on preemption, but

their argument here has not been properly presented or

preserved. Petitioners assert that “the court gave an instruc-

tion that said nothing about neutralization” (Pet. at 24,

n.10), but the relevant preemption instruction given in

connection with the trials of Farnan and Della Vecchia’s

claims, stated in part: “Federal Law ... preempts any claim

that cigarette advertising and promotion neutralized the

federally mandated warnings after July 1, 1969.” T.50252-54.

The jury instructions on preemption that were given at

petitioners’ request during Phases I and II-A were a combi-

nation of the parties’ submissions. Class counsel had twice

offered to modify the language in their proposed “failure to

warn” instruction, “I have volunteered to take out the

language they had a problem with,” (T.36285), but petition-

ers declined the offer, rejecting the “shortened instruction.”

7.36153. Petitioners’ proposed preemption instruction in the

common-issues trial (App. 190a-19la) was highly argumen-

tative and erroneously suggested that all claims against

tobacco companies are barred after July 1, 1969, contrary to

Cipollone. See T.36148-36155; 36279. Petitioners’ proposed

instruction refused to acknowledge that certain post-July 1,

1969 evidence was properly admitted on non-preempted

grounds (i.e. relevant to consumer expectations, consumer

awareness and why smokers start to smoke), and sought to

erroneously instruct the jury, without limitation, “to ignore

any such claims or suggestions or evidence.” App. 191a.

evidentiary and jury instruction preemption arguments to be without

merit, particularly where the jury's specific pre-July 1, 1969 findings of

neghgence, at a minimum, are not preempted and those negligence

findings alone fully support the verdicts and judgments. App. 200a-

204a. T.50385-86. Moreover. the intermediate appellate court's reasons

for not addressing the preemption issucs in more detail is not relevant

to any issue before this Court.

22

B. The Claims Of Improper Admission Of Evi-

dence Do Not Present An Appropriate

Question For Review In This Court

Although nearly silent on the matter of preemption before

the state supreme court, petitioners now challenge “the ver-

dicts, both class-wide and in favor of two individual respon-

dents” (Pet. at 1), on the basis of selected trial evidentiary

rulings and a jury instruction. But petitioners ignore the fact

that the jury also found them liable on pre-1969 failure to warn

claims that are not subject to preemption. App. 200a-204a.

They engage in selective and partial recitation of certain

evidence admitted at trial, while ignoring the context and the

record as a whole, violating basic appellate and evidentiary

principles, including the discretion of Florida state court judges

in determining the admissibility of evidence. Petitioners do not

limit their challenges here to the judgments of Farnan and

Della Vecchia, arguing that absent class members’ future

hypothetical claims should also be preempted, without any

information about those claims including whether the claim-

ants started smoking before or after July 1, 1969.

Essentially, petitioners seek to undermine all of the

claims, including future claims, by equating snippets of —

evidence during a two-year trial to the limited claims in

Cipollone that this Court found preempted (e.g. failure to

warn post-July 1, 1969 and neutralization of federally

mandated warnings). But federal preemption under

Cipollone and the 1969 Act relates to the preemption of

claims, not evidence. “[W]e must look to each of petitioners’

common-law claims to determine whether it is in fact pre-

empted.” (Emphasis supplied). Cipollone, 505 U.S. at 523.”

* Preemption issues are ordinarily raised and determined prior to

trial. Here, the trial court entered a partial summary judgment finding

that certain allegations under various claims were preempted. Signifi-

cantly, in their February, 1997 motion seeking only partial summary

judgment, petitioners did not assert that any claims in their entirety

were preempted, but only paragraphs or subparagraphs within limited

claims, representing approximately 20% of the 154 paragraphs in the

amended class action complaint. R.12960-63; 12974-13066. Petitioners did not

seek to preempt the allegations in the complaint relevant to their defenses of

(Continued on following page)

23

And even as to those snippets of challenged evidence,

petitioners do not attempt to demonstrate that (a) a proper

objection was made in the record for each item, (b) the

admission of the evidence raised preemption problems, (c)

the evidence was not admissible on some other basis that

did not raise preemption issues, and (d) the evidence was

not merely cumulative of properly admitted evidence, so

that any error is rendered harmless.

