Petition for Writ of Certiorari — R. J. Reynolds Tobacco Co. v. Kenyon

03-687 Nov 6~- 2003

IN LHE

Supreme Court of the Anited States

R.J. REYNOLDS TOBACCO Co.,

Petitioner,

V.

FLORENCE KENYON, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF

FLOYD J. KENYON, SR.,

Respondent.

On Petition for a Writ of Certiorari to the

Florida Second District Court of Appeal

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN H. HILL, III ROBERT H. KLONOFF

HILL, WARD & HENDERSON (Counsel of Record)

101 East Kennedy Blvd. STEPHANIE E. PARKER

Suite 3700 TRACI L. LOVITT

Tampa, FL 33602 JONES DAY |

(813) 221-3900 51 Louisiana Ave., N.W.

Washington, DC 20001

Of Counsel (202) 879-3939

Counsel fo; Petitioner

QUESTION PRESENTED

Whether state law permitting a jury to impose liability on

tobacco companies for the mere manufacture and sale of

cigarettes, without more, conflicts with and is preempted by

congressional policy allowing the production and sale of

cigarettes in the United States.

il

PARTIES TO THE PROCEEDING

Petitioner is R.J. Reynolds Tobacco Company. R.J.

Reynolds Tobacco Company is a wholly owned subsidiary

of R.J. Reynolds Tobacco Holdings, Inc., formerly known as

RJR Nabisco, Inc. On December 11, 2000, R.J. Reynolds

Tobacco Holdings, Inc. acquired Nabisco Group Holdings

Corp. now a wholly-owned subsidiary of R.J. Reynolds

Tobacco Holdings, Inc., renamed RJR Acquisition Corp.

Since June 15, 1999, R.J. Reynolds Tobacco Holdings, Inc.

has been a publicly-owned corporation. Before then, RJR

Nabisco, Inc. was a wholly owned subsidiary -of RJR

Nabisco Holdings Corp., a publicly owned corporation. RJR

Nabisco Holdings Corp. is now Nabisco Group Holdings

Corp.. and since June 14, 1999, has not held a direct or

indirect ownership interest in R.J. Reynolds Tobacco

Holdings, Inc. or R.J. Reynolds Tobacco Company.

Fidelity Management & Research and Capital Research

and Management each own more than 10 percent of the

publicly traded stock of R.J. Reynolds Tobacco Holdings,

Inc.

R.J. Reynolds Tobacco Holdings, Inc. recently announced

that it is seeking a potential corporate transaction with

another tobacco holdings company. A copy of its press

release is included as part of the appendix to this petition.

See Pet. App. 63a-69a.

Respondent is Florence Kenyon acting individually and as

a representative of the estate of Floyd J. Kenyon, Sr.

———

ill

TABLE OF CONTENTS

Page”

QUESTION PRESENTED .u....occcccccccccccccscsssseceeeeeeeeecccccc i

PARTIES TO THE PROCEEDING .oeeeccccccscsssessesesssss il

TABLE OF AUTHORITIES .o.....ccccccccccssssssssssssssssssssc Iv

WPI III so nnsessvssesessoncscesccsocscscscec.. l

HR API asec esnsssvarsssyiascnsnny soxtssvesesesescsocce.s..c ne l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .ooeeecsccssssscsccscssssssssessesessssss..... Z

«cp snap ne 2

REASONS FOR GRANTING THE PIN tethisesiinesborcisects 9

I. THE FLORIDA SECOND DISTRICT

COURT OF APPEAL’S DECISION

CONFLICTS DIRECTLY WITH

CONGRESSIONAL POLICY AND

THIS COURT’S JURISPRUDENCE... 9

Il. THE FLORIDA SECOND DISTRICT

COURT OF APPEAL’S DECISION IS

INCONSISTENT WITH THE DECISIONS

OF EVERY OTHER COURT THAT HAS

CONSIDERED THE PREEMPTION ISSUE........ 16

Ill. THIS COURT’S IMMEDIATE REVIEW

OF THE IMPORTANT QUESTION

PRESENTED IS NECESSARY TO

PROTECT FEDERAL POLICY

AND SUPREME COURT PRECEDENT... 21

I hacer vnrtmnnsinurvsxsinisassorcsssivecusasoccostice,.. 26

IV

TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Slater,

SR ee aa cahconin casas urcia esMaaichd aanecnncecatonmaneiaced 24

Arkansas v. Sullivan, 532 U.S. 769 (2001)... eee cece ewes 24

Bibles v. Oregon Natural Desert Ass'n,

i eM Sk, sg SER eM ee Nee NRE ne oe 24

Bunkley v. Florida, 123 S. Ct. 2020 (2003) ....................... 25

Beran Ve. Cane, SIG U.S, 1.5.2 CEG IG) cvcvsicsereeticceincvensscsasntes A

Calderon v. Coleman, 525 U.S. 141 (1998)... eee 24

Calderon v. Moore, 518 U.S. 149 (1996)... eee eee eee ee 24

Carter v. Brown & Williamson Tobacco Corp., -

778 So. 2d 932 (Fla. 2000),

cert. denied, 533 U.S. FSO (2001).......sesssesorseecesssenveeeDy 1S

Cent. State Univ. v. Am. Ass’n of Univ. Professors,

Cent. State Univ. Chapter, 526 U.S. 124 (1999).....24, 25

Choate v. Champion Home Builders Co., -

Bk Fe FC Ee BO riisinticeclenknsisdnnidenene 17

Cipollone v. Liggett Group, Inc.,

Pe es, PE Pins isi stecrcdsasenatuapecapuneansibisens 13, 14, 21

Citizens Bank v. Alafabco, Inc.,

Be ee 0k. eT CN isistentiincntmmnmiancrel Ne ae

City of Los Angeles v. David, 123 S. Ct. 1895 (2003)....... 24

City of Monroe v. United States, 522 U.S. 34 (1997)........ 24

Clark County Sch. Dist. v. Breeden,

Ae a, CE EE ica patetnssacatpolnneniacsaivoreenas

Cruz-Vargas v. R.J. Reynolds Tobacco Co., ”

218 F. Supp. 2d 109 (D.P.R. 2002),

aff'd on other grounds, No. 02-2688,

2003 WL 22434631 (Ist Cir. Oct. 28, 2003)...........20, 21

Dalton v. Little Rock Family Planning Servs.,

Fh EF ie cicssnscerantckinipuisnniancesnenmitiphineriociomnsdh 24

24, 25

Vv

TABLE OF AUTHORITIES (con’t)

Page

Delo v. Lashley, 507 U.S. 272 Se eS 25

Dobbs v. Zant, 506 U.S. 357 (1993) vovecccccsccssesecsesececccc., 25

DuJack v. Brown & Williamson Tobacco Corp.,

No. X07-00728225-S, slip op.

(Conn. Super. Ct. Nov. 13, 2001) veeccccccccscsssescceeeeeeeccec., 21

Duncan vy. Henry, 513 U.S. 364 Pe icachciicanbisindimices 24

Early v. Packer, 537 U.S. 3 Ce Ee ee: 24

El Vocero de Puerto Rico (Caribbean Int’]

News Corp.) v. Puerto Rico, 508 U.S. 147 ) ) ae 24

ENSCO, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986)....... 18

FDA v. Brown & Williamson Tobacco Corp.,

ILI UWS. 120 (2000) .ecosccicececescesssnsassaverseresseeesezececsce Passim

Fiore v. White, 531 U.S. 225 P| ORT Tee R 24, 25

Fisher v. Ford Motor Co..,

224 F.3d 570 (6th Cir. 2000) .0.cececcsccscccssesseoseoeeeseccccce.n. 16

Flippo v. West Virginia, 528 U.S. 11 ( EMR 24

Florida v. Rodriguez, 469 U.S. 1 (1984)... 23, 26

Freightliner Corp. v. Myrick, 514 U.S. 280 ti +) eee 14

Geier v. Am. Honda Motor Co..

