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Graham v. R.J. Reynolds Tobacco Co.

United States Court of Appeals, Eleventh Circuit

May 18, 2017

THERESA GRAHAM, as PR of Faye Dale Graham, deceased, Plaintiff-Appellee,
v.
R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, PHILIP MORRIS USA, INC., Defendants-Appellants.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:09-cv-13602-MMH-JBT

          Before TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. [*]

          WILLIAM PRYOR, Circuit Judge.

         This appeal presents the questions whether due process forbids giving a jury's findings of negligence and strict liability in a class action against cigarette manufacturers preclusive effect in a later individual suit by a class member and, if not, whether federal law preempts the jury's findings. Florida smokers and their survivors filed a class action against several tobacco companies, and after a yearlong trial designed to answer common questions concerning the companies' tortious conduct against all members of the class, a jury found that each company had breached its duty of care and sold defective cigarettes. The Florida Supreme Court upheld the jury verdicts of negligence and strict liability in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (Engle III), and decertified the class to allow individual actions about the remaining issues of specific causation, damages, and comparative fault. The Engle decision made clear that the jury findings of negligence and strict liability had preclusive effect in the later individual actions, and the Florida Supreme Court reaffirmed that ruling in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013). R.J. Reynolds Tobacco Company and Philip Morris USA Inc. challenge a jury verdict against them in one of those individual actions in the district court. They argue that giving the Engle findings preclusive effect violates the Due Process Clauses, U.S. Const. Amends. V, XIV, and they urge us to overrule our decision to the contrary in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013). They argue, in the alternative, that federal law preempts giving preclusive effect to the Engle findings of negligence and strict liability. Because we reaffirm our holding in Walker and conclude that federal law does not preempt the Engle jury findings, we affirm the judgments against R.J. Reynolds and Philip Morris.

         I. BACKGROUND

         In 1994, six individuals filed a putative class action in Florida court against the major domestic cigarette manufacturers, including R.J. Reynolds and Philip Morris, and two tobacco industry organizations. Id. at 1281. They alleged claims of strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress. Id. The strict liability count alleged that the companies manufactured "cigarettes containing nicotine, " "manufactured their defective tobacco products by manipulating the levels of nicotine so as to addict the consuming public, " "failed to design, manufacture, distribute and sell a safer alternative cigarette that would not addict smokers, " and "failed to warn" members of the class of the dangers. The negligence count alleged that the companies "breached their duty of reasonable care" through several "acts and omissions, " including the "failure to design and manufacture products that were not addictive, " the "failure to . . . adequately or sufficiently reduce or remove the level of nicotine in cigarettes, " and the "failure to warn the smoking consumers of the addictive nature of nicotine." A Florida district court of appeal approved the certification of the following class: all Florida citizens and residents, "and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by the addiction to cigarettes that contain nicotine." R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40-42 (Fla. Dist. Ct. App. 1996) (Engle I).

         The trial court in Engle divided the proceedings in three phases. Walker, 734 F.3d at 1281. In Phase I, a jury "decide[d] issues common to the entire class, including general causation, the Engle defendants' common liability to the class members . . ., and the class's entitlement to punitive damages." Douglas, 110 So.3d at 422. Phase I was a year-long trial on "common issues relating exclusively to defendants' conduct and the general health effects of smoking." Liggett Grp. Inc. v. Engle, 853 So.2d 434, 441 (Fla. Dist. Ct. App. 2003) (Engle II). Phase I required "hundreds of witnesses, thousands of documents and exhibits, and tens of thousands of pages of testimony." Douglas, 110 So.3d at 431. In Phase II, the jury determined the liability of the tobacco companies to three class representatives, awarded them compensatory damages, and fixed the amount of class-wide punitive damages. Walker, 734 F.3d at 1281. The trial court planned to have new juries decide specific causation and damages for the remaining class members in Phase III. Id.

         In his opening statement in Phase I, the plaintiffs' attorney stated, "The evidence will show, ladies and gentlemen, that there is no dispute or controversy in the medical and scientific communities but that cigarette smoking causes lung cancer, heart disease, chronic obstructive pulmonary disease, emphysema and many other diseases." He stated that "the evidence will establish overwhelmingly" that "[n]icotine is addictive." And he explained that the tobacco companies "have the technology to make a safer cigarette" but not one that is profitable. He also stated that "the evidence will show that the tobacco companies have so successfully misled the American people that many highly intelligent people, in 1998, are confused."

         The smokers presented a substantial body of evidence that all of the cigarettes manufactured by the named defendants contained carcinogens that cause disease, including cancer and heart disease, and that nicotine addicts smokers. Douglas, 110 So.3d at 423. They presented evidence that the tobacco companies "failed to address the health effects and addictive nature of cigarettes, manipulated nicotine levels to make cigarettes more addictive, and concealed information about the dangers of smoking." Id. For example, Dr. Julius Richmond, a former Surgeon General of the United States and professor at the Harvard Medical School, testified that cigarettes contain carcinogens and that cigarettes cause pulmonary disease, emphysema, lung cancer, heart disease, and bladder disease. Dr. Ronald Davis, a former director of the Office on Smoking and Health and former medical director for the Michigan Department of Public Health, testified similarly that cigarette smoking is addictive and that those who smoke have a heightened risk of stroke, emphysema, cancer, and heart disease. Dr. David Burns, a professor of medicine at the University of California, San Diego, School of Medicine, with a specialty in pulmonary and critical care medicine, testified that nicotine is addictive and that cigarette smoking causes cancers, lung disease, and heart disease. He was an associate scientific editor of a 1981 Surgeon General's Report, and he explained that "the purpose of the report was to make it very clear to the public that there is no safe cigarette and there is no safe level of consumption." He testified, "[W]ith the exception of the tobacco industry, no other scientific group in the last 30 years has reviewed this evidence and reached a conclusion other than that cigarette smoking causes disease." Dr. John Holbrook, professor of medicine at the University of Utah School of Medicine, who is board certified in the field of internal medicine, testified that, in his experience, the tobacco industry "attempted to confound and obfuscate science" in its funding of medical research. Dr. W. Jarrard Goodwin, a professor at the University of Miami School of Medicine, with a specialty in otolaryngology, testified that smoking causes cancer of the mouth, larynx, and pharynx. Dr. Edward Staples, director of the artificial heart program at the University of Florida, testified that cigarette smoking causes emphysema, lung cancer, coronary artery disease, and atherosclerosis. Dr. Neal Benowitz, a doctor at San Francisco General Hospital and professor of medicine, psychiatry, and biopharmaceutical sciences at the University of California in San Francisco, testified that 90 percent of individuals begin smoking before the age of 20 and, within two or three years, those young people will become addicted to nicotine. He stated that tobacco companies could reduce the level of nicotine in cigarettes to nonaddictive quantities. Some of the evidence of design defects applied only to some brands of cigarettes. For example, the smokers presented evidence that people who smoke light cigarettes tend to smoke more and inhale more deeply. But the common thrust of the smokers' evidence was that all of the companies' cigarettes cause disease and addict smokers.

         The tobacco companies put on evidence to defend themselves against the several theories of liability. For example, the companies repeatedly challenged the evidence that cigarette smoking causes disease. Dr. George Hensley, a former professor at the University of Miami School of Medicine with a specialty in pathology, testified that smoking does not cause pancreatic cancer. Dr. Hugh Gilmore, a cardiology professor at the University of Miami School of Medicine, testified that smoking is not a risk factor for the development of aortic aneurysms or congestive heart failure. And Dr. Alden Cockburn, a urologist and a clinical professor at the University of South Florida, testified that smoking is a risk factor for bladder cancer but was not definitively proven to be a cause of bladder cancer.

         In closing argument, the smokers' attorney explained that "[t]he common issue trial has addressed the conduct of the tobacco industry." He recounted some of the expert testimony. He argued, without focusing on any specific brand or manufacturer of cigarettes, that scientists agree that nicotine is addicting, and he argued that there is no scientific debate as to whether cigarette smoking causes certain diseases, including cancer and heart disease. He said, "None of them qualified their answer one iota. Does cigarette smoking cause these diseases? Yes, yes, yes. Clear, crisp and definitive." He also referred the jury to a collection of documents that discussed how the companies manipulated nicotine levels. He mentioned different methods of manipulating nicotine levels but not different brands.

         In closing argument, the tobacco companies' attorneys responded to the smokers' many arguments. The companies contended that cigarettes are not proven to be addictive. They maintained that smokers can quit and that nicotine is a "far cry from heroin or cocaine." And the companies argued that they have tried to make cigarettes safer. They argued that they have not "spiked" cigarettes with nicotine but have reduced the level of nicotine in some cigarettes.

