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

* 2

No. 06-1545

IN THE

Supreme Court of the Anited States

R.J. REYNOLDS TOBACCO CO., ET AL.,

Petitioners,

v

HOWARD A. ENGLE, £T AL.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Florida

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

ROBIN S. CONRAD JOHN H. BEISNER

AMAR D. SARWAL (Counsel of Record)

NATIONAL CHAMBER MATTHEW M. SHORS

LITIGATION CENTER, INC. ScoTT M. EDSON

» 1615 H Street, N.W. O’MELVENY & Myers LLP

Washington, D.C. 20062 1625 Eye Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

IN THE

Supreme Court of the Anited States

R.J. REYNOLDS TOBACCO CO., ET AL.,

Petitioners,

V.

HOWARD A. ENGLE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

MOTION FOR LEAVE TO FILE BRIEF OF THE

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA AS AMICUS CURIAE IN SUP-

PORT OF PETITIONERS

The Chamber of Commerce of the United States of

America (the “Chamber’’) hereby moves this Court, pursu-

ant to Rule 37.2, for leave to file the attached bref amicus

curiae in support of the petition for a writ of certiorari in

this case.” Petitioners have consented to the filing of this

brief, and correspondence reflecting petitioners’ consent has

been lodged with the Clerk. Respondents, however, would

not provide consent except on conditions unacceptable to

the Chamber.

The Chamber is the world’s largest federation of busi-

ness companies and associations, with an underlying mem-

" The attached brief addresses only petitioners’ first question pre-

sented. The Chamber also supports review with respect to the second

question.

il

bership of more than three million business and professional

organizations of every size and in every sector and geo-

graphic region of the country. An important function of the

Chamber is to represent the interests of its members by filing

amicus curiae briefs in cases involving issues of national

concern to American business.

The Chamber and its members have a strong interest in

seeking review of the Supreme Court of Florida’s decision in

this matter, which accorded preclusive effect to generic find-

ings of wrongdoing covering an entire industry over a half-

century, under the rubric of “issues” classes. The decision

below threatens the ability of automobile, healthcare, chemi-

cal, and numerous other companies to exercise their due

process rights to defend themselves against potentially bank-

rupting class action and mass tort judgments.

Given the profound effect the decision below will have

on the Chamber’s members absent review, the Chamber re-

quests leave to file an amicus brief in support of petitioners.

Respectfully submitted,

ROBIN S. CONRAD JOHN H. BEISNER

AMAR D. SARWAL (Counsel of Record)

NATIONAL CHAMBER MATTHEW M. SHORS

LITIGATION CENTER, INC. SCOTT M. EDSON

1615 H Street, N.W. O’MELVENY & MYERS LLP

Washington, D.C. 20062 1625 Eye Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

August 15, 2007

iil

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF

OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF PETITIONERG.......... I

SPs Cr Ce 8 sists basins castes canicsp Senssinarnsdnnsgnccnan de iil

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS ...1

STATEMENT ................ aiid aah aseocddeecatinsaaciekubcolaane neckline ]

TEE ssa Sor vuc ba dicbeldiciais See ocak Kuusccaesieechorinbatans 5

I. The Decision Below Will Strain Courts

PRUUTS PEDIC FOO no ivi ceincecnsiecerenandsasevaveneds 5

II. The Petition Presents A Rare Opportunity

For This Court To Provide Much Needed

Guidance On A Growing Issue. ...............:.::ccceseseeeees 7

Ill. The Irregular Procedure Adopted Below

Denies Petitioners The Opportunity

SO ROTI FI ios in ccaccnsccaceaspcnaciccendvnasncnsn 10

A. The Generic Wrongdoing Trial Employed

Below Contravenes Due Process. ................0.005. 10

B. Generic Findings Of Nondescnpt

Wrongdoing Cannot Be Applied

GA SOUUMIDTNE Si BPDINEB inci s cos csdinspcenscis canneracends 14

Re BIN cisscnces ssibbai pecan techn iniie-precheshucetbyceavniacs one eeees 17

iv

TABLE OF AUTHORITIES

Page(s)