REF OS. OG CY a icsscssnsivecersshsndassivanarsasccnceeil Passim

Goeke v. Branch, 514 U.S. 115 ER eiciiescucee aca 24

Great Dane Trailers, Inc. v. Estate of Wells,

52 S.W.3d 737 (Tex. 2001 )...c..cececsssssessesssssescecceceseessecs.. 17

Greene v. Georgia, 519 U.S, 145 CRS vccniontetsiaencteaotiel 24

Griffith v. General Motors Corp.,

303 F.3d 1276 (11th Cir. 2002)

cert. denied, 123 S. Ct. 1953 OF: , ETS ey Mc 18, 19

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

No. 00-1061, slip op.

(Fla. 13th Jud. Cir. Oct. 1, 2003) c.eccccccccccccsesseeeeseoceccec.n. 22

~_

Vi

TABLE OF AUTHORITIES (con’t)

Page

Hermes Consol., Inc. v. People,

SOD P26 1 SGT CW VO. FSB hss ccinicieriteterrimtesetces 17

Hetzel v. Prince William County, Virginia,

$23 U.S. ZG CTR iscsisenseres Seeiadlaxbusssdiaitaianonnaamaia 24

Fiorn v. Bankes, S5G6.1).S. 266 (27) vsissvinsssasiecssensncesssecesess 24

Hurley v. Motor Coach Indus., Inc.,

222 FO ST TP Ga, I iit 17,19

INS v. Verma, S57 CBZ CGE) vaxensxsnecteinsnancensastvacceness 24

Insolia v. Philip Morris Inc.,

128 F. Supp. 2d 1220 (W.D. Wisc. 2000)................ eee 19

Jacksonville v. Ark. Dep’t of Pollution

Control & Ecology, 824 S.W.2d 840 (Ark. 1992)......... 18

James v. Mazda Motor Corp.,

roee Me ERE T EL: Co ae. | Sean 16, 17, 19

Jenkins v. Florida, 385 So. 2d 1356 (Fla. 1980)...... lL, 22,20

Kaupp v. Texas, 123 S. Ct. 1843 (2003)........... eee 25, 26

Kirk v. Louisiana, 536 U.S. 635 (2002).................24, 25, 26

Lambert v. Wicklund, 520 U.S. 292 (1997)......cceceecceceeeeeee 24

Leavitt v. Jane 1. 518 US. 157 (UGGS vcncvssesessshssecsenavsneess 24

Major League Baseball Players Ass'n v. Garvey, |

S32 US. Fe CE ikea

Maryland v. Baltimore Radio Show, Inc.,

SIO US. Dar 1a iescsnieacinsiroiiaciansercmaannian 15

Maryland v. Dyson, 527 U.S. 465 (1999) oo... eeeeeeeees 24, 26

Mazurek v. Armstrong, 520 U.S. 968 (1997) .......ceeeeeeeeeees 24

Mitchell v. Esparza,

No. 02-1369, slip op. (Nov. 3, 2003) ............sseeeeeeee 24, 25

New Mexico, ex rel. Ortiz v. Reed,

S26 US. 857 Circ eos 24

i

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8

a

H

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TABLE OF AUTHORITIES (con’t)

Page

Newsweek, Inc. v. Fla. Dep’t Revenue.

Db US, GAZ (199B)....ssesesasvsnsnsorncevororsnsvesesvevczessesosese.. 26

Ohio v. Reiner, 532 U.S. 17 ERNII Wicstisaninienchianatbeueeaaecesunion 24

Oxygenated Fuels Ass'n v. Davis,

331 F.3d 665 (9th Cir. 2003) v.oeceecccccccssccceseesesesceceseseccc.. 16

Payton v. New York, 445 U.S. 573 (1980) cecccccccocc----- fa

Pennsylvania v. Labron, 518 U.S. 938 (1996)................... 24

Pounders v. Watson, 521 U.S. 982 (5 | 24

Purkett v. Elem, 514 U.S. 765 (1995) ceccssssssssssssssssssssssesees 24 :

Roberts v. Galen of Va., Inc., 525 U.S. 249 ( i, 24

Rollins Envtl. Servs. of La. v. Iberville Parish :

Policy Jury, 371 So. 2d 1127 (La. 1979) ceccccccccccccc 18 |

Sao Paulo State of Federative Rep. of Braz. v.

Am. Tobacco Co., Inc., 535 U.S. 229 RE ic catecediaaccucs 24

South Dakota Mining Ass’n v. Lawrence County, |

155 F.3d 1605 (8th Cir, 1998) o.oo cccccccecscscscecseccceceseceece, 18

Stansbury v. California, 511 U.S. 318 (1994).................... 24

Stewart v. LaGrand, 526 U.S. 115 EOI cceisicsicuceapdsaseanant 24

Stewart v. Smith, 536 U.S. 856 SI cencindissinaciae aces 24

Texas v. Lesage, 528 U.S. 18 (1999) vecccccsccccsseeeeeeeeeeecccc, 24 |

United States v. Bass, 536 U.S. 862 (2002) ceccecccccccccecoeee.. 24 |

United States v. Coleman, 390 U.S. 599 POPE Wieasicaeiasiael 18

United States v. Jose, 519 U.S. 54 (1996) .eeccccccccccccsssssssve 24

United States v. Nachtigal, 507 U.S. 1 (1993)... 25 |

United States v. Padilla, 508 U.S. 77 (1993) ..cccccsssssssee 25 :

United States v. Robertson, 514 U.S. 669 th | ne 24 .

United States v. Watts, 519 U.S. 148 (1997)...cccssssssssesses0e 24 |

Village of Willowbrook v. Olecho.,

POW US, DGS COOG).sesnsesonssasviesnseunasanvaenassnecesecsesnsauts 25

Vill

TABLE OF AUTHORITIES (con’t)

: Page

Williams v. Florida, 399 U.S. 78 (1970) .......ccccccesssseeeeeeeeeees l

Wood v. Bartholomew, 516 U.S. 1 (1995) ......ceceececeeceeeeeees 24°

Woodford v. Visciotti, 537 U.S. 19 (2002)... cece eeeeeeees 24

Yarborough v. Gentry,

No. 02-1597, slip op. (Oct. 20, 2003).............ccccccssesssees 24

Constitutional and Statutory Provisions

es A TIE, A eg Ro sacecsscnenenanccmisianinedansiecksinlepenibinmemianens 2

FSi eess Oe Ee Peiciccncasevasessioeeiseenessutioionmursnnmeas 3, 10, 21

Fer rts OF Ona sacniaesackeeubinannsesinis eouianenenianinsnaaenas 3, 10, 13

Set as 2 BE Pirin l

See ss Se a chadiadnensavain en cated nesiannaninereniaenaneaamaiial 18

a ac Se IS Decco vtnesnnsnatsneeectnninitnesadaanasictianaicemminies 17

Alcohol and Drug Abuse Amendments of 1983,

PU Ei POG. SOG, G7 TE. FFD vscesesssiscstctenctedsncidensaninioven 2

Alcohol, Drug Abuse, and Mental Heaith Administration

Reorganization Act, ;

Pub. L. No. 102-321, § 202, 106 Stat. 394... 3

Comprehensive Smokeless Tobacco Health Education

Act of 1986,

FMD, Bac INO: DROSS Z, TOD FORE, FO sceevvcccsencscterintensttnsenstlg

Comprehensive Smoking Education Act, i

Pub. L. No. 98-474, 98 Stat. 2200 ................ssssccssssssesceeee 2

Federal Cigarette Labeling and Advertising Act, }

ee 8 fA. < EET

Public Health Cigarette Smoking Act of 1969

FU Bae POO PRS, OF CHU. WET sccesciecinnstseinrcnesnetncenecainniies 2 ,

ft | ee Ne OT mean

a |

= iX

TABLE OF AUTHORITIES (con’t)

Page

Miscellaneous

Stern & Gressman,

SUPREME COURT PRACTICE (8th ed. MEE ee 2 23

PSE BO erating eee 23

ay ~ 2: 5 EE A Te

OPINIONS BELOW

The Florida Second District Court of Appeal’s per curiam

order (Pet. App. 2a) was issued without opinion and is

unreported. The Florida Circuit Court for the Thirteenth

Judicial Circuit’s decision (id. at 3a-4a, 17a, 25a) was also

issued without opinion and is unreported.