         The trial court instructed the jury in Phase I about the claim of strict liability and negligence without regard to specific brands of cigarettes. For the claim of strict liability, the trial court explained that "the issues are whether one or more of the defendants designed, manufactured and marketed cigarettes which were defective and unreasonably dangerous to smokers." For the claim of negligence, the trial court instructed the jury as follows:

On the claim of negligence, the issues are whether one or more of the defendants were negligent in manufacturing, designing, marketing, selling and distributing cigarettes which defendants knew or should have known would cause serious and fatal diseases, including lung cancer, or dependence-producing substances; in negligently not testing tobacco and commercial cigarettes to confirm that smoking causes human disease; in failing to design and produce a reasonably safe cigarette with lower nicotine levels; in negligently measuring and . . . understating nicotine and tar levels in low-tar cigarettes; and in failing to warn smokers of the dangers of smoking and the addictiveness or dependence-producing effects of cigarettes prior to July 1 of 1969.

         The verdict form included a series of yes-or-no questions. The tobacco companies requested a more detailed verdict form, in which the jury would be asked to identify "specific defects and tortious actions, " but the trial court rejected that proposal. Id. The jury returned its verdict after eight days of deliberation. The first question on the verdict form asked whether smoking cigarettes causes a list of enumerated diseases and medical conditions. The jury answered "yes" for 20 specific diseases, including various forms of cancer. The second question asked whether "cigarettes that contain nicotine [are] addictive or dependence producing." The jury answered "yes." The verdict form then contained nine questions about the conduct of each tobacco company. One of the nine questions asked the jury to decide whether each tobacco company was strictly liable. It asked if the tobacco company "place[d] cigarettes on the market that were defective and unreasonably dangerous." Another question asked if each tobacco company was negligent. It asked if the tobacco company "failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances." The jury answered "yes" to each of these nine questions for each tobacco company. The last question on the verdict form asked the jury whether the actions of the tobacco companies entitled the class to punitive damages, and the jury answered "yes" for each tobacco company.

         The trial court denied the tobacco companies' motion for directed verdict. Id. Regarding strict liability, the court ruled that the evidence supported a finding that all of the tobacco companies' cigarettes were defective even if some of the cigarettes had brand-specific dangers:

There was more than sufficient evidence at trial to satisfy the legal requirements of this Count and to support the jury verdict that cigarettes manufactured and placed on the market by the defendants were defective in many ways including the fact that the cigarettes contained many carcinogens, nitrosamines, and other deleterious compounds such as carbon monoxide. That levels of nicotine were manipulated, sometime by utilization of ammonia to achieve a desired "free basing effect" of pure nicotine to the brain, and sometime by using a higher nicotine content tobacco called Y-1, and by other means such as manipulation of the levels of tar and nicotine. The evidence more than sufficiently proved that nicotine is an addictive substance which when combined with other deleterious properties, made the cigarette unreasonably dangerous. The evidence also showed some cigarettes were manufactured with the breathing air holes in the filter being too close to the lips so that they were covered by the smoker thereby increasing the amount of the deleterious effect of smoking the cigarette. There was also evidence at trial that some filters being test marketed utilize glass fibers that could produce disease and deleterious effects if inhaled by a smoker.

Engle v. R.J. Reynolds Tobacco, 2000 WL 33534572, at *2 (Fla. Cir. Ct. 2000). Regarding negligence, the court ruled that the evidence supported a finding that the tobacco companies were negligent in producing and selling all of their cigarettes:

The verdict of the jury on the issue of Negligence is well supported by the evidence. . . . The defendants according to the testimony, well knew from their own research, that cigarettes were harmful to health and were carcinogenic and addictive. By allowing the sale and distribution of said product under those circumstances without taking reasonable measures to prevent injury, constitutes, in this Court[']s opinion, and in the opinion of the jury as it turns out, negligence.

Id. at *4.

         In Phase II, the same jury determined that the tobacco companies were liable to the three class representatives and awarded them compensatory damages totaling $12.7 million. Walker, 734 F.3d at 1282. The jury awarded punitive damages of $145 billion to the class. Id. The tobacco companies filed an interlocutory appeal of the judgments in Phases I and II. Id.

         The Florida Supreme Court approved in part and vacated in part the jury verdicts. Engle III, 945 So.2d at 1254. The Florida Supreme Court concluded that the trial court did not abuse its discretion in certifying the class for purposes of Phase I and II. Id. at 1267. But the court decertified the class for Phase III "because individualized issues such as legal causation, comparative fault, and damages predominate." Id. at 1268. The Florida Supreme Court "retain[ed]" the findings of liability by the jury from Phase I "other than those on the fraud and intentional infliction of emotion[al] distress claims, which involved highly individualized determinations, and the finding on entitlement to punitive damages questions, which was premature." Id. at 1269. The court explained, "Class members can choose to initiate individual damages actions, " and those retained findings, which include the findings that the companies acted negligently and that they sold defective products, "will have res judicata effect in those trials." Id. The court affirmed the damages award in favor of two of the class representatives and vacated the judgment in favor of the third class representative because the statute of limitations barred his claims. Id. at 1276. The court vacated the award of punitive damages. Id. at 1262-65.

         After members of the Engle class filed thousands of individual actions in state and federal courts, these courts had to determine the extent to which the smokers could rely on the approved findings from Phase I to establish certain elements of their claims. Walker, 734 F.3d at 1283. In Brown v. R.J. Reynolds Tobacco Company, 611 F.3d 1324 (11th Cir. 2010), we stated that, under Florida law, courts should give preclusive effect to the findings only to the extent that the smoker can "show with a 'reasonable degree of certainty' that the specific factual issue was determined in [his] favor." Id. at 1335 (quoting Seaboard Coast Line R. Co. v. Indus. Contracting Co., 260 So.2d 860, 865 (Fla. Dist. Ct. App. 1972)). We remanded to the district court to make that determination after considering the "entire trial record." Id. But several of the Florida district courts of appeal disagreed with our decision that a member of the Engle class had to establish from the trial record that an issue was actually decided. These district courts of appeal all held that the Phase I findings established the duty and breach elements of the smokers' claims, though they disagreed about how the smokers would prove causation in individual cases. See Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002, 1010 (Fla. Dist. Ct. App. 2012); R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 715-16 (Fla. Dist. Ct. App. 2011); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1066-70 (Fla. Dist. Ct. App. 2010).

         In Douglas, the Florida Supreme Court ruled that the approved findings from Phase I established common elements of the claims of Engle class members. 110 So.3d at 428-30. The court explained that, although the evidence submitted during Phase I included both general and brand-specific defects, "the class action jury was not asked to find brand-specific defects in the Engle defendants' cigarettes." Id. at 423. The jury was asked to determine "all common liability issues, " and it heard evidence that the tobacco companies' cigarettes were "defective because they are addictive and cause disease." Id. The court explained that the approved findings concerned conduct that "is common to all class members and will not change from case to case" and that "the approved Phase I findings are specific enough" to establish some elements of the smokers' claims. Id. at 428. That is, the jury findings "conclusively establish" that the tobacco companies manufactured defective products and that the companies failed to exercise the degree of care of a reasonable person. Id. at 430. And the jury findings establish general causation. Id. at 428. Going forward, "to prevail on either strict liability or negligence Engle claims, individual plaintiffs must establish (i) membership in the Engle class; (ii) individual causation, i.e., that addiction to smoking the Engle defendants' cigarettes containing nicotine was a legal cause of the injuries alleged; and (iii) damages." Id. at 430.

         The Florida Supreme Court then held that giving preclusive effect to the approved findings from Phase I did not violate the right to due process of the tobacco companies. Id. The companies had argued that "accepting the Phase I findings as res judicata violates their due process rights because it is not clear from the Phase I verdict which theories of liability the Engle jury actually decided to reach those findings." Id. The Douglas court concluded that the tobacco companies had notice and an opportunity to be heard and that the Engle proceedings did not arbitrarily deprive them of property. Id. at 431. It explained that "the Phase I verdict against the Engle defendants resolved all elements of the claims that had anything to do with the Engle defendants' cigarettes or their conduct." Id. at 432.