CASES

ACandsS, Inc. v. Godwin,

OF Fe Fe Fisch in vednsacconsssisnsadbanceeccasnaicapacnubael 8

Amchem Prods., Inc. v. Windsor,

Ee ee pari nisttapiia icons coesecesiicensncsntnieessnewnsiohicaiia 9

Broussard vy. Meineke Disc. Muffler Shops, Inc.,

Ry Eck eae NY RMS RO Peici cdccinsctnscesensseccescecenesnadesnacis 11

Cain v. Armstrong World Industries,

785 F. Supp. 1448 (S.D. Ala. 1992)...........eesssseeeeeeeeeeees 12

Castano v. Am. Tobacco Co.,

EF Fe ie BO Dave scistewcenasnsccannnacesnbacesdancensuuiienl 6

Cimino v. Raymark Indus., Inc.,

Fae Bs I: BAO TEA: TOK, 1990)... .ncvessceevenseensessonancesonse 8

City of Chicago v. Morales,

BE RE RT ide iciseeschnnncesncitensosessisanastoonsivancansdanies 13

Ex parte Flexible Prods. Co.,

Fee eM BIDE) ceirrevsovesecsevenceresevesonsaeuressetsninnnens 8

Ex parte Monsanto Co.,

FG A PO PRY BIOL) ciesscsivigosscsnssensssceinsonsneensivacesones 8

Gasoline Prods. Co. v. Champlin Ref. Co.,

SE aes PII EE Bicicteinatcesunssiigniwvnivvanscansnmaiestenouencaneaniie 15

Hon v. Stroh Brewery Co.,

Be ae Ae GA alle LOT Diiscsccnisacccnenssinenseevnsinsensasonatuanes 12

Honda Motor Co. v. Oberg,

A PE CB i eisekavsenscosacsienscesornertennapincsegoussnantiall 13

V

TABLE OF AUTHORITIES

(continued)

Page(s)

In re Brooklyn Navy Yard Asbestos Litig.,

OFA Fee OE Ca EPG EDs vssiciscisccexdiosnciecssscnncassensesesdes 11

In re Fibreboard Corp.,

ee ae Fe NAN BOD svnvvesccesescnecancosnnssscysscascoctsanes 11

In re Repetitive Stress Injury Litig.,

SF, Sr MUN Ee COE UPS Pes nvicosssissberndsisesuentssonssnacsonssess 11

In re Rhone-Poulenc Rorer Inc.,

Pe Pe EPR FOE CN AO) scisinsscescvessssecioinssssiocccccscsnenavas 6

Jenkins v. Raymark Indus., Inc.,

TE A FP cco seen sndnsvsroxassnchgnndnsononsnnvsnets 8

Kremer v. Chem. Constr. Corp.,

I her A ES BE ici cin) sivvaccxussheisiaxiasiveassekivdeieassanei ss 10

La Plante v. Am. Honda Motor Co.,

FE Oe Re CE ME 2 PD a vinnie civ ay cenav consensitdysvbasesunanlas 15

Lewis v. Am. Cyanamid Co.,

Fete PT aE PO Rais nsesessis ntccsencasndsedesssnveghnsaceedsnpens 16

Logan v. Zimmerman Brush Co.,

OO aoa cscnss Sov schcccincndensssseechonessan seuss 12,14

Malcolm v. Nat'l Gypsum Co.,

FL AAe OO GEE GAN, C995 )asosces sacs. ccvecstnssovsesisssenenscnentencs 12

Ortiz v. Fibreboard Corp.,

te a5 exeson nba ined bssenncnecasssaspwacsveeiasoue 9

Pac. Mui. Life Ins. Co. v. Haslip,

RR AD OBI irah cds veces cls ined coouaseisaviesesosticsunstossngusa 13

Phillips Petroleum Co. v. Shutts,

SN WIE ePID ccicnst'cs Geanorcdndidnsnaaass curevoadibsencriccincens (i 9

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Schad v. Arizona,

SE es I isis bic kcnacnssnnvcnciincoctncesersbsaimgocakeekians 13

Scott v. Am. Tobacco Co., Inc,

949 So. 2d 1266 (La. Ct. App. 2007)..........ccccsscereeesreeeseee 8

State ex rel. Appalachian Power Co. v. MacQueen,

ETD Fae FEI Vs CP icieecevicescvsvessccrssonsanstienvecsenes 8

State ex rel. Mobil Corp. v. Gaughan,

SOD Be AS Os VE. OE) visnissss covsccceseveisesncsseoscevacesseee 8

Strasser v. Transtech Mobile Fleet Serv., Inc.,

613 N.W.2d 142 (Wis. Ct. App. 2000) 0.0... esescessenes 12

Talquin Elec. Coop. v. Amchem Prods. Inc.,

427 So. 2d 1032 (Fla. Dist. Ct. App. 1983) ...........ceceees 12

West v. Caterpillar Tractor Co.,

SIG SO Bs LIT iesitsinscsvcnssvsecavecescossinesesonsszsensaicgs 15

Wilson v. Johns-Manville Sales Corp.,

ET Edd RO as EO. TE ssinisecesavessencccesssenssaceeyssnans 8

OTHER AUTHORITIES

Charles Alan Wright et al.,

Federal Practice and Procedure § 4413 (2002)................ 16

Fairness in Asbestos Compensation Act of 1999:

Hearing on H.R. 1283 Before the House Comm.

on the Judiciary, 106th Cong. 89 (1999) .........cssceseeereeees 7

John H. Beisner et al.,

One Small Step for a County Court...

One Giant Calamity for the National Legal System,

COV. FRE; TO EPA, BD i scsecssisvsiccsunensaavtesnrvenrsieionsnesetion 9

Vil

TABLE OF AUTHORITIES

(continued)

Page(s)

Lester Brickman,

Lawyers’ Ethics and Fiduciary Obligation

in the Brave New World of Aggregative Litigation,

26 Wm. & Mary Envtil. L. &. Pol’y Rev.

ME EN eis Gash ics cea tivscesiis sin Seatoaas ca ehatiiastsxsdenaresenns eens 6

Restatement (Second) of Judgments

ee I i aod ae ssbics Us on sa be vavnn es an euavdecdedwenewewakans 16

Richard O. Faulk et al.,

Building a Better Mousetrap?