JURISDICTION

On May 30, 2003, the Florida Second District Court of

Appeal issued a one-word per curiam order—‘Affirmed”—

rejecting petitioner’s preemption argument. Pet. App. 2a. It

subsequently denied a timely filed petition for rehearing,

rehearing en banc, and issuance of a written opinion on

August 8, 2003. Jd. at la. Because the Florida Supreme

Court does not have jurisdiction under the Florida

Constitution to review per curiam orders of the District

Court of Appeal rendered without opinion, see Jenkins v.

Florida, 385 So. 2d 1356, 1359 (Fla. 1980) (recognizing

limitation on Florida Supreme Court’s jurisdiction), the

intermediate appellate court is the highest state court in

which judgment could have been had. See Williams v.

Florida, 399 U.S. 78, 80 n.5 (1970) (reviewing Florida

District Court of Appeal decision on this ground); Stern &

Gressman, SUPREME COURT PRACTICE 166 & n.48 (8th ed.

2002). Accordingly, this Court has jurisdiction under 28

U.S.C. § 1257(a).!

' On September 5, 2003, Reynolds filed a petition with the Florida

Supreme Court under the court’s all writs jurisdiction seeking an order to

compel the Florida Second District Court of Appeal to publish a written

opinion explaining its reasons for decision. This motion seeks

extraordinary relief and does not alter the fact that the judgment below is

final and unreviewable as a matter of state law and a final disposition by

the highest Florida court within the meaning of 28 U.S.C. §1257(a).

Reynolds will advise the Court of the Florida Supreme Court’s decision

on this petition when one is issued.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution,

U.S. Const. art. VI, cl. 2, provides in pertinent part:

This Constitution, and the-Laws of the United States

which shall be made in Pursuance thereof... shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the contrary notwithstanding.

STATEMENT

This case involves the Florida courts’ blatant disregard of

this Court’s precedent on a recurring federal question of

tremendous importance. In the proceedings below, the

Florida Circuit Court for the Thirteenth Judicial Circuit and

the Second District Court of Appeal, without any explanation

whatsoever, permitted cigarette manufacturers to be held

liable under state tort law for merely manufacturing

cigarettes, because cigarettes are supposedly inherently

dangerous. As this Court has made clear, however, the

manufacture of cigarettes cannot be rendered unlawful or

banned as a matter of federal policy. Accordingly, to the

extent Florida law forces a cigarette manufacturer to cease

cigarette production or face potential tort liability, it conflicts

with a federal objective and is preempted.

1. For nearly forty years, Congress has extensively

regulated tobacco products, enacting six separate pieces of

legislation to address tobacco use and human health since

1965. See Federal Cigarette Labeling and Advertising Act,

Pub. L. No. 89-92, 79 Stat. 282; Public Health Cigarette

Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87;

Alcohol and Drug Abuse Amendments of 1983, Pub. L.

No. 98-24, 97 Stat. 175; Comprehensive Smoking Education

Act, Pub. L. No. 98-474, 98 Stat. 2200; Comprehensive

Smokeless Tobacco Health Education Act of 1986, Pub. L.

Mika a cade Re ek Ghia iin Beta Ds

See ere ee

3

No. 99-252, 100 Stat. 30; Alcohol, Drug Abuse, and Mental

Health Administration Reorganization Act, Pub. L. No. 102-

321, § 202, 106 Stat. 394.

Despite its comprehensive regulation of tobacco products,

Congress has never ordered a ban of cigarette manufacturing

or sought to prohibit the sale of tobacco products in the

United States. To the contrary, Congress has provided in the

United States Code that “[t]he marketing of tobacco

constitutes one of the greatest basic industries of the United

States with ramifying activities which directly affect

interstate and foreign commerce-at every point, and stable

conditions therein are necessary to the general welfare.”

7 U.S.C. § 1311(a). Other sections of the Code expressly

recognize Congress’s decision to protect both public health

and “commerce and the national economy” by requiring that

cigarette manufacturers “adequately infor[m] [consumers]

about any adverse health effects” from tobacco use in lieu of

prohibiting the sale of tobacco products. 15 U.S.C. § 1331.

In light of Congress’s long-standing decision to regulate

tobacco products instead of banning them and its decision to

protect “commerce and the national economy... to the

maximum extent” in connection with tobacco regulation, this

Court has concluded that “Congress .. . has foreclosed the

removal of tobacco products from the market.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 137

(2000). “A ban of tobacco products... would therefore

plainly contradict congressional policy.” Jd. at 138-39.

2. Petitioner RJ. Reynolds Tobacco Company

(“Reynolds”) is the second-largest tobacco manufacturer in

the United States and produces the Winston, Camel, Salem,

and Doral cigarette brands. Respondent is Florence Kenyon,

acting individually and on behalf of the estate of Floyd J.

Kenyon, Sr. (“Kenyon”). Kenyon began smoking in 1942.

Until the early 1970s, Kenyon smoked Camel cigarettes, but

at that time he switched to Salem cigarettes. In 1982,

Kenyon largely quit smoking, and in 1992, he quit smoking

4

altogether. Kenyon was diagnosed with lung cancer in April

2000, and just recently died.

3. In July 2000, Kenyon and his wife, Florence Kenyon,

filed this action against Reynolds, alleging that Kenyon had

contracted lung cancer as a result of smoking Reynolds’

cigarettes. Kenyon sought actual and punitive damages for

negligence and strict liability, and Mrs. Kenyon sought

damages for loss of consortium. Kenyon’s negligence and

strict liability claims were both premised on two theories of

recovery—Reynolds’ failure to warn him of the health risks

of smoking, and Reynolds’ defective design of its cigarettes.

On October 5, 2001, Reynolds moved for partial summary

judgment on preemption grounds. With respect to the failure

to warn claims, Reynolds argued that the Federal Cigarette

Labeling and Advertising Act (“FCLAA”) expressly

preempted Kenyon’s claims based on conduct that occurred

after 1969. In addition, Reynolds argued that the doctrine of

conflict preemption precluded the design defect claims to the

extent they were based so/ely on Reynolds’ manufacture “a

sale of cigarettes, without more.

On October 25, 2001, the Florida Circuit Court for the

Thirteenth Judicial Circuit granted the motion for partial

summary judgment with respect to Kenyon’s post-1969

negligence and strict liability claims for failure to warn. Pet.

App. 8a-9a. On Reynolds’ conflict preemption argument,

however, the circuit court concluded that conflict preemption

was not “a summary judgment issue as much as a burden

issue that’s more appropriately addressed in the jury

instructions.” Id. at 47a.

4. Accordingly, Reynolds submitted the following jury

instruction to prevent the jury from finding for Kenyon on a

preempted claim:

I instruct you that Congress has determined that it is legal

for Reynolds to manufacture, sell and advertise cigarettes

3

notwithstanding the fact that cigarettes may be dangerous

and addictive. Accordingly, I hereby instruct you as a

matter of law that Reynolds cannot be held liable to the

plaintiffs merely because it manufactured, sold, and

advertised the cigarettes that Mr. Kenyon allegedly

smoked.

Pet. App. 49a. Kenyon objected, arguing that the standard

Florida jury instruction on negligence and strict liability was

all Florida law required. Id. at 42a-44a.

The trial court, over Reynolds’ objection (id. at 25a),

rejected Reynolds’ proposed instruction. Although the court

did not publish any opinion on the issue, it explained at the

charging conference that it felt compelled to adopt the

Florida jury instructions that were used in Carter v. Brown &

Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000), cert.

denied, 533 U.S. 950 (2001), which the court believed

implicitly suggested that cigarettes were legal products:

I think that the way the instruction is currently crafted,

articulating the standards under state law by its very

nature recognizes the fact that products manufactured

were manufactured legally by your [client]; and I see no

other way to address that issue other than to give the

instructions as they’re written.