         The Douglas court stated, "[T]he defendants' due process argument is an attack on our decision in Engle to give the Phase I findings res judicata-as opposed to issue preclusion-effect in class members' individual damages actions." Id. The Douglas court explained that, when it gave "res judicata effect" to the Phase I approved findings, Engle III, 945 So.2d at 1269, it meant claim preclusion, not issue preclusion. Douglas, 110 So.3d at 432. The Douglas court stated that claim preclusion prevents the same parties from relitigating the same cause of action. Id. Issue preclusion prevents the parties from relitigating "the same issues that were litigated and actually decided in a second suit involving a different cause of action." Id. at 433. The Douglas court ruled that the individual Engle actions involved the same causes of action. Id. The Douglas court stated, "[T]o decide here that we really meant issue preclusion even though we said res judicata in Engle would effectively make the Phase I findings regarding the Engle defendants' conduct useless in individual actions." Id. And the Douglas court concluded that the tobacco companies "do not have the right to have issue preclusion, as opposed to res judicata, apply to the Phase I findings." Id. at 435.

         In Walker, we held that giving res judicata effect to the findings of the jury in Engle did not violate the rights of the tobacco companies to due process. Walker, 734 F.3d at 1280-81. R.J. Reynolds had appealed the jury verdicts in favor of two smokers after the district courts instructed the juries that R.J. Reynolds sold defective cigarettes and was negligent. Id. at 1286. We explained that we were obligated to give "full faith and credit to the decision in Engle, as interpreted in Douglas, " unless it "would arbitrarily deprive R.J. Reynolds of its property without due process of law." Id. at 1287. We stated that no court "has ever held that due process requires application of the federal common law of issue preclusion, " and we did not decide whether it does. Id. at 1289. We concluded that, even if due process requires that an issue be actually decided, the Florida Supreme Court ruled in Douglas that the approved findings from Phase I concerned conduct that is common to all class members and established negligence and defect elements of the class members' claims. Id. We concluded that the "actually decided" requirement was satisfied and that it is "no concern of ours" what the Florida Supreme Court calls the "relevant doctrine." Id.

         In this appeal, R.J. Reynolds and Philip Morris challenge a jury verdict in favor of Earl Graham, as personal representative of the estate of his deceased wife, Faye Graham, a member of the Engle class. Mr. Graham filed an individual Engle action in the district court against R.J. Reynolds, Philip Morris, and other defendants later dismissed. He alleged that his wife developed lung cancer and died because of her addiction to cigarettes manufactured by R.J. Reynolds and Philip Morris. He asserted claims of strict liability, breach of warranty, negligence, fraudulent concealment, and conspiracy to fraudulently conceal.

         Under the Engle framework articulated in Douglas, the jury was not asked to find that the cigarettes Faye Graham smoked were defective or that the tobacco companies were negligent. Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261, 1273 (11th Cir. 2015), reh'g en banc granted, op. vacated, 811 F.3d 434 (11th Cir. 2016). The district court treated those findings as having already been established. Id. For the claims of negligence and strict liability, the jury was asked to determine only whether Faye Graham was a member of the Engle class and whether smoking cigarettes manufactured by R.J. Reynolds or Philip Morris "was a legal cause" of Faye Graham's injuries. Id. The district court instructed the jury that, to find legal causation, Graham's addiction to cigarettes must have "directly and in natural and continuous sequence produced or contributed substantially to producing" her injuries.

         The jury found for Graham on the claims of strict liability and negligence. Id. The jury awarded Graham $2.75 million in damages and determined that Faye Graham was 70 percent at fault, R.J. Reynolds was 20 percent at fault, and Philip Morris was 10 percent at fault. Id. at 1273-74. The district court entered judgment against R.J. Reynolds for $550, 000 and against Philip Morris for $275, 000. Id. at 1274. The district court denied the tobacco companies' motion for judgment as a matter of law. Id. Theresa Graham later replaced Earl Graham as personal representative of the estate.

         A panel of this Circuit reversed the judgment of the district court. Id. at 1285. The panel held that the Engle findings of strict liability and negligence are preempted by federal law. Id. We later granted the petition for rehearing en banc filed by Graham and vacated the panel opinion. Graham, 811 F.3d at 434-35. In addition to briefing the preemption issue, we allowed the parties to brief whether giving effect to the jury's findings in Engle would "violate the tobacco companies' rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution notwithstanding the panel's holding in Walker." The Florida Supreme Court has since ruled that federal law does not preempt "state tort" actions against the tobacco companies and that, even if federal law preempted a ban on the sale of cigarettes, the Engle Phase I findings do "not amount to . . . a ban" that might conflict with federal law. R.J. Reynolds Tobacco Co. v. Marotta, No. SC16-218, 2017 WL 1282111, at *9 (Fla. Apr. 6, 2017).

         II. STANDARD OF REVIEW

         We review de novo the denial of a motion for judgment as a matter of law. Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc). We also review de novo questions of constitutional law, Nichols v. Hopper, 173 F.3d 820, 822 (11th Cir. 1999), and whether federal law preempts a state law claim, Atwater v. Nat'l Football League Players Ass'n, 626 F.3d 1170, 1179 (11th Cir. 2010).

         III. DISCUSSION

         We divide our discussion in two parts. First, we explain why giving full faith and credit to the Engle jury findings of negligence and strict liability does not deprive R.J. Reynolds and Philip Morris of property without due process of law. Second, we conclude that the Engle jury findings of negligence and strict liability are not preempted by federal law.

         A. Giving Preclusive Effect to the Negligence and Strict Liability Findings Does Not Violate Due Process.

         The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to "give preclusive effect to a state court judgment to the same extent as would courts of the state in which the judgment was entered, " Kahn v. Smith Barney Shearson Inc., 115 F.3d 930, 933 (11th Cir. 1997) (quoting Battle v. Liberty Nat'l Life Ins. Co., 877 F.2d 877, 882 (11th Cir. 1989)), subject to the requirements of the Due Process Clause, see Kremer v. Chem. Const. Corp., 456 U.S. 461, 481 (1982). R.J. Reynolds and Philip Morris argue that the Due Process Clause mandates that an issue be actually decided in one case before it is given preclusive effect in another. They argue that relying on the approved jury findings in individual actions by Engle members is an application of issue preclusion and that the Florida courts did not actually decide issues of strict liability and negligence for all class members. They argue that by abandoning the "actually decided" requirement, the Florida courts abrogated a fundamental protection against arbitrary deprivations of property in violation of the Due Process Clause. See Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994).

         We need not determine whether the Due Process Clause requires that an issue be actually decided in an earlier case before the judgment from that case is given preclusive effect on that issue. We will assume, without deciding, that the "actually decided" requirement is a fundamental requirement of due process under Fayerweather v. Ritch, 195 U.S. 276 (1904). Even with that assumption, no violation of due process occurred when the district court gave the Engle findings preclusive effect. Based on our review of the Engle proceedings, we are satisfied that the Engle jury actually decided common elements of the negligence and strict liability of R.J. Reynolds and Philip Morris.

         The Florida Supreme Court made clear in Douglas that the Engle jury decided common elements of the negligence and strict liability of the tobacco companies for all class members. And for that reason, the Florida Supreme Court explained that the findings were binding in individual Engle actions. It stated, "Because these findings go to the defendants' underlying conduct, which is common to all class members and will not change from case to case, we held that these approved 'Phase I common core findings . . . will have res judicata effect' in class members' 'individual damages actions.'" Douglas, 110 So.3d at 428 (alteration in original) (quoting Engle III, 945 So.2d at 1269).

         The Florida Supreme Court rejected the same argument that R.J. Reynolds and Philip Morris make here about what the Engle jury decided. R.J. Reynolds and Philip Morris asserted that some of the evidence presented at the Engle trial applied to specific brands of cigarettes. They argued that, although the Engle jury found that the tobacco companies "place[d] cigarettes on the market that were defective and unreasonably dangerous, " the jury did not necessarily find that all cigarettes the defendants placed on the market were defective and unreasonably dangerous. The Florida Supreme Court rejected this argument and stated that "this Court in Engle necessarily decided that the approved Phase I findings" are "specific enough to establish a causal link between their conduct and damages to individual plaintiffs who prove injuries caused by addiction to smoking the Engle defendants' cigarettes." Id. That is, the Phase I findings establish the causal link between the tobacco companies' conduct and the class members' injuries because the companies acted wrongfully toward all of the class members. Whether that conduct was the legal cause of the individual class members' injuries, and whether the individual class members were entitled to damages, was left for later individual trials.

         After reviewing the Engle trial record, we are satisfied that the Florida Supreme Court determined that the Engle jury found the common elements of negligence and strict liability against Philip Morris and R.J. Reynolds. Both companies admit that the smokers presented common "proof that the Engle defendants' cigarettes were defective because they are addictive and cause disease" in addition to brand-specific evidence. Id. at 423. In two days of closing arguments, the smokers' attorneys recounted the ample body of evidence that smoking cigarettes causes disease without focusing on the differences in the designs of various brands. The trial court instructed the jury to "determine 'all common liability issues' for the class concerning 'the conduct of the tobacco industry.'" Id. Moreover, the jury's answers on the verdict form, when read together with the entire record, were consistent with the general theories that the tobacco companies' cigarettes are defective and the sale of their cigarettes is negligent because all of those cigarettes cause disease and are addictive.