Petitioners challenge evidence that was admitted in

response to petitioners’ “awareness” and “consumer

expectations” defenses; evidence that was addressed by

petitioners beginning in their opening statements: “What

this case is about [is] what people knew about the health

risks of smoking when they made the choice to smoke,”

(T.10950); “Why [do] young people smoke?” (T.10956);

“What people knew?” (T.10957).” Cipollone and the 1969

Act were never intended to strip claimants of their ability

to refute and respond to petitioners’ consumer awareness

and consumer expectations defenses.

consumer awareness and why smokers start to smoke, including allegations of

marketing to vouth (R.12974-13066, paragraphs 43(kkXIXnnXzz), 73, 80, 110,

119), and did not challenge certain claims at all (e.g., breach of implied

warranty and express warranty). R.12974-13066. Petitioners do not challenge

the order granting partial summary judgment here.

“ During opening statements, defense counsel also addressed the

issue of whether cigarettes are defective, arguing that the jury will be

asked to determine “whether or not the average consumer was aware of the

risks of smoking, [the] health risks.” 11070-71. During opening statements

in Phase IJ-A “awareness” issues were once again center-stage (T.38777):

“Information regarding the health risks associated with smoking were

available to Mrs. Farnan virtually from the time she began to smoke

throughout all of the intervening vears” (T.38779), “Mrs. Farnan was aware

of the msks of smoking throughout all of the time that she smoked”

‘T.38825), “You're going to find out what two individual people knew about

whether smoking was risky or not” (T.38878); “[Wjhy both of these folks

began smoking.” 1.38900. In discussing the Phase II-A verdict form during

closing arguments in the compensatory damages trial of Farnan and Della

Vecchia, defense counsel said to the jury: “Awareness evidence applies to a

whole bunch of different questions that vou're going to be asked” (T.37275-

76), and “the issues in this case [are! whether smokers can quit Jand] why

smokers started smoking.” 7.37410.

24

Because petitioners’ preemption argument is predi-

cated on the admission of evidence at. trial and therefore

fact-specific, this Court would need to examine the eviden-

tiary record in order to make factual determinations on

disputed points.” That use of certiorari is unavailing. See

Goodman v. Lukens Steel Co., 482 U.S. 656, 664 (1987)

(“we are not inclined to examine the record for ourselves

absent some extraordinary reason for undertaking this

task”); Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 841

(1996) (Court would not undertake to review “lengthy and

complex record . . . reached after a 3-week trial”); N.L.R.B.

v. Hendricks County Rural Elec. Membership Corp., 454

U.S. 170, 177 (1981) (certiorari was improvidently granted

where the Supreme Court is “presented primarily with a

question of fact which does not merit Court review”); U.S.

v. Johnston, 268 U.S. 220, 227 (1925) (“we do not grant

certiorari to review evidence and discuss specific facts.”).

C. Key Factual Premises Upon Which The

Preemption Claims Are Based Are False

Petitioners argue that. “{rlespondents’ claims are func-

tionally equivalent to those held preempted in Cipollone,”

(Pet. at 20) and then misstate the Engle evidence and theories

of liability in order to support their erroneous premise. Con-

trary to petitioners’ contentions, respondents never asserted

that “post-1969 advertising and promotions should have

included additional, or more clearly stated warnings,” (Pet. at

21) or that “petitioners’ marketing activities ... undermined

or ‘neutralized’ the federal warning labels.” Pet. at 22. Why

people smoke and why they started smoking were issues

raised by petitioners in connection with consumer expecta-

tion and awareness defenses.”

* For example, pre-July 1, 1969 tobacco advertisements were

"properly admitted under the viable pre-1969 failure to warn claims and

post-July 1, 1969 advertisements were properly admitted that contained

false information, pursuant to Cipollone, 505 U.S. at 524, 528-29.