A New Approach to Trying Mass Tort Cases,

29: Fok Pech. Rev. 779, FIO 19GB) viv vcsscivcsvesicssvivess 6,7

SE A Be xed a cisliasied ina ndcieny abou toedkimcixroe waren Game 6

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

The Chamber of Commerce of the United States of

America (“the Chamber’) respectfully submits this brief as

amicus curiae in support of petitioners.’

STATEMENT

This case involves a question of exceptional importance

to the business community: whether courts facing class ac-

tions or mass tort proceedings may permissibly conduct “ge-

neric’’ product liability trials and then afford preclusive ef-

fect to generalized findings of wrongful conduct in separate

cases brought by individual plaintiffs with disparate claims.

This case was tried as a class action involving as many as

700,000 current and former smokers asserting various per-

sonal-injury claims against members of the tobacco industry.

The trial involved numerous products and a half-century’s

worth of conduct by many defendants. The trial court justi-

fied its trial plan on the grounds that the jury was capable of

deciding purportedly “common” questions applicable to the

class as a whole. Yet the trial had virtually nothing to do

with conduct “common” to all (or even most) of the 700,000

class members’ claims. The court did not require any of the

evidence it allowed plaintiffs to present to the jury to be

linked to the circumstances of any particular named plaintiff

or absent class member—let alone ensure that the evidence

was relevant to the claims of a// of those class members. A

myth of commonality was instead created on the theory that

all of the claims were “smoking-related,” and that myth was

' Pursuant to Rule 37.6, amicus states that no counsel for a party au-

thored this brief in whole or in part. No person or entity, other than the

Chamber and its members, made a monetary contribution to the prepara-

tion and submission of this brief.

2

supported by including such a wide swath of conduct that

many of the class members could link their claims to some

piece of evidence introduced, even though no single act of

alleged wrongdoing was, or could be, shown to have affected

all or even most of the class members.

At the conclusion of the generic phase, the jury decided

numerous abstract questions, including, for example,

whether the defendants were “negligent.” Faced essentially

with a thumbs-up, thumbs-down vote on a half-century of

conduct by an entire industry (and apparently asked only to

find one, undefined, act of “negligence” per defendant over

the class period), the jury sided with plaintiffs. The interme-

diate appellate court reversed the judgment and ordered the

class decertified. The Supreme Court of Florida (the “Flor-

ida Supreme Court”), however, reinstated much of the judg-

ment by adopting the “pragmatic solution” of prospectively

decertifying the class while conferring upon most of the ge-

neric jury findings “res judicata effect” in any future lawsuit

filed by any class member—rendering the prospective decer-

tification meaningless.

SUMMARY OF ARGUMENT

The Florida Supreme Court’s decision in this case illus-

trates a growing and alarming trend among courts to respond

to mass tort litigation by authorizing “generic” trials involv-

ing disparate claims, thereby permitting a single jury answer-

ing a few abstract questions to resolve whether multiple de-

fendants breached tort duties to hundreds or thousands (or, as

here, hundreds of thousands) of plaintiffs all at the same

time. The court below held that the jury’s comparatively

contentless findings of wrongdoing concerning conduct

spanning an entire industry over more than a half-century

were entitled to preclusive effect as to the claims of as many

as 700,000 personal-injury plaintiffs who could allege only

that different acts by different defendants breached different

tort duties to different people at different times causing dif-

3

ferent injurics. The Florida Supreme Court’s decision de-

parts sharply from traditional norms of fair adjudication, ele-

vates expediency above due process, and places businesses

in peril of being coerced into global settlements—even

where they have no actual liability. The Court should grant

review.

1. Declining to evaluate its decision under traditional

notions of fairness, the court below termed its ruling a “prag-

matic solution.” But even if pragmatism could otherwise

justify such a sharp departure from due process (and it can-

not, as we explain below), the decision below is neither prag-

matic nor a “solution” to any problems associated with mass

tort litigation. On the contrary, it exacerbates those problems

by encouraging attorneys to file marginal or even frivolous

claims in a mass tort proceeding on the hopes that, if enough

claims are filed, it will then become permissible for trial

courts to ignore the traditional] dictates of due process by ap-

proving mass trials involving thousands of plaintiffs and

numerous defendants. The prospect of such mass trials will

effectively require most or all defendants, facing pressure

from the financial markets, to settle all claims, regardless of

merit. The result of the decision below is therefore more

(not less) litigation, as well as an enormous cost to both

American business and the principles of due process of law.

2. Unfortunately, although the procedure employed be-

low represents a sharp departure from traditional notions of

fair adjudication, it is by no means unique in the modern

mass tort era. Recent years have seen a growing trend in

lower courts of adopting “generic” proceedings to resolve

disparate issues related to disparate claims. Because the set-

tlement pressure such proceedings create typically means

that all claims are settled prior to trial, this case presents a

rare opportunity for the Court to provide much needed post-

trial guidance on the constitutional limits imposed on class

actions and mass tort proceedings. This Court has already

4

carefully mapped out those limits in the context of class ac-

tion settlements and class action notices: The time has come

for the Court to articulate the limits due process imposes on

analogous cases that are actually litigated to trial.