So, I appreciate the argument. I appreciate it down the

road, but I won’t give that instruction. I'll leave the

instruction as it is.

Pet. App. 28a-29a. The court’s resulting erroneous

instruction is reproduced in the appendix to this petition. /d.

at 10a-12a.

Unsurprisingly in light of the court’s summary judgment

decision and _ instruction, Kenyon’s counsel argued

throughout the trial as if Reynolds could be held liable

simply for manufacturing and selling cigarettes. For

example, when cross-examining the only Reynolds’

PE NEAR INET

ee eT ee ee oe ene eee eee

6

employee to testify, Dr. David Townsend, Kenyon’s counsel

repeatedly elicited testimony to establish that no cigarette is

safe:

Q. You said cigarettes are risky, right?

A. Many times.

Q. In fact, I believe you testified there’s no such thing as

a safe cigarette?

A. I didn’t say that yesterday. I have said that many

times, and not just in court.

Q. And—so, Reynolds’ position is, in fact, that there is

no safe cigarette?

A. Absolutely. There is no safe cigarette. What we’ve

tried to do at Reynolds, however, is reduce the risk. But

we'll be the first to tell you there is no safe cigarette—

completely safe.

Pet. App. 37a-38a; see also id. at 34a (asking whether it was

“true that Reynolds cannot demonstrate that the cigarette is

safe for its intended use,” and eliciting the response, “[ijn a

general sense, that is a true statement.”). Kenyon’s counsel

later asked whether a “cigarette is inherently dangerous,” to

which Dr. Townsend replied:

That’s exactly what I testified. There are inherent strong

risks from any cigarette. No cigarette is safe. And :

furthermore there is no way if we develop a cigarette that

completely eliminates the risks . . . there is no way to

definitively prove ... . that the cigarette would be

completely safe. There is no safe cigarette.

ALD a ak

Id.

During the cross-examination of Dr. Townsend, Kenyon’s

counsel further suggested that Reynolds had “chosen”

liability by “choosing” to participate in the tobacco business:

perenne

7

Q: And the products that Reynolds designs and

manufactures are the choice of Reynolds, aren’t they?

A: I don’t understand your question. What do you mean

“choice”?

Q: Well, doesn’t Reynolds choose to make the products it

does?

A. We choose to make a number of products that we then

put on the market. Ultimately, it’s the consumer that

makes the choice about whether they stay on the market.

Id. at 37a. And later during the cross-e€xamination, counsel

indicated that Reynolds could have avoided liability by

manufacturing nicotine gum instead of cigarettes:

Q. Does Reynolds make a pack of 29 pieces of gum that

it sells for a couple of bucks?

A. Of course not.

Id. at 34a-35a.

Playing on this theme that cigarettes are so inherently

dangerous that Reynolds should never have manufactured

them, Kenyon’s counsel described his argument as follows:

Kenyon “was injured by a defective product” that “shouldn’t

have been available to him in the form that they were in.

Period.” Pet. App. 26a. During closing, Kenyon’s counsel

told the jury to “think of two things that Dr. Townsend said:

One, a cigarette is inherently dangerous; and two, it’s not

safe for its intended use. A cigarette is not safe for its

intended use. If it’s inherently dangerous and not fit for its

intended use, it’s unreasonably dangerous and defective.”

Id. at 21a. He further claimed that nicotine in cigarettes was

addictive and “made people smoke,” but Reynolds “didn’t do

anything about it because they wanted to stay in the

conventional cigarette business as long as they could.” Jd. at

23a. Kenyon’s counsel also took advantage of the erroneous

instruction on strict liability to argue that cigarettes are,

8

without more, so inherently dangerous as to justify the

imposition of tort liability:

“A product may also be unreasonably dangerous if the

risk of danger outweighs the benefit.” Well, so, you have

to say, “What’s the benefit of a cigarette?” Most people

tell you people don’t smoke—don’t ever tell you. What’s

the benefit of that? There isn’t any. So the risk of danger

would outweigh—it would simply outweigh whatever

benefit you get from the cigarette.

Id. at 22a.

After the close of Kenyon’s case, on November 21, 2001,

Reynolds filed a motion for directed verdict and a new trial,

arguing that Kenyon had submitted no evidence suggesting

that an alternative cigarette design was available or that

Kenyon would have chosen an alternative cigarette. Pet.

App. 14a-15a. Rather, Kenyon relied on the preempted strict

liability claim that Reynolds could be held liable simply for

manufacturing and selling cigarettes. Jd. The court denied

this motion without opinion. Jd. at 17a-19a.

5. On December i2, 2001, the jury rendered a verdict

finding in Reynolds’ favor on all claims except strict liability

for defective cigarette design. Pet. App. 5a-7a With respect

to strict liability, the jury awarded Kenyon $165,000 for his

medical expenses. Jd. at 7a. The court entered final

judgment on December 18, 2001. Jd. at 3a-4a.

6. Reynolds timely filed a notice of appeal on March

28, 2002, and asked for reversal, again on the ground that

Kenyon’s strict liability claim was conflict preempted. On

May 30, 2003, the Florida Second District Court of Appeal

affirmed the lower court’s decision without opinion in a per

curiam order. Pet. App. 2a. On August 8, 2003, the court

denied Reynolds’ motion for rehearing, rehearing en banc,

and issuance of a written opinion. /d. at la.

TOES shane

9

REASONS FOR GRANTING THE WRIT

The Florida Second District Court of Appeal’s decision

affirmed the imposition of liability on a cigarette

manufacturer for merely participating in the business of

producing and selling cigarettes without more. If allowed to

Stand, this ruling will effectively force cigarette

manufacturers to choose between exiting the tobacco-

products business in Florida or facing potentially massive

State tort liability. For this reason, the decision is an affront

to Congress’s determination that cigarettes cannot be

prohibited as a matter of federal economic policy and flatly

contradicts this Court’s preemption and tobacco-regulation

jurisprudence. In addition, the ruling is inconsistent with

other state and federal decisions regarding conflict

preemption.

This Court should correct, indeed should summarily

reverse, the erroneous decision of the Florida Second District

Court of Appeal. Absent this Court’s intervention, the

literally thousands of cases pending against cigarette

manufacturers in Florida could be prosecuted as if mere

participation in the cigarette business, without more, is

tortious. This would create the possibility of a de facto ban

on cigarette manufacturing and sales in the State of Florida.

I. THE FLORIDA SECOND DISTRICT COURT OF

APPEAL’S DECISION CONFLICTS DIRECTLY

WITH CONGRESSIONAL POLICY AND THIS

.COURT’S JURISPRUDENCE.

Contrary to the lower court’s decision, this Court’s cases

compel the conclusion that cigarette manufacturers cannot be

liable for the mere manufacture and sale of cigarettes, as

such a result would conflict with federal policy and

objectives.

Just three years ago, in Food & Drug Administration vy.

Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000),

10

this Court confirmed that Congress has so “foreclosed the

removal of tobacco products from the market” that cigarette

manufacturers must be allowed to sell their product.

Id. at 137. In that case, the Food and Drug Administration

(“FDA”) asserted that it had the authority to regulate tobacco

products. The Court resoundingly rejected this argument in

part because FDA regulations would have required a ban of

cigarette and smokeless tobacco sales, in contravention of

Congress’s determination that tobacco products must be

allowed to remain on the market in the interest of the

national economy. /d. at 137-38.

In the Court’s view, Congress had clearly demonstrated its

intent to permit the manufacture and sale of tobacco products

by providing in the United States-Code that “‘‘[t]he marketing

of tobacco constitutes one of the greatest basic industries of

the United States with ramifying activities which directly

affect interstate and foreign commerce at every point, and

stable conditions therein are necessary to the general

welfare.” Jd. at 137 (quoting 7 U.S.C. § 1311(a)). In

addition, Congress’s extensive regulation of tobacco

products, at a time when the potential ill-effects of tobacco

use were known, compelled the conclusion that Congress

meant to keep the products on the market:

When Congress enacted these statutes [regulating

tobacco], the adverse health consequences of tobacco use

were well known, as were nicotine’s pharmacological

effects. Nonetheless, Congress stopped well short of

ordering a ban. Instead, it has generally regulated the

labeling and advertisement of tobacco products, expressly

providing that it is the policy of Congress that “commerce

and the national economy may be.. . protected to the

maximum extent consistent with” consumers “being

adequately informed about any adverse health effects.”