® In addition to raising defenses that opened the door to limited

testimony about smoking initiation, including youth marketing, during

(Continued on following page)

ae

25

Petitioners state that there was “testimony concerning a

presentation focusing on 65-70 different tobacco advertise-

ments, including an ad for Camel cigarettes, Chesterfields,

and Virginia Slims,” referring to T.12879-82. Pet. at 6, n.1.

But they are referring to voir dire examination, not testi-

mony before the jury. Moreover, the “presentation” was

excluded by the trial court. T.12894-95. Thomas L. Petty,

M.D., a pulmonologist who collected old tobacco advertise-

ments as a hobby, had a presentation of tobacco ads from the

1930s, 40s and 50s, years before the federally mandated

warnings, that he made at medical schools. T.12867, 12875.

He was permitted to only identify his old ads, without

making his presentation or expressing any opinions regard-

ing the tobacco advertisements, and identified approximately

six ads, not 65-70. T.12945-49, 12951.

Petitioners also erroneously state: “Witnesses testified

that petitioners failed to warn smokers that nicotine was

addictive. T.12020-27; T.13479-80.” Pet. at 21. The first

reference (T.12020-27) is to a side-bar conference, outside

the presence of the jury, during the testimony of Dr. Neal

Benowitz, a nicotine specialist who never testified that

petitioners failed to warn smokers that nicotine was

addictive. Instead, it was counsel for petitioners who

expressed his belief that a particular tobacco internal

document offered into evidence during Benowitz’ testi-

mony was intended “to show that the defendants sup-

pressed, concealed or otherwise should have warned about

the contents cf this document.” T.12020. But the document

was offered to demonstrate petitioners’ knowledge of the

addictiveness of nicotine in 1972, since petitioners denied

Phase I Philip Morris conducted a $100 million national television

adverusing campaign with “[. Vo commerciais.. directed at saying peer

pressure is why kids smoke.” T.17§85; 16727, 16258. The class was

powerless to stop the Philip Morris advertising campaign (7.17113;

17832-3585), or Brown & Williamson Tobacco’s website that was launched

during Phase I and also addressed “marketing to youth and Brown &

Williamson’s youth responsibility program,” as well as other Engle

issues. R.46923-46996. Now petitioners argue that references to vouth

marketing are preempted. ‘Pet. at 23, n.9).

26.

at trial that nicotine was addictive. T.12020-21. The class

did not raise any failure to warn claims post-July 1, 1969.

Nor did Dr. Michael Siegel testify that “petitioners failed

to warn smokers that nicotine was addictive.” T.13479-80.

Pet. at 21. Dr. Siegel testified as to scientific information

that was not shared with the public health community.

His testimony did not address warnings. T.13480.”

Petitioners inaccurately assert that “one of respondents’

experts testified that the use of ‘healthy and vigorous’ people

in tobacco advertising minimized the impact of the warnings

on smokers and potential smokers, including minors,” citing

T.17265; 11377-78; 17210. Pet. at 22. The transcript refer-

ences are to the testimony of Dr. Jeffrey Arnett and former

U.S. Surgeon General Julius Richmond, M.D. Dr. Arnett’s

testimony responded to “Why do young people smoke?” the

question posed in petitioners’ opening statements (T.10956,

11063), and refuted petitioners’ assertions that advertising

does not cause children or anyone to start smoking but.

rather only impacts smokers’ decisions to switch brands.

T.16227-29; 16233; 18465; 20301; 20933. Dr. Arnett testified

that cigarette advertising influences non-smoking adolescent

smoking initiation (T.17210, 17264-65), but he never testified

about warnings or their impact on youth or anyone else. Nor

did Dr. Richmond testify about warnings. Pet. at 22. He

testified on redirect examination that certain advertisements

influence smoking initiation by youth, a subject introduced

by petitioners through cross examination about whether peer

pressure results in the initiation of smoking. T.11376-78.

Petitioners erroneously assert that class counsel

“expressly invited the jury to disregard the law.” Pet. at 6.