         The first two questions on the verdict form are most naturally read to apply to all cigarettes manufactured by the tobacco companies. Question 1 asked whether "smoking cigarettes cause one or more of the following diseases or medical conditions." The jury answered "yes" to 20 of 23 diseases. This question does not admit of any limitation, nor did the accompanying jury instruction, and its natural interpretation is that it was asking about all cigarettes manufactured by the tobacco companies, not just some. Similarly, question 2 asked whether "cigarettes that contain nicotine [are] addictive or dependence producing, " and the jury answered "yes." The evidence at trial was that nicotine, and not some other ingredient, made cigarettes addictive. In closing arguments, the tobacco companies' counsel told the jury that the question should be understood to inquire whether "all cigarettes that contain nicotine [are] addictive or dependence-producing, " not whether there is "one cigarette or a brand of cigarettes or two brands of cigarettes" that are addictive.

         The strict liability and negligence questions presented to the jury used the same unmodified noun-"cigarettes"-that was used to refer to all cigarettes manufactured by the tobacco companies in questions 1 and 2. The strict liability interrogatory asked whether "one or more of the defendant tobacco companies place[d] cigarettes on the market that were defective and unreasonably dangerous, " and the negligence interrogatory inquired whether the smokers had "proven that one or more of the defendant tobacco companies failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances." The jury answered "yes" to both questions for R.J. Reynolds and Philip Morris. When asked about strict liability, the jury found that R.J. Reynolds and Philip Morris had sold defective cigarettes "both before and after July 1, 1974, " and, with respect to the negligence claim, that they had acted negligently by selling, manufacturing, and distributing cigarettes "both before and after July 1, 1969." That the jury found that these tobacco companies' tortious conduct swept across both time periods is consistent with a general theory of liability that applied to all their cigarettes.

         After the jury returned a verdict in favor of the class on all counts, the trial court ruled that there was sufficient evidence to support those verdicts, including negligence and strict liability, and cited evidence that applied to all of the cigarettes made by the tobacco companies. For example, it stated, "The evidence more than sufficiently proved that nicotine is an addictive substance which when combined with other deleterious properties, made the cigarette unreasonably dangerous." Engle, 2000 WL 33534572, at *2. The only way to make sense of these proceedings is that the Florida courts determined that the Engle jury actually decided issues common to the class, and the district court did not abrogate a protection against arbitrary deprivations of property in affording the Phase I jury's findings preclusive effect in Graham's case.

         R.J. Reynolds and Philip Morris argue that if the Florida Supreme Court had determined that the Engle jury actually decided common elements of negligence and strict liability for all class members, it would not have used the term "claim preclusion" in Douglas to refer to the preclusive effect of the jury findings and thereby evade the "actually decided" requirement, but we disagree. The Florida Supreme Court explained that issue preclusion applies in actions involving different causes of action and claim preclusion applies in actions involving the same causes of action. Douglas, 110 So.3d at 432-33. And in explaining the differences between claim preclusion and issue preclusion, the Florida Supreme Court reiterated that the Engle jury made findings about the tobacco companies' conduct that applied to all class members. It said, "No matter the wording of the findings on the Phase I verdict form, the jury considered and determined specific matters related to the [Engle] defendants' conduct. Because the findings are common to all class members, [individual plaintiffs are] entitled to rely on them . . . ." Id. at 433 (alterations in original) (quoting Martin, 53 So.3d at 1067).

         The terminology employed by the Florida Supreme Court was unorthodox, but "[i]n determining what is due process of law, regard must be had to substance, not to form." Fayerweather, 195 U.S. at 297. The Supreme Court of the United States has acknowledged that "[t]he preclusive effects of former adjudication are discussed in varying and, at times, seemingly conflicting terminology, attributable to the evolution of preclusion concepts over the years." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). As long as the state proceedings "satisf[ied] the minimum procedural requirements" of due process, Kremer, 456 U.S. at 481, what the Florida Supreme Court "calls the relevant doctrine . . . is no concern of ours, " Walker, 734 F.3d at 1289.

         Apart from their argument that the jury did not actually decide common issues of negligence and strict liability, R.J. Reynolds and Philip Morris do not deny that they were afforded due process. That is, they do not contend that they were denied notice or an opportunity to be heard, the central features of due process. See Fuentes v. Shevin, 407 U.S. 67, 80 (1972). The Florida courts provided them notice that the jury findings would establish the "conduct elements of the class's claims." Douglas, 110 So.3d at 429. And the year-long trial provided them "a full and fair opportunity to litigate the issues of common liability in Phase I." Walker, 734 F.3d at 1288. Both tobacco companies seized that opportunity, presenting "testimony that cigarettes were not addictive and were not proven to cause disease and that they had designed the safest cigarette possible." Douglas, 110 So.3d at 423. And they continue to contest liability in individual actions by class members, in which new juries determine issues of individual causation, apportionment of fault, and damages. Id. at 430; Engle III, 945 So.2d at 1254.

         The Due Process Clause does not require a state to follow the federal common law of res judicata and collateral estoppel. "State courts are generally free to develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes." Richards v. Jefferson Cty., Ala., 517 U.S. 793, 797 (1996). For example, a state might allow offensive, non-mutual collateral estoppel. E.g., In re Owens, 532 N.E.2d 248, 252 (Ill. 1988). And courts, both state and federal, frequently manage class actions by splitting them into separate phases. See generally William B. Rubenstein, Newberg on Class Actions §§ 10.6, 11.3 (5th ed.). Engle is not the first time that "a defendant's common liability [was] established through a class action and given binding effect in subsequent individual damages actions." Douglas, 110 So.3d at 429 (collecting cases); see also Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1239 (11th Cir. 2016) (discussing several "tools to decide individual damages" in a class action, including "(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; [and] (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages" (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001))). The Due Process Clause requires only that the application of principles of res judicata by a state affords the parties notice and an opportunity to be heard so as to avoid an arbitrary deprivation of property. Fuentes, 407 U.S. at 80.

         We recognize that the Engle Court defined a novel notion of res judicata, but we cannot say that the substance of that doctrine or its application in these trials was so unfair as to violate the constitutional guarantee of due process. "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation, " Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961), and our review of the record establishes that the tobacco companies had notice that the Engle trial involved common evidence and theories of negligence and strict liability that applied to all cigarettes manufactured by all tobacco companies and sold to all members of the class during the relevant periods. The tobacco companies were given an opportunity to be heard on the common theories in a year-long trial followed by an appeal to the Florida Supreme Court and later individual trials and appeals on the remaining issues of proximate causation, comparative fault, and damages. See Engle III, 945 So.2d at 1254-56.

         Contrary to the dissent's view, see Dissenting Op. of Tjoflat, J., at 90-91, no tobacco company can be held liable to any smoker without proof at trial that the smoker belongs to the Engle class, that she smoked cigarettes manufactured by the company during the relevant class period, and that smoking was the proximate cause of her injury. Every tobacco company must also be afforded the opportunity to contest the smokers' pleadings and evidence and to plead and prove the smokers' comparative fault. Indeed, in this appeal, after the district court instructed it, the jury reduced Graham's damages award for his deceased spouse's comparative fault. And in other Engle progeny litigation, tobacco companies have won defense verdicts. E.g., Suarez v. R.J. Reynolds Tobacco Co., No. 09-79584- CA-01 (11th Fla. Cir. Ct., Nov. 25, 2015) (final judgment). "[S]tate proceedings need do no more than satisfy the minimum procedural requirements" of due process to receive full faith and credit. Kremer, 456 U.S. at 481. The record in this appeal establishes that R.J. Reynolds and Philip Morris were afforded the protections mandated by the Due Process Clause.

         "Under the Full Faith and Credit Act, federal courts generally should respect state court judgments, even where erroneous." Lops v. Lops, 140 F.3d 927, 938 (11th Cir. 1998); see also Hickerson v. City of New York, 146 F.3d 99, 107 (2d Cir. 1998) ("[T]o second-guess that court's determination of this issue would violate the full faith and credit statute."). We decide only whether applying Florida law in this case violates due process. We do not endorse or condemn the use of a class action in Phase I of the Engle litigation. Nor do we endorse or condemn the explication of res judicata by the Supreme Court of Florida. We say only that applying Florida law in this trial did not violate the tobacco companies' rights to due process of law.