15 U.S.C. § 1331. Congress’ decisions to regulate

labeling and advertising and to adopt the express policy

of protecting “commerce and the national economy to the

1]

maximum extent” reveal its intent that tobacco products

remain on the market. Indeed, the collective premise of

these statues is that cigarettes and smokeless tobacco will

continue to be sold in the United States. A ban of tobacco

products by the FDA would therefore plainly contradict

congressional policy.

Brown & Williamson, 529 U.S. at 138-39 (internal citations

omitted) (emphasis added).

. Only a few months after issuing its decision in Brown &

Williamson, indeed in the same Term, this Court also

concluded that States cannot undercut federal policy by

imposing tort liability on a manufacturing practice that

Congress has sanctioned in order to promote a_ national

objective.

Specifically, in Geier v. American Honda Motor

Company, 529 U.S. 861 (2000), Alexis Geier, who was

seriously injured after the Honda Accord she was driving

collided with a tree, sued Honda under state tort law

claiming that her injuries were the result of Honda’s failure

to include airbags or other passive restraint devices in the

car. Jd. at 865. The Court concluded that Geier’s “‘no

airbag’ lawsuit” was preempted because it “conflict[ed] with

the objectives of [federal regulations].” Jd. at 866.

If allowed to proceed, the Court explained, Geier’s claim

would have frustrated a federal regulatory scheme—namely,

Department of Transportation regulations that permitted

automobile manufacturers to install airbags, other Passive

restraints or manual restraint devices at their discretion. This

federal policy embodied the “judgment that safety would

best be promoted if manufacturers installed alternative

protection systems in their fleets rather than one particular

system in every car.” Jd. at 881 (quoting brief of United

States) (emphasis in original). But Geier’s tort action

“depend[ed] upon its claim that manufacturers had a duty to

install an airbag.” Jd. Geier’s suit thereby “presented an

12

obstacle to the variety and mix of devices that the federal

regulation sought,” and was preempted.

Taken together, Brown & Williamson and_ Geier

unambiguously demonstrate that any state law or rule that

permits the imposition of liability simply for the manufacture

and sale of cigarettes, without some specific defect in the

particular cigarette at issue, is preempted. Brown &

Williamson holds that, while tobacco products may be

extensively regulated, their manufacture and sale cannot be

prohibited in light of federal policy permitting cigarette

production as necessary to the national economy. Geer,

moreover, holds that state tort law is preempted and stands as

an obstacle to the fulfillment of federal policy objectives

when it imposes liability on a manufacturing practice that

Congress has sanctioned. Thus, together, these decisions

confirm that States cannot impose tort liability basea simply

on the manufacture and sale of cigarettes, because doing so

would conflict with Congress’s policy of allowing cigarette

sales to promote economic stability.

Kenyon was permitted to recover, however, precisely

under this rationale. Reynolds sought summary judgment, a

directed verdict, and special jury instructions on the ground

that Kenyon’s strict liability claim—a claim based. on

Reynolds’ participation in the cigarette industry—was

preempted. But the circuit court refused to even consider

this argument, rejecting it out of hand. Kenyon prosecuted

his case as if the issue were whether cigarettes are so

inherently dangerous that their manufacture and sale, without

more, violates tort law. The jury responded by finding

Reynolds liable on one claim only, this strict liability claim.

As a result, the trial court permitted Kenyon to recover on

the basis of the jury’s determination that cigarette

manufacturers have a duty to refrain from manufacturing and

selling cigarettes because cigarettes are mherently dangerous

and defective. But this determination effectively requires

cigarette manufacturers to stop making cigarettes or face

eel

ee

13 ~

staggering liability. As such, the tort liability imposed below

is an obstacle to the fulfillment of Congress’s policy to

regulate but ultimately permit the sale of tobacco products so

that “commerce and the national economy may be...

protected to the maximum extent.” 15 U.S.C. § 1331: Brown

& Williamson, 529 U.S. at 138-39.

Indeed, by affirming the jury’s decision to impose liability

for cigarette manufacturing and sales, the Florida Second

District Court of Appeal’s decision could effectively operate

as a de facto ban on cigarette products. Under its approach,

a manufacturer can be held liable, even if it adheres to every

Statute and regulation governing tobacco products and every

other duty imposed by tort law, simply because it sold a

lawful product, cigarettes. Only complete abstention from

the manufacture and sale of this product would satisfy the

lower court. As this Court has recognized, however, such a

de facto ban “would . . . plainly contradict congressional

policy.” Brown & Williamson, 529 U.S. at 138-39.

Because the Florida Second District Court of Appeal did

not provide reasons for its decision, it is difficult to discern

why it failed to follow Brown & Williamson and Geier.

Presumably, the lower court did not publish its views on the

issue because it fully endorsed Kenyon’s argument below.

That is, the lower court surely would have written ap opinion

if it intended to adopt a novel reason for its decision—

particularly one not addressed by the parties. Its failure to do

so thus strongly suggests that the court was persuaded by

Kenyon’s argument. Kenyon’s argument to the lower court,

however, is flatly contrary to this Court’s precedent.

In the Florida Second District Court of Appeal, Kenyon

argued that there is no conflict preemption doctrine in

tobacco cases, because all preemption issues in this area are

governed by this Court’s decision in Cipollone:

~The preemption doctrine does not concern cigarette design

but relates to restrictions on their advertising and

14

promotion. The controlling decision on the preemption of

state law tort claims against cigarette manufacturers is

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct.

2608, 120 L.Ed.2d 407 (1992) (“Cipollone”). Cipollone

adopted a straightforward test for determining whether a

particular state law tort claim was preempted by federal

regulation of the tobacco industry.

Pet. App. 52a. Kenyon then characterized Cipollone as

requiring only one preemption inquiry in tobacco cases—

“whether the legal duty that is the predicate of the common-

law damages action constitutes a ‘requirement or prohibition

based on smoking and health . . . imposed under State law

with respect to . . . advertising or promotion.’” /d. (quoting

Cipollone, 505 U.S. at 523-24)). Kenyon’s counsel urged

the lower court to disregard conflict preemption principles,

claiming that “any argument that Reynolds might make that

these precedents are inapplicable because it is relying on

‘conflict preemption’ rather than express preemption has

been expressly foreclosed by no less an authority than the ;

United States Supreme Court—twice.” Pet. App. 53a.

For support, Kenyon cited this Court’s statement in

Cipollone that “[w]hen Congress has considered the issue of

pre-emption and has included in the enacted legislation a

provision explicitly addressing that issue,” the court need not

“infer congressional intent to pre-empt state laws from the

substantive provisions of the legislation,” and also cited

Cipollone’s statement that there is no “inherent conflict”

between “preemption of state warning requirements and the

continued viability of state-common law damage actions.”

Pet. App. 53a-54a (quoting Cipollone, 505 U.S. at 517,

518)). In addition, Kenyon’s counsel cited Freightliner

Corp. v. Myrick, 514 U.S. 280, 287-88 (1995), for the

proposition that this quoted language from Cipollone

“amounted to a blanket holding that implied or conflict

preemption could never exist when Congress had chosen to

15

include an express preemption clause in a statute.” Pet.

App. 54a.

Kenyon concluded: “In short, with respect to tobacco, the

doctrine of conflict preemption may not be used to extend

the preemption expressly provided by statute.” Jd. See also

id. at 16a-17a (making same argument to the circuit court).