3. The importance and frequency of the question pre-

sented is enough to warrant review. But the decision below

is also wildly incorrect on the merits. The “generic” product

liability trial proceeding employed below, involving thou-

sands of plaintiffs asserting inherently individualized and

disparate personal-injury claims, violated due process in at

least two distinct ways. First, it permitted plaintiffs to liti-

gate not on the merits of their own concrete claims, but

through an imaginary “perfect plaintiff’ that had been af-

fected by each alleged act of misconduct, even though no

such person actually exists. Second, by conflating the con-

duct of numerous defendants, it prevented any particular de-

fendant from adequately defending itself.

Although any generic trial involving the disparate claims

of personal-injury plaintiffs raises these concerns, the deci-

sion below brings them into sharp focus. That decision holds

that generic findings, unconnected to the claims of any par-

ticular plaintiff, are to be accorded preclusive effect so that

subsequent plaintiffs can use those findings to show that the

defendants breached tort duties as to them. In affording pre-

clusive effect to certain findings in this case, the Florida Su-

preme Court implicitly rejected the defendants’ argument

that the generic verdict cannot be preclusive in a future law-

suit brought by a particular plaintiff because it is impossible

to know whether the prior jury based its verdict on evidence

having anything to do with any identifiable plaintiff—or, in-

deed, whether the original jury may have exonerated the pe-

titioners as to any particular conduct.

In addition to the arguments made in the petition, the

Florida Supreme Court’s decision to afford preclusive effect

to the jury verdict threatens due process for at least three

5

other, related reasons. First, future juries will have no rea-

soned basis for properly apportioning fault, and will thus be

left to arbitrarily guess at how to do so under Florida's pure

comparative fault regime. Second, by declaring prospec-

tively that preclusive effect will be accorded to generic find-

ings, the court below departed from the traditional practice

of permitting the second court—the court aware of the facts

of both cases—to decide whether the issues of the second

case were decided in the first case. In so doing, the court

sought to ensure that facts will be established by estoppel

without any case-specific inquiry into whether estoppel is

appropriate under a concrete set of facts. Third, because the

Florida Supreme Court recognized that the case was not

fairly tried as a class action, decertifying the class also

should have led to vacating the verdict. Instead, the court

adopted a course that is functionally indistinguishable from

approving class certification.

ARGUMENT

As the petition explains, the generic product liability pro-

ceeding adopted below—both in itself and as applied pro-

spectively to future lawsuits—sharply deviates from tradi-

tional modes of fair adjudication and deprives petitioners of

their due process nght to fairly defend themselves. The

Court should take this opportunity to provide much needed

guidance regarding the due process limits of generic product

liability trials. ‘

I. THE DECISION BELOW WILL STRAIN

COURTS AND HARM BUSINESSES.

The decision below relies on the premise that a “prag-

matic” solution was needed to the problem of tobacco litiga-

tion in Florida state courts. As we explain below, that is not

the proper benchmark when fundamental constitutional

rights are at stake. But even if it were, the court’s pragma-

tism is fundamentally misguided. Far from solving the prob-

lems associated with mass-tort litigation, the decision below

6

is an invitation to abuse. More lawsuits, more procedural

shortcuts, and more harms to American businesses inevitably

flow from the decision below.” In particular, the decision

below ensures that lawyers will have incentives to file merit-

less claims—indeed, even potentially to create meritless

mass tort proceedings—in order to overrun a court system,

thereby justifying a “pragmatic” mass trial deciding in one

fell swoop the liability of an entire industry with respect to

thousands of claimants.

It is now well understood that the stakes involved when

mass litigation is consolidated for joint resolution at trial

place defendants under intense pressure to settle even base-

less claims. See, e.g., Castano v. Am. Tobacco Co., 84 F.3d

734, 746 (Sth Cir. 1996) (“The risk of facing an all-or-

nothing verdict presents too high a risk, even when the prob-

ability of an adverse judgment is low.”); Jn re Rhone-

Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir. 1995) (Pos-

ner, J.) (recognizing that applying adverse “generic liability”

verdict as to all plaintiffs would require defendant to settle

all outstanding claims, even though defendant had previously

won twelve of thirteen individual lawsuits); Fed. R. Civ. P.

23 advisory committee notes (“An order granting certifica-

tion [of a class] . . . may force a defendant to settle rather

than incur the costs of defending a class action and run the

risk of potentially ruinous liability.”); Lester Brickman,

Lawyers’ Ethics and Fiduciary Obligation in the Brave New

World of Aggregative Litigation, 26 Wm. & Mary Envti. L.

&. Pol’y Rev. 243, 252 (2001) (“the aggregation of claims

often pressures a defendant or defendants to settle claims ir-

respective of their merits”); Richard O. Faulk et al., Building

a Better Mousetrap? A New Approach to Trying Mass Tort

? Although the court purported to limits its “pragmatic” solution to

the “unique” “procedural posture” of the case below (see Pet. App. at

30a-31a), no reasoning in the decision below cabins its effects to tobacco

litigation alone.