         R.J. Reynolds and Philip Morris argue that we are not compelled to give full faith and credit to Douglas because Graham was not a party in Douglas and Florida law does not allow non-mutual issue preclusion. Because state courts would not be bound by the Douglas decision in this circumstance, they argue, we are also not bound. But this argument is a straw man.

         We do not give full faith and credit to the decision in Douglas; we instead give full faith and credit to the jury findings in Engle. The Florida Supreme Court in Engle interpreted those findings to determine what the jury actually decided, and the Florida Supreme Court in Douglas decided a matter of state law when it explained the preclusive effect of the Engle jury's Phase I findings. We are bound by the decisions of state supreme courts on matters of state law when we exercise diversity jurisdiction, subject to the constraints of due process. See Walker, 734 F.3d at 1284. We conclude that giving preclusive effect to the findings of negligence and strict liability by the Engle jury in individual actions by Engle class members against R.J. Reynolds and Philip Morris does not deprive these tobacco companies of property without due process of law.

         B. Federal Law Does Not Preempt the Jury Findings of Negligence and Strict Liability.

         "The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to pre-empt state law." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368 (1986). "State action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (citations omitted). Conflicts arise in two ways: "when compliance with both federal and state regulations is impossible or when the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, '" Hillman v. Maretta, 133 S.Ct. 1943, 1950 (2013) (citation omitted) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). "'[T]he purpose of Congress is the ultimate touchstone' in every preemption case." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)). "Congress' intent, of course, primarily is discerned from the language of the pre-emption statute and the 'statutory framework' surrounding it." Id. at 486 (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).

         This appeal presents an issue of conflict preemption. A party asserting conflict preemption faces a high bar:

[I]n all pre-emption cases, and particularly in those in which Congress has "legislated . . . in a field which the States have traditionally occupied, " . . . we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (second and third alteration in original) (quoting Lohr, 518 U.S. at 485).

         R.J. Reynolds and Philip Morris argue that the obstacle form of conflict preemption defeats the findings of negligence and strict liability in Engle. They argue that this Circuit avoided finding a violation of due process in Walker by construing the Engle findings as embracing a theory that all cigarettes manufactured by the tobacco companies are defective and the sale of all of those cigarettes is negligent because all of those cigarettes are dangerous-that is, that all of those cigarettes are addictive and cause disease. Federal law, they contend, preempts state law claims premised on the theory that all of the cigarettes manufactured by the tobacco companies are inherently dangerous.

         We disagree. We conclude that federal tobacco laws do not preempt state tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco companies. In other words, federal law does not preempt the Engle jury findings.

         Congress has enacted six tobacco-specific laws that are relevant to this appeal. In 1965, Congress passed the Federal Cigarette Labeling and Advertising Act, Pub. L. No. 89-92, 79 Stat. 282, which made it unlawful to sell cigarettes without the following warning label: "Caution: Cigarette Smoking May Be Hazardous to Your Health." Id. § 4, 79 Stat. at 283. And the Act prohibited requiring any additional "statement relating to smoking and health" on cigarette packages or in cigarette advertising. Id. § 5, 79 Stat. at 283. Congress then passed the Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87, which changed the language of the warning label to "Warning: The Surgeon General Has Determined That Smoking Is Dangerous to Your Health." Id. § 2, 84 Stat. at 88. The Act made it "unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." Id., 84 Stat. at 89. And it amended the preemption provision in the 1965 Act by adding the following statement: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." Id., 84 Stat. at 88 (codified as amended at 15 U.S.C. § 1334(b)). Congress again amended the Labeling Act by passing the Comprehensive Smoking Education Act, Pub. L. No. 98-474, 98 Stat. 2200 (1984). The Act replaced the warning with a series of warnings that must appear on cigarette packages and advertisements on a rotating basis. Id. § 4, 98 Stat. at 2201-03. The Act also required the Secretary of Health and Human Services to "establish and carry out a program to inform the public of any dangers to human health presented by cigarette smoking." Id. § 3, 98 Stat. at 2200. The Alcohol and Drug Abuse Amendments of 1983, Pub. L. No. 98-24, 97 Stat. 175, required the Secretary of Health and Human Services to issue a report to Congress every three years on, among other things, "the addictive property of tobacco." Id. § 2, 97 Stat. at 178. The Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub. L. No. 99-252, 100 Stat. 30, regulates smokeless tobacco products. The Act requires that a warning appear on smokeless tobacco products, id. § 3, 100 Stat. at 30-32, prohibits the advertising of smokeless tobacco products "on any medium of electronic communications subject to the jurisdiction of the Federal Communications Commission, " id. § 3(f), 100 Stat. at 32, and requires the Secretary of Health and Human Services to create a program to inform the public about the health effects of using smokeless tobacco products, id. § 2, 100 Stat. at 30. Last, the ADAMHA Reorganization Act, Pub. L. No. 102-321, 106 Stat. 323 (1992), conditions certain block grants on states making it unlawful "for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18." Id. § 202, 106 Stat. at 394 (codified at 42 U.S.C. § 300x-26(a)(1)). We do not consider the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009), because the Act does not affect actions, like the individual Engle actions, that were pending in federal or state court during its passage, id. § 4, 123 Stat. at 1782.

         Affording preclusive effect to the Engle jury findings does not frustrate the objectives of these federal laws on tobacco. The only significant requirement imposed on cigarette manufacturers by the six federal laws in question is the warning label requirement for cigarette packages and advertising. Three of the six statutes-the Federal Cigarette Labeling and Advertising Act, the Public Health Cigarette Smoking Act of 1969, and the Comprehensive Smoking Education Act- concern this warning label. Fittingly, the Labeling Act expressly preempts state laws that would impose labeling requirements. See 15 U.S.C. § 1334; Altria Grp., Inc. v. Good, 555 U.S. 70, 79 (2008). The other three statutes impose no significant requirements on cigarette manufacturers: the Comprehensive Smokeless Tobacco Health Education Act of 1986 concerns smokeless products, not cigarettes; the Alcohol and Drug Abuse Amendments imposed a requirement on the Secretary of Health and Human Services to submit reports about cigarettes; and the ADAMHA Reorganization Act conditions block grants to states.

         Contrary to R.J. Reynolds and Philip Morris's argument, the statement of purpose in the Labeling Act, 15 U.S.C. § 1331, does not preserve cigarette sales. The second listed purpose of establishing a program to "deal with cigarette labeling and advertising" states, "[C]ommerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing labeling and advertising regulations." Id. Congress sought to protect "commerce and the national economy" specifically from the effect of "diverse, nonuniform and confusing cigarette labeling and advertising" rules, id., not from more stringent regulation generally. See Altria Grp., 555 U.S. at 78-79 (explaining that the "Act's pre-emption provisions promote its second purpose" by preventing States from "enforcing rules that are based on an assumption that the federal warnings are inadequate"); Reilly, 533 U.S. at 542-43 (paraphrasing the second purpose as "to protect the national economy from interference due to diverse, nonuniform, and confusing cigarette labeling and advertising regulations"); Marotta, 2017 WL 1282111, at *7 ("Thus, Congress clearly intended to 'protect the national economy from the burden imposed by diverse, nonuniform, and confusing cigarette labeling and advertising regulations, ' but did not clearly intend to extend broad immunity from common law liability to cigarette manufacturers." (citation omitted)).

         Nothing in these six statutes reflects a federal objective to permit the sale or manufacture of cigarettes. As a result, we cannot say that Congress created a regulatory scheme that does not tolerate tort liability based on the dangerousness of all cigarettes manufactured by the tobacco companies but tolerates tort actions based on theories with a more limited scope. Cf. Altria Grp., 555 U.S. at 551 (holding that federal law did not preempt common-law fraud claim against cigarette manufacturer based on advertising of light cigarettes); Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600 (8th Cir. 2005) (holding that the Labeling Act did not preempt design defect claim against cigarette manufacturer); Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1197 (11th Cir. 2004) (holding that the Labeling Act did not preempt negligent and wanton design and manufacture claims against cigarette manufacturer). Federal law is silent both by its terms and by its operation.

         Determinations of strict liability and negligence based on the Engle findings create no conflict with a federal objective. R.J. Reynolds and Philip Morris do not contend that the Engle jury based its findings of liability on a determination that the warnings on cigarette packages and advertisements were inadequate such that the jury's findings imposed labeling requirements preempted by federal law. Rules governing the design of cigarettes or even banning the sale of cigarettes do not frustrate accomplishing a rule that requires a certain label when and if cigarettes are sold. See Hunter v. Philip Morris USA, 582 F.3d 1039, 1048 (9th Cir. 2009) (explaining that product-liability claim against cigarette manufacturer "does not present an obstacle to the congressional policy concerning the regulation of tobacco" because the federal laws "concern labeling, research and education and do not provide strong evidence of a federal policy against more stringent state regulation"); Marotta, 2017 WL 1282111, at *9 ("Strict liability and negligence claims, such as those brought . . . under Engle, do not interfere with the regulation of advertising and promotion of cigarettes and, therefore, do not clearly conflict with congressional objectives.").