This argument 1s demonstrably wrong.” This Court

considered in Geier the impact that express preemption

clauses and savings clauses have on conflict preemption

principles and concluded that the existence of an express

preemption provision, and even a savings clause, does not

preclude the application of conflict preemption principles:

Why, in any event, would Congress not have wanted

ordinary pre-emption principles to apply where an actual

conflict with a federal objective is at stake? Some such

principle is needed. In its absence, state law could impose

legal duties that would conflict directly with federal

regulatory mandates, say, by premising liability upon the

~

‘ In other proceedings, Kenyon’s counsel has argued that by denying

certoriari in Carter v Brown & Williamson Tobacco Co., 533 US. 950

(2001)—a case involving express preemption and the meaning of

Cipollone—this Court held that only express preemption applies in

tobacco cases. This argument is erroneous because Carter had nothing to

say about conflict preemption at all, see 778 So. 2d 932 (Fla. 2000), the

petitioner in Carter did not seek review of any conflict preemption issue,

and the Court’s decision to deny certiorari said nothing about the merits

of the Carter decision whatsoever. See Maryland v. Baltimore Radio

Show, Inc., 338 U.S. 912, 919 (1950) (opinion of Frankfurter, J..

respecting denial of the petition for certiorari) (Inasmuch. therefore, as

all that a denial of a petition for a writ of certiorari means is that fewer

than four members of the Court thought it should be granted, this Court

has rigorously insisted that such a denial carries with it no implication

whatever regarding the Court’s views on the merits of a case which it has

declined to review. The Court has said this again and again: again and

again the admonition has to be repeated.”).

16

presence of the very . . . requirements that federal law

requires.

529 U.S. at 871. Tellingly, Kenyon’s counsel never cited

Geier in its discussion of conflict preemption. Nor did

counsel explain why Geier should have no application in the

tobacco context. It is inescapable, however, that the Geier

decision completely eviscerates Kenyon’s argument below

and the lower court’s implied rationale.

Il. THE FLORIDA SECOND DISTRICT COURT OF

APPEAL’S DECISION IS INCONSISTENT WITH

THE DECISIONS OF EVERY OTHER COURT

THAT HAS CONSIDERED THE PREEMPTION

ISSUE.

By ignoring the holding in Geier that conflict preemption

principles apply to claims that fall outside of an express

preemption provision, and by upholding the imposition of

tort liability on Reynolds solely for manufacturing a product

that Congress permits to be manufactured, the lower court

radically departed from the preemption principles adopted by

every other court that has considered these issues to date.

As an initial matter, since Geier was decided, the federal

courts of appeal and state courts of last resort have uniformly

rejected the argument advanced by Kenyon’s counsel and

implicitly adopted by the Florida Second District Court of

Appeal that an express preemption provision bars the

application of conflict preemption principles. See, e.g.,

Oxygenated Fuels Ass’n v. Davis, 331 F.3d 665, 670 (9th

Cir. 2003) (recognizing that just because action was not

expressly preempted “nevertheless does not entirely

foreclose any possibility of implied preemption”) (internal

quotations and citation omitted); Fisher v. Ford Motor Co.,

224 F.3d 570, 573 (6th Cir. 2000) (interpreting Geier to

mean that despite the existence of an express preemption

provision, “ordinary preemption principles nevertheless can

apply to bar a suit against a manufacturer”); James v. Mazda

17

Motor Corp., 222 F.3d 1323, 1326 (11th Cir. 2000) (holding

that regardless of existence of express preemption provision

and savings clause “courts should apply normal implied

preemption principles to determine if a State common law

action stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress”)

(internal quotations and citation omitted): Choate v.

Champion Home Builders Co., 222 F.3d 788. 794 (10th Cir.

2000) (“The presence of an express preemption provision .. .

does not, by itself, foreclose an implied preemption

analysis.”); Hurley v. Motor Coach Indus., Inc., 222 F.3d

377, 381 (7th Cir. 2000) (holding that even though “the

Act’s express preemption provision did not preempt the

suit... ordinary preemption principles continue to apply to

this area”); Great Dane Trailers, Inc. v. Estate of Wells, 52

S.W.3d 737, 741 (Tex. 2001) (same).

Significantly, apart from the Florida Second District Court

of Appeal, the lower courts have also uniformly held that

States cannot impose tort liability on a product or practice

that Congress has sanctioned. Even prior to Geier, the

federal courts of appeal and state courts of last resort

uniformly recognized that States could not impose a de facto

ban on products, even dangerous ones, that Congress

sanctions.

In the hazardous waste field, for example, federal and

State courts uniformly recognize that States may regulate but

cannot prohibit certain non-land-based methods of hazardous

waste disposal, because Congress provided in the Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§ 6902(a)(1), that federal policy encourages such disposal. -

See Hermes Consol. Inc. y. People, 849 P.2d 1302, 1311

(Wyo. 1993) (“[A]lthough [RCRA] allows states to adopt

more stringent regulations, it does not authorize them to

defeat safe federal solutions... . [or] to directly subvert

RCRA and [EPA] decisions by outright bans on activities

federal authorities considered safe.”) (internal quotations

18

omitted); Jacksonville v. Ark. Dep’t of Pollution Control &

Ecology, 824 S.W.2d 840, 842 (Ark. 1992) (holding that

RCRA preempted city ordinance because the local measure

frustrated RCRA’s “preference for treatment rather than land

disposal of hazardous waste’); ENSCO, Inc. v. Dumas, 807

F.2d 743, 745 (8th Cir. 1986) (“A county cannot. . . arrogate

to itself the power to enact a measure that as a practical

matter cannot function other than to subvert federal policies

concerning the safe handling of hazardous waste.”); Rollins

Envtl. Servs. of La. v. Iberville Parish Police Jury, 371

So. 2d 1127, 1132 (La. 1979) (same).

Similarly, in the mining context, the courts have

uniformly held that state laws prohibiting mining activities

on public lands conflict with federal law and are preempted

in light of Congress’s policy of encouraging the free and

open exploration of public tands for valuable mineral

deposits. 30 U.S.C. § 22; see also United States v. Coleman,

390 U.S. 599, 602 (1968) (observing that intent of 30 U.S.C.

§ 22 1s to reward and encourage the discovery of minerals on

public lands); South Dakota Mining Ass’n v. Lawrence

County, 155 F.3d 1005, 1011 (8th Cir. 1998) (local laws

were preempted because they “completely frustrat[e] the

accomplishment of . . . federally encouraged activities. A

local government cannot prohibit a lawful use of the

sovereign’s land that the superior sovereign itself permits

and encourages.”’).

Since Geier was decided, the federal courts of appeals

have made clear that this rule applies even when States seek

not to ban a product or practice outright, but to impose tort

liability on the federally-sanctioned product or practice. In

Griffith v. General Motors Corp., 303 F.3d 1276 (11th Cir.

2002), cert. denied, 123 S. Ct. 1953 (2003), for example, the

Eleventh Circuit held that automobile makers could not be

liable under strict liability principles for manufacturing an

allegedly dangerous pickup truck that had only a lap belt in

its center seat. Jd. at 1280-82. Citing Geier, the court

ea Sa okra aire Bi pivies ubs: Shae

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19

reasoned that the claim conflicted with federal standards

expressly permitting such a lap belt design, and that “[i]f

successful, [plaintiff's] suit would foreclose an option

specifically permitted by [federal regulations]. Therefore, it

conflicts with that federal law and is impliedly preempted.”

Id. at 1282. See also James v. Mazda Motor Corp., 222 F.3d

1323 (11th Cir. 2000) (holding same with respect to claim

that automobile’s design was inherently dangerous because it

contained manual lap belt).

Similarly, the Seventh Circuit, also relying on Geier, has

recognized that state tort law cannot impose liability on a

product that, as a matter of federal policy, must be permitted

on the market. See Hurley v. Motor Coach Indus. Inc., 222

F.3d 377 (7th Cir. 2000). In Hurley, the court of appeals

concluded that a bus manufacturer could not be liable under

State tort law for failing to include in a bus a knee bolster, a

three-point seat belt, an airbag, and a steel cage around the

driver’s area. Jd. at 380. As a matter of policy, federal

regulators “with specific policy objectives in mind” had left

“to bus manufacturers” decisions about how to install

Passenger protection systems. Jd. at 382. Because Geier

required the preemption of state tort law whenever it “would

undermine [a] policy objective” of the Federal Government,

id. at 382, state law could not impose liability for the design

choice of a bus manufacturer that Congress had sanctioned.