7

Cases, 29 Tex. Tech L. Rev. 779, 790 (1998) (same).

The consolidation of claims against multiple defendants

only compounds that pressure by creating a “rush to settle”

through “a classic prisoners’ dilemma{.] Although defen-

dants realize that they should bargain as a group with plain-

tiffs’ counsel, each defendant also understands that it can

gain an advantage by settling early, and that it will be disad-

vantaged if others settle first (the sucker’s payoff).” See

Fairness in Asbestos Compensation Act of 1999: Hearing on

H.R. 1283 Before the House Comm. on the Judiciary, 106th

Cong. 89, 99 (prepared statement of William N. Eskridge,

Jr., Professor, Yale Law School).

Plaintiffs’ lawyers, well aware of the phenomenon just

explained, will read the decision below to hold that every

new claim added to a mass proceeding makes the prospect of

a generic trial not only more risky for the defendants, but

also more attractive to a court. As these lawyers will recog-

nize, the combination of vastly increased liability exposure

and diminishing rights will often overwhelm a defendant into

settling all claims asserted against it. Claims that could

never survive on their own are thus carnmed along by their

parasitic attachment to generic product liability proceedings.

The result is more lawsuits, more judicial costs, and more

extorted settlements, straining the courts and unsettling

American business. Given the importance of the question

presented, the Court should grant review.

Il. THE PETITION PRESENTS A RARE OPPOR-

TUNITY FOR THIS COURT TO PROVIDE

MUCH NEEDED GUIDANCE ON A GROWING

ISSUE.

1. Unfortunately, the decision below is not the only re-

cent example of a trial court adopting a “generic” product

liability trial as a “pragmatic solution” to a class action or

other mass tort proceeding. Rather, there is a growing trend

to attempt mass tort aggregation through generic tnal pro-

8

ceedings involving disparate claims related to similar prod-

ucts. See, e.g., Scott v. Am. Tobacco Co., Inc, 949 So. 2d

1266 (La. Ct. App. 2007) (smokers’ class action); Ex parte

Flexible Prods. Co., 915 So. 2d 34 (Ala. 2005) (approving

plan for generic product liability trial in product liability liti-

gation); State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d

419 (W. Va. 2002) (approving consolidation of thousands of

asbestos plaintiffs for generic product liability determina-

tions); Ex parte Monsanto Co., 794 So. 2d 350, 357 (Ala.

2001) (finding “no abuse of discretion [and] no basis for is-

suing a writ of mandamus” where trial judge intended to

“hear, at one proceeding, the evidence relating to liability

issues as to all claims and then, if the liability issue was de-

cided adversely to Monsanto, to try each individual plain-

tiffs causation and damages issues”); State ex rel. Appala-

chian Power Co. v. MacQueen, 479 S.E.2d 300, 305 (W. Va.

1996) (approving plan to consolidate thousands of asbestos

claims into two-phase trial where first phase would adjudi-

cate general negligence questions); ACandS, Inc. v. Godwin,

667 A.2d 116, 120 (Md. 1995) (approving phased tnal plan

that determined. whether each of six asbestos defendants

“was negligent and/or strictly liable” and applied finding to

individual claims by 8,549 plaintiffs); Jenkins v. Raymark

Indus., Inc., 782 F.2d 468, 475 (Sth Cir. 1986) (approving

class trial of thousands of asbestos cases to determine com-

mon issues regarding state of the art defense); Cimino v.

Raymark Indus., Inc., 739 F. Supp. 328, 330 (E.D. Tex.

1990) (approving class trial against numerous defendants on

issues of product defectiveness and punitive damages); Wil-

son v. Johns-Manville Sales Corp., 107 F.R.D. 250, 253

(S.D. Tex. 1985) (approving consolidated trial of “50 pend-

ing asbestos cases by conducting a single consolidated trial

on the issues of product defectiveness and punitive dam-

ages’’).

Reported decisions, moreover, do not remotely tell the

whole story; aggregated proceedings that induce global set-

9

tlements are far more often unreported and, frequently, never

appealed. See generally John H. Beisner et al., One Small

Step for a County Court... One Giant Calamity for the Na-

tional Legal System, Civ. Just. Rep. (Apr. 2003) (discussing

nationwide trend of aggregating claims of unrelated plaintiffs

into mass actions). If this Court denies certiorari, for exam-

ple, petitioners will be forced to return to the trial courts in

Florida, where they will face up to 700,000 claimants armed

with generalized findings that the petitioners engaged in mal-

feasance. The pressure will be immense to settle before that

army of claimants is unleashed.° Under these circumstances,

the Court’s immediate review is not only appropriate, it is

necessary.