         That the express-preemption provision in the Labeling Act does not cover the negligence and strict liability findings in Engle supports an inference that there is no implied preemption of those findings. See Wyeth, 555 U.S. at 574-75; Riegel v. Medtronic, Inc., 552 U.S. 312, 327 (2008). Granted, "[i]f a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress' displacement of state law still remains." Altria Grp., 555 U.S. at 76; see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 874 (2000). But, with the Federal Cigarette Labeling and Advertising Act and the Public Health Cigarette Smoking Act of 1969, in Cipollone the Supreme Court interpreted the express-preemption provision as exclusively defining the preemptive scope of the Acts:

In our opinion, the pre-emptive scope of the 1965 Act and the 1969 Act is governed entirely by the express language in § 5 of each Act. When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority, " "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. In this case, the other provisions of the 1965 and 1969 Acts offer no cause to look beyond § 5 of each Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections.

Cipollone, 505 U.S. at 517 (citations omitted) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978); Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 282 (1987) (plurality opinion)).

         The Supreme Court has explained that "in Cipollone, we engaged in a conflict pre-emption analysis of the Federal Cigarette Labeling and Advertising Act, and found 'no general, inherent conflict between federal preemption of state warning requirements and the continued vitality of state common-law damages actions.'" Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995) (citation omitted) (quoting Cipollone, 505 U.S. at 518). Although the Supreme Court considered only the 1965 and 1969 statutes in Cipollone, "[s]ince the Labeling Act's passage, Congress's basic goals have remained largely unchanged." Graham, 782 F.3d at 1277. We find nothing in the four statutes passed later that alters the preemptive scope of federal law on tobacco in a way that is relevant to this appeal.

         R.J. Reynolds and Philip Morris argue that, by passing legislation that does not ban cigarettes, Congress has established a policy of allowing the sale of tobacco products, but this argument is contrary to settled law that inaction by Congress cannot serve as justification for finding federal preemption of state law. See Wyeth, 555 U.S. at 602-03 (Thomas, J., concurring in the judgment) (collecting cases); Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002) ("History teaches us that a Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority . . . ."); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988) ("This Court generally is reluctant to draw inferences from Congress' failure to act."). "[O]therwise, deliberate federal inaction could always imply pre-emption, which cannot be. There is no federal pre-emption in vacuo, without a constitutional text or a federal statute to assert it." P.R. Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988).

         R.J. Reynolds and Philip Morris also rely on the discussion of federal law regulating cigarettes in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), but that decision does not support their argument for preemption. In Brown & Williamson, the Supreme Court considered whether the Food and Drug Administration had jurisdiction over tobacco products. Id. at 125-26. The Court held that it did not. Id. at 126. The Supreme Court reasoned that, if the Administration had jurisdiction, the Food, Drug, and Cosmetic Act would require the administration to remove cigarettes from the market. Id. at 135. The Supreme Court considered the six federal statutes that regulate cigarette labeling and concluded that Congress would not have enacted these laws if it intended the Administration to ban cigarettes. See id. at 137-38. "[T]he collective premise of these statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States." Id. at 139. The Supreme Court stated that Congress has "foreclosed the removal of tobacco products from the market" in this context, id. at 137-surmising that Congress would not have bothered to regulate a product that it intended to have removed from the market nationwide by a federal agency.

         Although federal agencies have only the authority granted to them by Congress, states are sovereign. Brown & Williamson does not address state sovereignty, and it does not consider the preemptive reach of federal legislation on tobacco. Marotta, 2017 WL 1282111 at *6 ("[W]hile Brown & Williamson held that the FDA did not have the authority to regulate tobacco products, it said nothing about the states' power to do the same."). Cipollone does.

         State governments retain their historic police powers to protect public health. See U.S. Const. Amend. X. "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 386-87 (1932) (Brandeis, J., dissenting). Over a hundred years ago, Tennessee, like some other states, passed a law making it a crime to sell cigarettes. 6 Clark Bell, Medico-Legal Studies 50-65 (1902). Although that experiment in prohibition, like so many others, failed, Tennessee did not violate the federal Constitution. In upholding the law as not infringing the power of Congress under the Commerce Clause, the Supreme Court described the cigarette ban as the type of legislation that states may enact "for the preservation of the public health or safety" under their police powers. Austin v. Tennessee, 179 U.S. 343, 349 (1900). Today, state and local governments continue to enact public health measures to respond to the dangers associated with smoking, see, e.g., Paul A. Diller, Why Do Cities Innovate in Public Health? Implications of Scale and Structure, 91 Wash. U. L. Rev 1219, 1234-35 (2014) (discussing state and local bans of flavored cigarettes passed before the Tobacco Control Act banned cigarette flavorings); Patrick Kabat, Note, "Till Naught but Ash is Left to See": Statewide Smoking Bans, Ballot Initiatives, and the Public Sphere, 9 Yale J. Health Pol'y L. & Ethics 128, 138-45 (2009) (surveying state prohibitions of smoking in public places), and to combat other public health risks, see, e.g., Cal. Health & Safety Code § 114377 (banning certain trans fats); N.Y. State Rest. Ass'n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (upholding New York City law requiring caloric disclosure on chain restaurant menus against preemption challenge); Trans Fat and Menu Labeling Legislation, Nat'l Conference of State Legislatures (Jan. 2013), http://www.ncsl.org/research/ health/trans-fat-and-menu-labeling-legislation.aspx (all Internet materials as visited July 9, 2016 and available in Clerk of Court's case file) (listing six states that had enacted menu labeling legislation as of 2010).

         Florida may employ its police power to regulate cigarette sales and to impose tort liability on cigarette manufacturers. We may not supersede the "historic police powers of the States" unless it is the "clear and manifest purpose of Congress." Wyeth, 555 U.S. at 565 (quoting Lohr, 518 U.S. at 485). And "[t]hat assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States, " Altria Grp., 555 U.S. at 77, like public health, Lohr, 518 U.S. at 475.

         R.J. Reynolds and Philip Morris would have us presume that Congress established a right to sell cigarettes based on a handful of federal labeling requirements. We decline to do so. We discern no "clear and manifest purpose" to displace tort liability based on the dangerousness of all cigarettes manufactured by the tobacco companies.

         IV. CONCLUSION

         We AFFIRM the judgments against R.J. Reynolds and Philip Morris.

          JULIE CARNES, Circuit Judge, concurring in part and dissenting in part:

         I concur in the majority opinion's decision that federal law does not preempt the jury findings in the underlying Engle litigation. As to defendants' Due Process Clause challenge, the latter presents a close question on which reasonable minds can differ. I do not disagree that the majority opinion articulates reasonable arguments in explaining why it rejects defendants' challenge. On balance, however, I agree with Judges Tjoflat and Wilson that on the particular and unusual facts of the underlying Engle litigation, its jury findings are too non-specific to warrant them being given preclusive effect in subsequent trials. Concluding that defendants' due process rights were therefore violated, I respectfully dissent as to the Majority's contrary holding.

          TJOFLAT, Circuit Judge, dissenting:

         In 1998, the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida held a trial-Phase I of the Engle class action-to determine whether the largest domestic tobacco companies (the "Engle defendants") engaged in conduct proscribed by Florida tort law.[1] The Phase I jury found that each of the Engle defendants engaged in nine different kinds of proscribed conduct.[2]

         Eight years later, the Florida Supreme Court "retain[ed] the jury's Phase I findings other than those on the fraud and intentional infliction of emotion distress claims." Engle v. Liggett Group, Inc. (Engle III), 945 So.2d 1246, 1269 (Fla. 2006). It then instructed progeny courts tasked with adjudicating causation and damages in individual class-member tort actions to give "res judicata effect" to the retained findings. Id. at 1254.

         But progeny courts had trouble understanding Engle III's res judicata instruction. For starters, issuing such a mandate was strange because courts that render a judgment ordinarily do not attempt to predetermine the res judicata effect of that judgment.[3] Courts tasked with determining whether to enforce a rendering court's judgment make those determinations themselves.[4] On top of that, the Phase I findings only established that the Engle defendants engaged in proscribed conduct; the findings revealed nothing about what the defendants actually did. Thus, the findings were useless in helping plaintiffs prove, as Florida law requires, [5]that their injuries were caused by a defendant's proscribed conduct. Judge May of Florida's Fourth District Court of Appeal lamented that "parties to the tobacco litigation [were left to] . . . play legal poker, placing their bets on questions left unresolved by Engle." Brown R.J. Reynolds Tobacco Co. v. Brown (Jimmie Lee Brown II), 70 So.3d 707, 720 (Fla. 4th Dist. Ct. App. 2011) (May, J., concurring).