Thus, in the face of Geier, the federal circuit courts agree

that state tort law is preempted when it would allow

manufacturers to be held liable for creating a product or

utilizing a manufacturing practice that Congress provides

must be permitted in order to achieve some policy goal.

Applying these same principles, numerous lower courts

have held that cigarette manufacturers cannot be subject to

strict liability simply for producing and selling cigarettes. In

Insolia v. Philip Morris Inc., 128 F. Supp. 2d 1220 (W.D.

Wis. 2000), for example, the court dismissed the claim that

“it is actionable negligence for defendants to continue to

20

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manufacture and sell cigarettes once they realized the danger

that cigarettes posed.” Jd. at 1224. Citing Brown &

Williamson, the court observed that “[a] holding to that

effect would run afoul of the congressional policy that the

sale of cigarettes is legal.” Jd. at 1223. And citing Geier, the :

court noted that “[i]f Congress gives express sanction to an |

activity, the [S]tates cannot declare that activity tortious.”

Id. at 1224. In addition, it rejected the argument that conflict

preemption principles do not apply to tobacco claims:

Plaintiffs are correct that there is no law or regulation that

preempts their claim that it is actionable negligence for

defendants to continue to manufacture and sell cigarettes

once they realized the danger that cigarettes posed. What |

preempts their claim is Congress’s considered decision 0

that the sale of cigarettes is not only not illegal but part of fs

a market the government supports. Just as it would have

interfered with the federal government’s policy on air

bags to allow state tort actions against automobile

manufacturers who relied on the safety standard to omit

air bags from their vehicles, allowing tort actions against

cigarette manufacturers and sellers for the allegedly

negligent act of continuing to make and sell cigarettes

would interfere with Congress’s policy in favor of

keeping cigarettes on the market.

Id. at 1224-25 (internal citations omitted).

Similarly, in Cruz-Vargas v. R.J. Reynolds Tobacco Co.,

218 F. Supp. 2d 109 (D.P.R. 2002), aff'd on other grounds,

No. 02-2688, 2003 WL 22434631 (Ist Cir. Oct. 28, 2003),

the court rejected the argument that cigarette manufacturers

could be liable under tort law for the “inherent[ly dangerous]

characteristics of tobacco and cigarettes.” Jd. at 117. Citing

Brown & Williamson, the court observed that “Congress has

foreclosed the removal of tobacco products from the

market.” /d. at 118. And citing Geier, it recognized that tort

actions could not “interfere with Congress’s policy in favor

of keeping cigarettes on the market.” /d. (internal citations

LS

21

and quotations omitted). Taken together, the court

concluded, these cases compelled the conclusion that

“[dJefendant Reynolds cannot be held liable under Puerto

Rico law simply because it manufactures and sells cigarettes.

Therefore, to the extent that Plaintiffs seek to impose tort

liability against Defendant Reynolds merely for

manufacturing and selling cigarettes, we find Plaintiffs’

clains to be preempted.” Jd.: see also DuJack v. Brown &

Williamson Tobacco Corp., No. X07-00728225-S, slip op. at

4, 6-7 (Conn. Super. Ct. Nov. 13, 2001) (granting directed

verdict on claim that cigarettes were defectively designed

because they contain nicotine; courts cannot “impose

liabilities... merely for engaging in [the] activity of

smoking, selling and using cigarettes” because Congress has

determined that these are legal activities) (attached hereto.

Pet. App. 57a-62a). The Florida court’s decision thus

conflicts with the reasoning adopted by every federal court

of appeal interpreting Geier and the decisions of federal and

state courts considering the precise issue here.

Ill. THIS COURT’S IMMEDIATE REVIEW OF THE

IMPORTANT QUESTION PRESENTED IS

NECESSARY TO PROTECT FEDERAL POLICY

AND SUPREME COURT PRECEDENT.

This Court’s review is appropriate not only to correct an

erroneous decision on an important federal question but to

safeguard federal policy and this Court’s Jurisprudence.

There can be no real debate that the question presented

raises issues of tremendous national importance. Congress

recognizes tobacco manufacturing as “one of the greatest

basic industries of the United States.” 7 US.C. §1311(a).

This Court, moreover, has observed that preemption issues

concerning tobacco suits have “manifest importance.”

Cippolone, 505 U.S. at 509. Indeed, legal issues surrounding

the tobacco industry are so important to the national

economy and thousands of pending suits that this Court has

not hesitated to review them even absent a split of authority

22

on the underlying legal question. See generally Brown &

Williamson, 529 U.S. at 130 (considering tobacco regulation

by FDA absent a split of authority on the issue).

Review is particularly appropriate here. Absent this

Court’s immediate intervention, the lower court’s decision

could seriously undercut federal policy by effectively

causing a de facto ban on tobacco sales in the State of

Florida. There are literally thousands of cases pending in

Florida that raise the same preempted strict liability claim on

which Kenyon prevailed, and of these, many are being

prosecuted by the same attorneys here. A sizeable number of

these cases, moreover, are pending in the circuit courts

within the jurisdiction of the Florida Second District Court of

Appeal.

No doubt emboldened by their victory in the lower court,

Kenyon’s attorneys will likely continue to argue, wrongly,

that conflict preemption principles do not apply in tobacco

cases. Indeed, since this case was decided, plaintiff's

counsel has successfully argued this erroneous theory of

preemption in another Florida trial against Reynolds,

demonstrating that the Florida courts’ erroneous view of

preemption will persist absent this Court’s intervention. See

Hall v. R.J. Reynolds Tobacco Co., No. 00-1061, slip op. at

1-2 (Fla. 13th Jud. Cir. Oct. 1, 2003). Given their potential

liability for every cigarette sale in the State, cigarette

manufacturers would face severe pressure to discontinue

cigarette sales in Florida, raising the very threat to the

national economy that Congress sought to avoid.

This Court’s review is, indeed, essential in light of the

lower court’s attempt to shield its decision from the Florida

Supreme Court and prevent a true split of authority from

ever developing on the question presented. Under the

Florida Constitution, the Florida Supreme Court has no

jurisdiction to review per curiam decisions of the District

Courts of Appeal when the appellate court does not issue an

opinion. See Fla. Const. art 5, § 3(b)(3); Jenkins v. Florida,

Pron tr arta

23

385 So. 2d 1356, 1359 (Fla. 1980) (“[T]he Supreme Court of

Florida lacks jurisdiction to review per curiam decisions of

the several district courts of appeal of this [S]tate rendered

without opinion.”). As a result, absent intervention by this

Court, the Florida courts can insulate decisions that are

contrary to this Court’s precedent, federal law, and the

jurisprudence of every other court by refusing to issue an

opinion.

That is precisely what occurred here. Even though

Reynolds appealed the conflict preemption issue and

demonstrated that Kenyon’s claim was flatly contrary to

federal policy, the Florida Second District Court of Appeal

affirmed the circuit court in a one-word per curiam order.

Pet. App. 2a. Moreover, it denied Reynolds’ request for the

issuance of an opinion so that the Florida Supreme Court

could consider the issue. Jd. at la. By doing so, the court

effectively prevented the Florida Supreme Court from either

correcting its error or issuing a decision that would have

cleanly split with the federal courts of appeal about the

meaning of Geier and conflict preemption. Thus, unless this

Court intervenes, the Florida courts will be allowed to flout

this Court’s decisions and federal policy due to a procedural

anomaly specific to the State. See Florida v. Rodriguez, 469

U.S. 1, 5 (1984) (reversing Florida District Court of Appeal

after court issued one word order affirming superior court

that prevented state high court review, where lower court’s

decision clearly misread and misapplied this Court’s

precedents). Los

The Florida court’s decision is so clearly contrary to this

Court’s precedent that summarily disposing of this petition

in Reynolds’ favor would be appropriate. See Sup. Ct.