2. Without question, the explosion of mass torts in re-

cent decades has strained America’s courts. Facing hundreds

or thousands of claims involving the same or similar prod-

ucts, courts have experimented with different litigation mod-

els. Ultimately, however, those experiments must pass the

test of fundamental fairness. This Court has held consis-

tently that the burdens of aggregate litigation do not alter the

requirement of individual justice. See Ortiz v. Fibreboard

Corp., 527 U.S. 815, 816-17 (1999) (reversing certification

of settlement class, in part, due to conflict among class

members that precluded adequate representation); Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 625-28 (1997) (same);

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985)

(constitutional choice-of-law calculus not altered by diffi-

culty of adjudicating large number of cases). Nevertheless,

the Court has not applied those principles to a litigated class

action or a mass tort proceeding. This case presents an ideal

vehicle for doing so. The Court should grant review.

* Alternatively, if petitioners decide to litigate those claims, then the

courts will be saddled with thousands of lawsuits, each of which will be

vulnerable to a future ruling by this Court invalidating the generic liabil-

ity proceeding. (See Pet. at 18-19.)

10

Il, THE IRREGULAR PROCEDURE ADOPTED

BELOW DENIES PETITIONERS THE OP-

PORTUNITY TO DEFEND THEMSELVES.

The Florida Supreme Court adopted two unusual proce-

dures, each of which deprived petitioners of their due proc-

ess rights. First, the court blessed a plaintiff-free, generic

product liability proceeding in which individual defendants

were put to task for the conduct of their entire industry over

the course of a half-century. Second, the court permitted

subsequent plaintiffs to rely on generic misconduct findings,

the bases of which can only guessed at, to establish that each

of the petitioners breached duties and committed wrongs as

to them. Both of these procedures stripped petitioners of the

opportunity to fairly defend themselves.

A. The Generic Wrongdoing Trial aisemeaeall

Below Contravenes Due Process.

The generic product liability trial approved below vio-

lates petitioners’ due process rights for at least two reasons.*

1. First, the sprawling proceeding permitted plaintiffs to

piece together a fictitious “perfect plaintiff’ who was ex-

posed to both every product and every instance of “mislead-

ing” conduct. Evidence was admitted in the generic pro-

ceeding without any showing that it could be linked to the

circumstances of any particular class member—let alone all

class members. Nor did the trial court even require the evi-

dence to be linked to the facts of the named plaintiffs’ cases.

Each class member’s allegation that he or she sustained a

particular injury from smoking a specific type of cigarettes

at a discrete period of time was thus lost in the shuffle. In-

* The constitutionality of the trial procedures is necessarily linked to

the Florida Supreme Court’s preclusion ruling because, as this Court has

recognized, a “State may not grant preclusive effect in its own courts to a

constitutionally infirm judgment.” Kremer v. Chem. Constr. Corp., 456

US. 461, 482 (1982).

ll

stead, the jury was presented with a Frankenstein’s plaintiff

who saw every allegedly misleading advertisement, smoked

every brand of cigarettes over the entire class period, and

sustained every imaginable injury, but was nonetheless un-

aware that cigarette smoking might carry any potential side

effects.

As the Fourth Circuit has aptly observed, plaintiffs in

such an unbounded proceeding

enjoy[] the practical advantage of being able to liti-

gate not on behalf of themselves but on behalf of a

“perfect plaintiff’ pieced together for litigation.

Plaintiffs [are] allowed to draw on the most dramatic

alleged misrepresentations . . . with no proof that

those “misrepresentations” reached them. And plain-

tiffs [are] allowed to stitch together the strongest . . .

case based on language from various [documents],

with no necessary connection to their own . . . rights.

Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d

331, 344 (4th Cir. 1998).

Due process simply does not permit litigation through

imaginary surrogates; it instead mandates that each claim be

evaluated on the actual underlying facts. See, e.g., In re Fi-

breboard Corp., 893 F.2d 706, 710-11 (Sth Cir. 1990) (rec-

ognizing due process limits on allowing fictional litigation to

substitute for actually litigating each claim). As the Second

Circuit has explained, “[t]he systemic urge to aggregate liti-

gation must not be allowed to trump our dedication to indi-

vidual justice, and we must take care that each individual

plaintiffs—and defendant’s--cause not be lost in the

shadow of a towering mass litigation.” /n re Brooklyn Navy

Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992); see

also In re Repetitive Stress Injury Litig., 11 F.3d 368, 373

(2d Cir. 1993) (“considerations of convenience and economy

must yield to a paramount concern for a fair and impartial

trial” (internal quotation marks omitted)); Malcolm v. Nat'l

12

Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993) (same).°

2. At the same time, by permitting plaintiffs to try their

cases against multiple defendants based on evidence com-

mon to no one, the proceeding became so large and confus-

ing that it was impossible for any defendant to present a

meaningful defense. Evidence inadmissible to one defendant

was admitted as to others. See Cain v. Armstrong World In-

dustries, 785 F. Supp. 1448, 1457 (S.D. Ala. 1992) (“As the

evidence unfolded in this case, it became more and more ob-

vious to this Court that a process had been unleashed that left

the jury the impossible task of being able to carefully sort out

and distinguish the facts and law of thirteen plaintiffs’ cases

that varied greatly in so many critical aspects. In the final

analysis, the Court is convinced that the defendants did not

receive a fair trial.”). The complexity, length, and scope of

the proceeding precluded the jury from sorting through the

evidence and various defenses, and tailoring a verdict to each

party’s culpability. See Logan v. Zimmerman Brush Co.,

455 U.S. 422, 433 (1982) (due process guarantees “the ag-

grieved party the opportunity to present his case and have its

merits fairly judged”). Gearing the trial to determine the col-

* Similarly, the decision below caused a procedural revision of sub-

stantive law by replacing the plaintiff's burden to show that the defendant

failed to adequately warn him or her with an inquiry into whether the

defendant adequately warned an imaginary plaintiff not before the court.