         Seven years after it had issued its res judicata mandate, the Florida Supreme Court finally stepped in to explain it. The Court conceded that the Phase I findings were "useless in individual actions." Philip Morris USA, Inc. v. Douglas (Douglas III), 110 So.3d 419, 433 (Fla. 2013) (emphasis added). Nevertheless, by retaining certain Phase I findings and instructing progeny courts to give those findings res judicata effect in Engle III, the Court claimed it had intended to allow class members to simply "assume[]" "injury as a result of the Engle defendants' conduct." Id. at 430 (emphasis added). Thus, regardless of the tort a class member alleged, she only needed to prove that she was injured as a result of "'smoking cigarettes' manufactured by [a defendant]" to recover. Id. at 426. In effect, then, the Douglas III Court proscribed the very act of selling cigarettes, albeit under color of traditional tort law. So long as a defendant's sale of cigarettes caused a plaintiff's injury-that is, so long as a plaintiff was injured by smoking cigarettes-the plaintiff had no need to identify, for example, the defendant's negligent conduct or unreasonably dangerous product defect.

         This case was litigated pursuant to the state law set forth in Douglas III. Earl Graham, as personal representative of the estate of Faye Graham, alleged in his complaint all of the torts for which Engle III had retained findings. Yet, he was never required to identify any proscribed conduct other than the sale of cigarettes. With respect to both negligence and strict liability, the District Court instructed the jury to determine only "whether smoking cigarettes manufactured by [the] Defendant was a legal cause of Faye Graham's death."

         The Majority purport to give effect to the "state law" created in Douglas III. Ante at 30. They recognize that it is "unorthodox, " "novel, " and amounts to an irrebuttable presumption of liability. Id. at 25, 27, 28. Yet, they believe that due process is flexible enough to accommodate such a law. Id. at 29. It is not.[6]

         This is not to say, as the Majority imply, that I would "require a state to follow the federal common law of res judicata and collateral estoppel." Id. at 26. I agree that states are free to fashion "novel" and even "unorthodox" laws. Id. at 25, 27. I do not agree, however, that federal courts must apply such laws when doing so deprives litigants of an opportunity to be heard on essential elements of their case.[7] Id. at 29-30. I also disagree with the Majority's conclusion that Florida's proscribing the sale of cigarettes is not preempted by federal law.

         To navigate the surprising evolution from Phase I's nonprobative findings of fact to Douglas III's sweeping new tort law, I start from the beginning of the Engle litigation and proceed painstakingly to the end. As the Table of Contents indicates, I begin with Phase I of Engle and proceed through Walker v. R.J. Reynolds Tobacco Co. (Walker II), 734 F.3d 1278 (11th Cir. 2013), and to the opinion the Court issues today. Along the way, I comment on the decisions in light of relevant legal principles. My commentaries are set aside by conspicuous section breaks or headings, and my preemption discussion is set within its own part as it is more legally complex than the basic principles of procedural fairness that animate the rest of the opinion.

         As I detail below, Engle-progeny opinions examining the same basic legal issues vary drastically in both their analysis and recitation of the facts. The Majority, for example, portray Engle III differently from the way all other courts, including the Florida Supreme Court, see that case.[8] Unfortunately, the one theme that remains constant throughout-with a few exceptions-is that Engle-progeny courts have rested their thumbs on the scales to the detriment of the unpopular Engle defendants.

         I dissent for eight reasons. First, I reject the Majority's false narrative of Engle III. Second, in injecting their false narrative into the case, the Majority improperly act as advocates and relieve the plaintiff of his burden of proving preclusion. Third, the Majority fail to provide the defendants with an opportunity to be heard on the accuracy and applicability of their narrative. Fourth, even if that narrative were not false, Engle III, as portrayed by the Majority, would not be entitled to full faith and credit because its key holdings were rendered without affording the Engle defendants notice or opportunity to be heard. Fifth, and most importantly, we cannot deprive R.J. Reynolds ("RJR") and Philip Morris of their property because they have never been afforded an opportunity to be heard on whether their unreasonably dangerous product defect(s) or negligent conduct caused Ms. Graham's death. Sixth, we cannot give effect to a state law that amounts to an unreasonable and arbitrary presumption of liability.[9] Seventh, we cannot give effect to a state law that operates to deprive the defendants of their Seventh Amendment right to a jury trial on contested and material elements of the claims against them. Eighth, the way in which the Engle-progeny litigation has been carried out has resulted in a functional ban on cigarettes, which is preempted by federal regulation premised on consumer choice.

         Table of Contents

         I. Procedural History of Engle…………………….…….……………………54

         A. Certifying the Engle Class…………………………..………………54

         B. Engle Trial to Proceed in Three Phases……………………..………57

         1. Phase I…………………………………………………..…….58

         2. Phase II……………………………………………………….67

         3. Posttrial Motions……………………...………………………72

         C. Appeal to the Third District Court of Appeal in Engle II…………...77

         D. Petition for Review to the Florida Supreme Court in Engle III……..81

         II. What "Res Judicata" Traditionally Means…………………….... ........ 89

         A. Res Judicata 101: The Elements of Issue and Claim Preclusion……92

         B. Res Judicata 102: Procedures to Invoke Issue and Claim Preclusion……………………………99

         III. Engle III Instructed Courts to Disregard Traditional Res Judicata Law so as to Hold the Defendants Liable without Regard to the Phase I Findings ....................................................................................................... 107

         A. The U.S. District Court for the Middle District of Florida in Brown I Rejected the Florida Supreme Court's Interference with Its Duties as a Recognizing Court……...……………………………..……….109

         B. In Brown II, We Upheld the District Court's Decision as a Recognizing Court to Apply Florida's Traditional Issue-Preclusion Doctrine to the Phase I Findings…..……………………………….131

         C. The Florida District Courts of Appeal Rejected Brown II on the Basis of Engle III's Instruction…………...136

         1. The Martin I Circuit Court Concluded That Engle III's Instruction Required It to Hold the Defendants Liable If the Plaintiff Simply Proved Class Membership Irrespective of the Phase I Findings……….…….………..……………………..137

         2. The First District Court of Appeal in Martin II Agreed That Engle III's Instruction Required It to Hold the Defendants Liable to all Class Members Irrespective of the Phase I Findings...…141

         3. The Fourth District Court of Appeal in Jimmie Lee Brown II Held That Engle III's Instruction Meant Issue Preclusion but That the Plaintiff Did Not Need to Identify a Specific Defect or Negligent Conduct…………………………………..……….153

         D. In Light of Martin II and Jimmie Lee Brown II, the Middle District of Florida in Waggoner Ruled That the Preclusive Application of the Phase I Findings to Hold the Defendants Liable Would Not Violate Due Process………….……………………………………………..160

         E. The Second District Court of Appeal in Douglas II Accepted Martin II's Reasoning, But Certified the Due Process Question to the Florida Supreme Court…………………………………………………..…170

         IV. The Florida Supreme Court in Douglas III Held That the Engle III Court Had (1) Implicitly Determined That the Phase I Findings Were Full-Blown Liability Determinations and (2) Implicitly Entered Judgment Against All Defendants on Behalf of All Class Plaintiffs ……………..………….…..176

         V. The Walker Panel Effectively Rewrote and then Gave Full Faith and Credit to Douglas III Before Issuing a New Opinion That Gave Full Faith and Credit to Engle III, Yet Left the Original Opinion's Inapposite Reasoning Intact... …………………………………………………………………....211

         VI. The Majority Repeat and Add to the Walker Panel's Errors………..…….234

         VII. The Functional Ban on Cigarettes is Preempted by Federal Law………...247

         A. Obstacle Preemption…………………………………………… ..... 250

         B. Federal Regulation of Tobacco Consumers' Ability to Choose…...253

         C. Florida Has Imposed a Duty Not to Sell Cigarettes Contrary to Federal Law………………………...…258

         D. The Majority Misinterpret the Statutory Framework of Tobacco Regulation…………………………….264

         Conclusion ........ ………………………………………...…………………… ...... 265

         I.