But the Florida Supreme Court found otherwise: “These

arguments were not an attempt to tell the jury to ignore

* Several of petitioners’ references are to arguments of counsel

outside the presence of the jury, not evidence (T.10480, 16871-81; Pet.

at 23), or to argument of counsel where no objections were raised.

(T.16900; Pet. at 23), (7.36371; Pet. at 26), (T.40247-51; Pet. at 22),

(T.36436; Pet. at 23). In all instances, the evidence challenged by

petitioners was admissible on non-preempted grounds.

27

the law.” (Emphasis supplied). App. 39a. “Context is

crucial.” App. 35a. The petitioners describe the trial court

judge as acting in a contemptuous fashion with “manifest

disregard ... for federa] preemption.” Pet. at 8, 29. Peti-

tioners fail to disclose that in each referenced instance

where Judge Kaye expressed disagreement and frustra-

tion with preemption, he nevertheless ruled in favor of the

petitioners, sustaining objections and instructing the jury _/

to disregard the evidence or testimony (T.16626-27~

27879). Petitioners state: “When petitioners objected, the

court expressed contempt for the very idea of federal

preemption, saying that it ‘[bJoils my blood and boggles my

mind,’” referring to T.16621-22. Pet. at 8. What actually

happened is that Judge Kaye commented, outside the

presence of the jury, that the application of preemption

prevented important advances in science from being

shared with the public, and then defense counsel, Richard

Kirby said: “It boils your blood, I can tell.” To which Judge

Kaye responded: “Boils my blood and boggles my mind.”

Mr. Kirby responded: “I know it does and I appreciate your

personal feeling about it.” T.16622. Although the trial

judge was fru:trated by petitioners’ platitude: “That’s

what preemption does,” he nevertheless repeatedly sus-

tained petitioners’ objections on preemption and granted

their requests for curative instructions. T.27878-79; 27886.

Thus, the petitioners have offered a misleading presenta-

tion of the colloquy and ignore the fact that Judge Kaye

adhered to preemption principles and Cipollone, even

when he believed they were contrary to public health

interests.”

“ Compare Cipollone, 505 U.S. at 544, Blackmun, J., Kennedy and

Souter, J.J., concurring in part and dissenting in part: “By finding

federal preemption of certain state common-law damages claims, the

decision today eliminates a critical component of the States’ traditional

ability to protect the health and safety of their citizens.”

28

D. There Is No Conflict Warranting A Reex-

amination Of Cipollone

Petitioners suggest that there is a conflict among

courts that requires this Court’s attention and its re-

examination of Cipollone. There is no conflict where

petitioners concede that the Florida Supreme Court’s

“fleeting reference to preemption” (Pet. at 10, n.4), “fail[ed]

to address the preemption issue.” Pet. at 29. The requisite

“real or intolerable conflict on the same matter of law or

fact,” ROBERT L. STERN ET AL., SUPREME COURT PRACTICE

at p.225 (8th ed. 2002) is not present. Petitioners assert:

“This Court’s review is needed to resolve the conflict as to

whether characterizing failure-to-warn and neutralization

claims as fraudulent conduct claims defeats preemption.”

Pet. at 24. But the Florida courts, below, did not render

any preemption decisions based on how a claim was

labeled. For example, addressing an objection to evidence

class counsel described as “false advertising [where] ...

there’s no preemption,” (T.2786), the trial court found that

under Cipollone “it leans more toward neutralization,” and

sustained the objection. T.27877-79. The order granting

petitioners’ motion for partial summary judgment on

preemption determined that allegations contained within

claims for fraud, conspiracy, negligence and strict liability,

were preempted. R.12960-63; 12974-13066. Nor was the

labeling of a claim dispositive in determining preemption

issues in any of the post-Cipollone cases cited in the

petition and Appendix G.”

Farnan and Della Vecchia started smoking and were

addicted to cigarettes prior to July 1, 1969 and are subject

to essentially no preemption defenses as to their claims that

* Petitioners have expanded their petition with an eight page

single-spaced “Appendix G” containing a list of 45 post-Cipollone smokers’

decisions, captioned: Post-Cipollone Decisions Addressing Preemption of

“Concealment” and “Neutralization” Claims, with a description of each case

prepared by petitioners App. 207a-214a “Counsel should of course be

sensitive not to include material [in the appendix] that may be perceived as

ex attempt to avoid the court's page limits.” STERN supra at 609.