See Talquin Elec. Coop. v. Amchem Prods. Inc., 427 So. 2d 1032, 1033

(Fla. Dist. Ct. App. 1983) (“The [generic] adequacy of the label is imma-

terial . . . [where] a plaintiff is in fact warned by the label.”); see also,

e.g. Hon v. Stroh Brewery Co., 835 F.2d 510, 513 (3d Cir. 1987) (apply-

ing Pennsylvania law) (“If the product’s risks were known or should

have been known to the user, liability cannot be imposed upon the manu-

facturer merely because the manufacturer allegedly has failed to warn of

that propensity.” (internal quotation marks and alteration omitted));

Strasser v. Transtech Mobile Fleet Serv., Inc., 613 N.W.2d 142, 155

(Wis. Ct. App. 2000) (“In the circumstances of this case,” where plaintiff

knew of relevant danger, “Transtech’s failure to warn Strasser about the

absence of safety treads in the new ladders was not negligence.”).

13

lective liability of all the defendants over more than fifty

years effectively barred any particular petitioner from ade-

quately defending itself. °

3. For all of these reasons, the generic liability trial in-

volving the disparate claims of hundreds of thousands of

plaintiffs lacked any resemblance to the adversarial testing

that stands as the hallmark of fairness in Anglo-American

law, belonging instead to the inquisitorial system of conti-

nental Europe. “As this Court has stated from its first due

process cases, traditional practice provides a touchstone for

constitutional analysis.” Honda Motor Co. v. Oberg, 512

U.S. 415, 430 (1994). The Court has mandated that state

civil trials operate “according to the settled course of judicial

proceedings.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1,

30 (1991); see also Schad v. Arizona, 501 U.S. 624, 650

(1991) (Scalia, J., concurring in part and concurring in the

judgment) (“It is precisely the historical practices that define

what is ‘due.’’’). Allowing a single jury to determine that an

industry of defendants engaged in “misconduct” for fifty

* A related problem is that the industry-wide trial conducted below,

in which a single jury decided abstract questions about the entire indus-

try, blurred substantive standards to the point of unconstitutional vague-

ness. The generic trials open-ended nature necessarily caused it to dete-

riorate from an inquiry into whether a specific defendant breached a tort

duty to a specific plaintiff (or even a set of identically situated plaintiffs)

into a referendum on an entire industry’s conduct over fifty years. In

answering generalized yes-or-no questions based on that proceeding, the

jury was left little option but to opine on whether the industry was

“good” or “bad” overall. It is difficult, if not impossible, to discern how

the defendants were to structure their conduct in advance so as to avoid

the guilt-by-association findings of wrongdoing that necessarily resulted

from the generic proceeding, and the substantive tort standards effec-

tively applicd in the proceeding thus lacked the constitutionally-

mandated discernable line distinguishing permissible and impermissible

conduct. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 56 (1999)

(due process mandates that state provide “the kind of notice that will en-

able ordinary people to understand what conduct it prohibits”).

ig

years—without any requirement to connect that misconduct

to a specific plaintiff—is simply contrary to law. Courts,

state or federal, are not free to adopt such profound distor-

tions of the processes of civil justice. See, e.g., Logan, 455

U.S. at 432 (“because minimum procedural requirements

[are] a matter of federal law, they are not diminished by the

fact that the State may have specified its own procedures that

it may deem adequate”).’

B. Generic Findings Of Nondescript Wrong-

doing Cannot Be Applied In Subsequent

Lawsuits.

As the petitioners explain, generic findings of wrongdo-

ing are by definition nondescript, and due process does not

permit such findings to be given preclusive effect in future

litigation brought by specific plaintiffs. (See Pet. at 12-18.)

In addition to the arguments made in the petition, the court’s

decision to afford preclusive effect to the jury’s decision is at

odds with due process for three additional but related rea-

sons.

First, the court below held that future juries may use the

generic liability findings to apportion fault, as required under

Florida’s pure comparative negligence regime. (See Pet. at

’ That is not to suggest that consolidation for generic wrongdoing

determinations is never appropriate. A proceeding designed to deter-

mine, for instance, whether a single plane crash that killed each plain-

tiff's decedent was caused by a single defective bolt manufactured by the

defendant, or whether a specific batch of allegedly tainted medicine in-

gested by several plaintiffs contained an adulterant when it left the de-

fendant’s factory, would not raise the same due process problems as the

proceeding below. The infirmity here arises because the class members’

claims stem from different alleged acts of wrongdoing by different peo-

ple in different places at different times.

* As explained above, the fact that the generic proceeding did not re-

sult in a constitutionally valid verdict also precludes the application of

collateral estoppel. See supra at 10-14; see also supra at 10 n.4.