R. 16.1. A summary reversal order is called for where “the

lower court result is so clearly erroneous, particularly if there

is controlling Supreme Court precedent to the contrary, that

full briefing and argument would be a waste of time.” Stern

& Gressman, supra, at 315-16.

: 24

This Court has not hesitated to exercise its summary

disposition power in cases involving egregious and

demonstrable errors by lower courts.’ Nor has the Court

3 In the past ten years, the Court has exercised its summary reversal

power in over fifty cases. See, e.g., Mitchell v. Esparza, No. 02-1369,

slip op. at 1 (Nov. 3, 2003): Yarborough v. Gentry, No. 02-1597. slip op.

at 9-11 (Oct. 20, 2003): Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037,

2040-41; (2003): City of Los Angeles v. David, 123 S. Ct. 1895, 1896

(2003): Woodford v. Visciotti, 537 U.S. 19, 20 (2002): Early v. Packer,

537 U.S. 3, 4 (2002): INS v. Ventura, 537 U.S. 12, 14 (2002); Stewart v.

Smith, 536 U.S. 856, 861 (2002); United States v. Bass, 536 U.S. 862,

864 (2002): Kirk v. Louisiana, 536 U.S. 635, 635-36 (2002): Horn v.

Banks, 536 U.S. 266, 267 (2002); Sao Paulo State of Federative Rep. of

Braz. v. Am. Tobacco Co., Inc., 535 U.S. 229, 232-33 (2002): Arkansas

v. Sullivan, 532 U.S. 769, 771 (2001); Major League Baseball Players

Ass'n v. Garvey, 532 U.S. 504, 505 (2001): Clark County Sch. Dist. v.

Breeden, 532 U.S. 268, 271 (2001); Ohio v. Reiner, 532 U.S. 17, 18

(2001): Fiore v. White, 531 U.S. 225, 228-29 (2001): Adarand

Constructors, Inc. v. Slater, 528 U.S. 216, 222-24 (2000): Texas v.

Lesage, 528 U.S. 18, 22 (1999): Flippo v. West Virginia, 528 U.S. 11, 12

(1999): Maryland v. Dyson, 527 U.S. 465, 465 (1999); Cent. State Univ.

v. Am. Ass'n of Univ. Professors, Cent. State Univ. Chapter, 526 U.S.

124, 127-29 (1999): Stewart v. LaGrand, 526 U.S. 115, 118-21 (1999):

Roberts v. Galen of Va., Inc., 525 U.S. 249, 250 (1999): Calderon v.

Coleman, 525 U.S. 141, 145-47 (1998): New Mexico, ex rel. Ortiz v.

Reed, 524 U.S. 151, 153-55 (1998): Hetzel v. Prince William County,

Virginia, 523 U.S. 208, 211-12 (1998): City of Monroe v. United States.

522 U.S. 34, 35 (1997): Pounders v. Watson, 521 U.S. 982, 983 (1997):

Mazurek v. Armstrong, 520 U.S. 968, 971-76 (1997); Lambert v.

Wicklund, 520 U.S. 292, 293 (1997); Bibles v. Oregon Natural Desert

Ass'n, 519 U.S. 355, 355-56 (1997); United States v. Watts, 519 U.S.

148, 149 (1997): Greene v. Georgia, 519 U.S. 145, 145-47 (1996):

United States v. Jose, 519 U.S. 54, 57-58 (1996); Pennsylvania v.

Labron, 518 U.S. 938, 938 (1996); Calderon v. Moore, 518 U.S. 149,

150-51 (1996): Leavitt v. Jane L., 518 U.S. 137, 138 (1996): Dalton v.

Little Rock Family Planning Servs., 516 U.S. 474, 475-76 (1996); Wood

v. Bartholomew, 516 U.S. 1, 2 (1995): Purkett v. Elem, 514 U.S. 765,

769 (1995): United States v. Robertson, 514 U.S. 669, 671-72 (1995):

Goeke v. Branch, 514 U.S. 115, 120-21 (1995): Duncan v. Henry, 513

U.S. 364, 365-66 (1995): Stansbury v. California, 511 U.S. 318, 325-27

(1994): Burden v. Zant, 510 U.S. 132, 133-34 (1994): El Vocero de

Puerto Rico (Caribbean Int’l News Corp.) v. Puerto Rico, 508 U.S. 147,

25

ever limited its exercise of summary disposition power to

criminal cases, summarily disposing of cases where the

underlying suit involves legal principles that affect civil,

rather than criminal, liability. See Alafabco, 123 S. Ct. at

2040-41 (arbitration dispute); Major League Baseball

Players Ass'n, 532 U.S. at 505 (arbitration); Breeden, 532

U.S. at 27] (employment discrimination); Village of

Willowbrook vy. Olecho, 528 U.S. 562, 565 (2000) (easement

dispute); Cent. State Univ. y. Am. Ass’n of Univ. Professors,

526 U.S. at 127-28 (statutory interpretation).

In addition, Summary disposition is not a device limited to

reversing the federal courts of appeals, but is routinely

applied by this Court to state court decisions where, as here,

the state court disregarded Supreme Court precedent. See

Alafabco, 123 S.Ct. at 2040-41 (summarily reversing

decision of Alabama Supreme Court that misapplied

Supreme Court Jurisprudence interpreting the Federal

Arbitration Act): Bunkley v. Florida, 123 S. Ct. 2020, 2023-

24 (2003) (summarily vacating Florida Supreme Court

decision as inconsistent with Fiore y. White, 531 U.S. 225

(2001)); Kaupp v. Texas, 123 S. Ct. 1843, 1847-48 (2003)

(summarily vacating Texas intermediate court decision as

contrary to Court’s Fourth Amendment jurisprudence); Kirk,

536 U.S. at 636 (summarily reversing Louisiana intermediate

court decision as inconsistent with Payton v. New York, 445

U.S. 573 (1980)).

149-51 (1993): United States v. Padilla, 508 U.S. 77, 81-82 (1993): Delo

v. Lashley, 507 U.S. 272, 277-80 (1993): United States vy. Nachtigal, 507

U.S. 1, 5-6 (1993): Dobbs v. Zant, 506 U.S. 357, 358-60 (1993).

Indeed, just days before this petition was filed, the Court summarily

reversed a decision of the Sixth C ircuit—the second summary reversal of

the Term. See Esparza, No. 02-1369, slip op. at 1.

26

This is true even when the lower court is a state

intermediate court that has failed to apply Supreme Court

precedent. See Kaupp, 123 S.Ct. at 1847-48 (vacating

decision of intermediate Texas court); Kirk, 536 U.S. at 636

(reversing decision of Louisiana intermediate court); Dyson,

527 U.S. at 466 (summarily reversing intermediate Maryland

court); Newsweek, Inc. v. Fla. Dep’t Revenue, 522 U.S. 442,

443-44 (1998) (summarily vacating decision of the Florida

District Court of Appeal); Rodriguez, 469 U.S. at 5

(summarily reversing one-word order of Florida District

Court of Appeal).

In light of the thousands of pending cases in Florida

raising the issue here, the clear error of the Florida Second

District Court_of Appeal and the need to protect federal

policy, this Court’s review, as well as its summary

disposition of this case, is essential.

CONCLUSION

The petition should be granted, and either the Florida

Second District Court of Appeal’s decision should be

summarily reversed or the Court should hear argument on

the question presented.

Respectfully submitted,

~BENJAMIN H. HILL, III ROBERT H. KLONOFF

HILL, WARD & HENDERSON (Counsel of Record)

101 East Kennedy Blvd. STEPHANIE E, PARKER

Suite 3700 TRACI L. LOVITT

Tampa, FL 33602 JONES DAY

($13) 221-3900 51 Louisiana Avenue, N.W.

Washington, DC 20001

Of Counsel (202) 879-3939

Counsel for R.J. Reynolds

November 2003 Tobacco Company