20

arose before the 1969 law went into effect (e.g. pre-1969

failure to warn claims), and on those pre-1969 claims, alone,

their judgments must be affirmed. Thus, as to the jury

findings of pre-1969 negligence (App. 200a-204a; T.50385-86)

nothing the Court can determine with respect to the preemp-

tion issue can affect Farnan and Della Vecchia’s judgments,

rendering this matter particularly uncertworthy and an

inappropriate vehicle for asserting conflict. In contrast to

other class members whose cases have not been adjudicated,

the final judgments of Farnan and Della Vecchia are also

supported by the fraud and conspiracy findings in Phases I

and II-A that the jury found were a legal cause of damage or

death to the two class representatives. The Florida Supreme

Court's determination that the Phase | fraud and conspiracy

counts are not to be given preclusive effect in future claims of

putative class members, has no impact on the class represen-

tatives’ final judgments that were reinstated by the court.

The fraud and conspiracy counts provide additional non-

preempted claims in support of the two verdicts and judg-

ments. See Cipollone, 505 U.S. at 530-31 and n.28.

Petitioners argue that because of the “massive”

number (700,000) of Florida’s victims (Pet. at 1, 2, 5), and

the magnitude of petitioners’ “wrongdoing |and} miscon-

duct occurring over more than five decades,” (Pet. at 5),

“immediate review is both necessary and efficient [to save

petitioners from] ... vears of delay and expense.” Pet. at

19. After litigating for over thirteen years, petitioners

know that the longer they are able to delay these proceed-

ings, the fewer lawsuits petitioners will ultimately face

due to the tragically high attrition rate of sick smokers,

particularly with a class cut-off date of over one-decade

ago, of November 21, 1996. App. 41a. Petitioners’ alterna-

tive request for a “GVR” (Pet. at 30), is unwarranted and

would serve no purpose other than to further protract the

litigation where absent class members have waited more

than thirteen years for relief.”

“ A GVR was never intended to grant petitioners a second appeal

on preemption, «an issue they did not adequately raise and preserve

‘Continued on following page)

30

After thirteen years of protracted litigation, with over

a dozen appellate proceedings in state and federal courts,

a two-year trial that was subject to full appellate review,

in which petitioners largely prevailed on appeal, and

where legal notice has been disseminated by publication

throughout Florida in 1997 and 2007, “enough is enough.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

SUSAN ROSENBLATT

_ Counsel of Record

STANLEY M. ROSENBLATT

STANLEY M. ROSENBLATT, P.A.

66 W. Flagler St., 12th Floor

Miami, Florida 33130

(305) 374-6131

Counsel for Respondents

before the state supreme court under federal and Florida law. Beck, 369

U.S. at 553; Duest, 555 So.2d at 852; Sag Harbour, 484 So.2d at 1256.

Nor is a GVR appropriate where preemption was addressed by the

district court and also addressed in a sentence by the Florida Supreme

Court, commensurate with petitioners’ fleeting reference to that issue

in one sentence on page forty-nine of a fifty-page brief. And a GVR

makes no sense at all in a case where there are specific pre-July 1, 1969

jury findings of negligence supporting the two judgments so that any

consideration of preemption could not change the ultimate outcome.

The cases cited by petitioners are inapposite. See Lawrence v. Chater,

516 U.S. 163, 174-75 (1996) (GVR would give Court of Appeals opportu-

nity to consider “new interpretation of the Social Security Act”),

Youngblood v. West Virginia, 126 S.Ct. 2188, 2190 (2006) (“Youngblood

clearly presented a federal constitutional Brady claim to the State

Supreme Court [and] ... the dissenting Justices discerned the signifi-

cance of the issue raised”) (emphasis supplied).

* Federal Election Com’n v. Wisconsin Right Tb Life, Inc., 127 S.Ct.

§52, 2672 (2007).