15

App. 27a.) See also West v. Caterpillar Tractor Co., 336 So.

2d 80, 90 (Fla. 1976) (recognizing that Florida’s pure com-

parative fault regime requires apportioning liability under

ordinary causation principles). Other than guessing, how-

ever, it is impossible for future juries to allocate responsibil-

ity in individual cases based on the generic findings another

jury made when assessing the conduct of an entire industry

over the course of fifty years. For example, the prior jury

found:

e “that the defendants placed cigarettes on the market

that were defective and unreasonably dangerous’,

e “that the defendants concealed or omitted material

information not otherwise known or available know-

ing that the material was false or misleading or

failed to disclose a material fact concerning the

health effects or addictive nature of smoking ciga-

rettes or both’; and

e “that all the defendants are negligent.”

(Pet. App. at 44a (emphasis added).) The Florida Supreme

Court did not even attempt to explain how a second jury can

possibly allocate fault rationally between a particular plain-

tiff and one of the:petitioners based on those generic findings

(which fail to answer important questions such as what ciga-

rettes were “defective,” or what act by each defendant was

“negligent’). See Gasoline Prods. Co. vy. Champlin Ref. Co.,

283 U.S. 494, 500 (1931) (recognizing that “interwoven”

issues “cannot be submitted to the jury independently . . .

without confusion and uncertainty, which would amount to a

denial of a fair trial’); see also La Plante v. Am. {fonda Mo-

tor Co., 27 F.3d 731, 738 (1st Cir. 1994) (“A new tnal may

not... . be limited to fewer than all the issues unless it clearly

appears that the issues to be retried are so distinct and sepa-

rable from the other issues that a trial of those issues alone

may be had without injustice.”); Lewis v. Am. Cyanamid Co.,

16

715 A.2d 967, 975 (N.J. 1998) (“Because the issues of plain-

tiff’s comparative negligence and defendants’ liability inter-

twine, it would be inappropriate to remand one without the

other.”).

Second, the Florida Supreme Court’s prospective ruling

that the findings will have preclusive effect represents a de-

parture from traditional practice, and seems to oblige trial

courts to accord the generic findings preclusive effect with-

out ever. inquiring into whether preclusion is appropriate on

the facts of a given case. Ordinarily, the second court—

which knows both what the earlier finding was and how it is

to be applied in the later case—determines whether to apply

collateral estoppel in a given case. See Charles Alan Wright

et al., Federal Practice and Procedure § 4413 (2002) (noting

“general rule that a court cannot dictate preclusion conse-

quences at the time of deciding a first action,” except where

it seeks to limit preclusive effect); cf, e.g., Restatement

(Second) of Judgments § 27 cmt. c (1982) (discussing con-

text-specific factors courts should use in comparing issue to

be precluded to issue previously adjudicated in order to de-

termine whether issues are materially identical). When it

decreed that the generic findings will be accorded collateral

estoppel effect, by contrast, the court below had (at most)

only half of the relevant information. Without any way to

predict precisely the concrete factual circumstances in which

future plaintiffs will seek to apply the generic findings, the

court below was ill-positioned to determine whether preclu-

sion will be appropriate in any specific future case.

Third, although the court below prospectively decertified

the class, its decision to retain most of the generic findings

and allow former class members to rely on them renders that

decertification decision meaningless. If the court had rein-

stated the certification order, then “generic liability” would

have been established by all class members against all peti-

tioners, and individual trials on causation, damages, and

17

comparative fault would still have been required in order to

resolve the outstanding claims by the unnamed class mem-

bers. There is therefore no difference in effect between that

outcome and the decision below. Under the court’s decision,

too, “generic liability” is established by all (former) class

members against all petitioners, and individual trials on cau-

sation, damages, and comparative fault are required to re-

solve the outstanding claims by the unnamed (former) class

members.

Having decided that continued class treatment was im-

proper, the Florida Supreme Court was not free to ignore the

logical consequences of that decision. The court should have

recognized instead that, once the class was decertified, the

generic “‘verdict”—and the evidence upon which it was

based—could not stand. Instead, the court compounded that

error by holding that the verdict would not only stand but

could also be used by thousands of claimants in future trials.

* * *

In sum, this case provides an excellent vehicle for resolv-

ing a recurring issue important to both lower courts and busi-

nesses facing mass tort litigation. The Court below dis-

pensed with traditional notions of fair adjudication by sacn-

ficing petitioners’ due process rights on the alter of pragma-

tism. Certiorari is warranted.

CONCLUSION

For the foregoing reasons, and for the reasons stated by

petitioners, the Court should grant the Petition for a Wnit of

Certiorari.

18

Respectfully submitted,

ROBIN S. CONRAD JOHN H. BEISNER

AMAR D. SARWAL (Counsel of Record)

NATIONAL CHAMBER MATTHEW M. SHORS

LITIGATION CENTER, INC. Scott M. EDSON

1615 H Street, N.W. O’MELVENY & MYERS LLP

Washington, D.C. 20062 1625 Eye Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

August 15, 2007