         PROCEDURAL HISTORY OF ENGLE

         The Engle litigation epic began in 1994 when six plaintiffs filed a putative class action in the Circuit Court for Miami-Dade County, Florida against the Engle defendants seeking over $100 billion in both compensatory and punitive damages for injuries allegedly caused by smoking cigarettes. Walker II, 734 F.3d at 1278 . The plaintiffs asserted an array of claims, including "strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress." Liggett Grp. Inc. v. Engle (Engle II), 853 So.2d 434, 441 (Fla. 3d Dist. Ct. App. 2003).

         A. Certifying the Engle Class

         On May 5, 1994, the plaintiffs moved the Circuit Court pursuant to Florida Rule of Civil Procedure 1.220(b)(3)[10] to certify a class consisting of all smokers in the United States and their survivors. They estimated that the class would include "in excess of one million addicted smokers." R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41 (Fla. 3d Dist. Ct. App. 1996). The defendants opposed the motion, arguing that it failed to establish the "predominance" and "superiority" requirements imposed by Rule 1.220(b)(3). Id. at 39. They further argued that a nationwide class would be unmanageable and would unduly burden Florida's courts and taxpayers. Id. at 41-42. The Circuit Court disagreed. It granted the plaintiffs' motion and certified a nationwide class.

         The defendants appealed the decision to the District Court of Appeal, Third District.[11] Id. at 39. The Third District found that the plaintiffs' motion satisfied the Rule 1.220(b)(3) "predominance" requirement but agreed with the defendants that a nationwide class was too large in that it "would unduly burden Florida courts and taxpayers, " and would "require the sustained attention of all . . . circuit judges in Dade County, if not the entire state." Id. at 40, 41. After the nationwide class had been rejected, the plaintiffs responded with their fallback position-a statewide class, which, they later represented, would consist of roughly 40, 000 members.

         Appeased, the Court affirmed the certification order on January 31, 1996, but limited the class to "[a]ll Florida citizens and residents, " "and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." Id. at 40- 42. In their motion for rehearing, the defendants rejected a 40, 000-claimants estimate, insisting that a statewide class would consist of an unmanageable host of hundreds of thousands of class members. Nevertheless, the Court denied their motion on May 10, 1996, and the Florida Supreme Court denied review on October 2, 1996. R.J. Reynolds Tobacco Co. v. Engle, 682 So.2d 1100 (Fla. 1996). Three months later, plaintiffs' counsel wrote thousands of Florida physicians informing them of the class action and stating that the class included "well over one-half million" people.

         By the end of 1997, as the case proceeded through its pretrial stages, the class had indeed grown to hundreds of thousands of claimants.[12] In light of the class size and plaintiffs' counsel's concession that addiction to nicotine was an individual issue, the Engle defendants moved to decertify the class. The Court heard the motion on January 15, 1998.[13] It denied the motion with this comment:

I believe changes have occurred. I also believe that the case may be unmanageable. I do have substantial reservations regarding the class action. However, I'm going to deny [defendants'] motion. I do implore the Third District Court of Appeal to accept review on an expedited basis and to take into consideration a lot of what [defendants] have covered.

         The defendants appealed the Court's ruling to the Third District. That Court dismissed the appeal for lack of jurisdiction, but stated that the defendants had a right to obtain review of "the propriety of the order by plenary appeal from any adverse final judgment." Engle II, 853 So.2d at 443.

         B. Engle Trial to Proceed in Three Phases

         In February 1998, the Circuit Court announced that it had developed a tentative three-phase trial plan to manage the litigation.[14] Engle III, 945 So.2d 1246, 1256 (Fla. 2006). In Phase I, the Court would conduct a jury trial of the issues common to the entire statewide class. The plan defined the issues as those "which form integral elements of the claims" the named plaintiffs were asserting for themselves and the members of their class.[15] The jury would evaluate evidence exclusively related to the defendants' conduct and would determine whether such conduct rendered the defendants answerable in punitive damages.

         If the jury found that the defendants had engaged in the tortious conduct alleged, the litigation would proceed to Phase II-A to determine whether that conduct caused the class representatives' injuries. In Phase II-B, the same jury would also decide whether the entire class was entitled to punitive damages, and, if so, make a "lump-sum" award. Engle III, 945 So.2d at 1257. Finally, in Phase III, new juries would try the individual class members' claims-that the Engle defendants' tortious conduct caused their harm. Id. at 1268. The punitive damages, if any, awarded in Phase II-B would be divided among the class members who prevailed.

         1. Phase I

         The Phase I trial commenced on July 6, 1998. In accordance with the plan, the Phase I jury considered evidence pertaining to the defendants' conduct between 1953 and 1994 and to whether cigarettes manufactured during that time were addictive and caused diseases. Over the course of the yearlong trial, the plaintiffs presented evidence that was sweeping in its scope, spanning decades of tobacco-industry history. Ante at 5-8. Witnesses testified that cigarettes were addictive and could cause a variety of diseases, including lung cancer. Douglas III, 110 So.3d at 423 (Fla. 2013). Witnesses also described differences among cigarette brands, filtered and nonfiltered, in terms of their tar and nicotine levels and the way in which they were designed, tested, manufactured, advertised, and sold. Id. at 423-24.

         With such wide-ranging evidence and disparity among cigarettes, the defendants registered early on their concerns that the jury would have a hard time sorting through the evidence and connecting it to particular defendants and particular assertions of wrongdoing. They repeatedly argued, for example, "that [the] wide spectrum of views . . . represented by counsel . . . [make it] hard [to] figur[e] out where we're going as a common question." The defendants later summarized their concerns:

The Court subjected defendants to an artificial proceeding, not a real trial, in which the jury was inundated with evidence of abstract "misconduct" unconnected to any real person's knowledge, choices, or other circumstances-thus setting the stage for an enormous punitive award in Phase II-B. Plaintiffs were allowed to "mix and match" their evidence, creating a hypothetical plaintiff who was exposed to and relied on every alleged misstatement over the course of nearly 50 years, smoked every band of cigarette, and suffered every asserted disease plus "emotional distress."

         Undeterred, the Court responded that it would make sense of the scattershot theories and evidence by means of jury instructions at the end of Phase I.

         In March 1999, the plaintiffs rested, and the defendants moved the Court for decertification of the class and a directed verdict on all counts. After eight months of trial, the defendants pressed the Court to address the manageability problems that had been looming since the beginning. Although the plaintiffs had, to that point, successfully urged the Court to postpone such issues until "later, " the defendants insisted that "later is here. Later is now."

         Given the jumble of evidence and theories that had been put forward, the defendants argued, the jury would be unable to match theories with evidence as required unless it was instructed with precision:

If we asked the question, Judge, can smoking cause heart disease? and they answer that yes, so what? So what? The question is going to be, did it cause this class member's heart disease? That's got to be the only significant question. It's a "so what?"
Take the easy one, the one that you could apply most meaningfully: Product defect. There is one, and we ought to be able to get a jury to give us something on product defect. If they decide in favor of the plaintiff, we can take that and we can transport it into Phase II and Phase III.
Well, when you think about that, how are you going to do that, because we have no actual plaintiff in the common issue part of this trial, all kinds of evidence has been introduced from which a jury could conceivably find that there's a defect in the product?
They might find that it has something to do with a particular filter construction; they might find that it's products with a certain amount of nicotine; they could say that it's additives, that when certain additives were put into the cigarette; they could say that it has to do with low tar, the fact that people who smoke low-tar cigarettes get a different tar level than the FTC machines, and that that's a defect.
But how are we ever going to know? And this is the easy one. Forget the fraud, misrepresentations. But how are we ever going to know on what basis the jury found the defect? Are they going to tell us on what basis they found the defect? And if we don't know on what basis they found the defect, how are we going to apply that to people in subsequent phases?
If the defect is in connection with low tar, then people who smoked high-tar cigarettes their entire lives . . . wouldn't have a claim [because] there would be no proximate cause with regard to their particular allegations. But we won't know that.
And it's uniquely caused by the nature of this trial. If this was a single smoker, we'd know the particular circumstances of that smoker. We'd know what evidence was relevant, what evidence wasn't relevant, and we would be able to look at and apply it.

         Such reasoning undergirded the defendants' motions for directed verdict as well. In those motions, the defendants argued that the plaintiffs had spread themselves too thin by sporadically referencing, while never fully substantiating, numerous theories of liability. The defendants worried that these shotgun-style allegations would unfairly disadvantage them if their motions were denied:

You take all the stuff that you think sounds bad. You say it all real fast. You say: We had 57 witnesses, and all this. And then you say: Therefore, we have a case. We have law that requires certain evidence. We have to know what to defend against, and we all have to know what to put on that verdict form.

         The plaintiffs did not confront the merits of such arguments directly, countering instead with two process-oriented arguments. First, they argued that the defendants failed to satisfy the directed verdict standard because "the burden of the defendants is an almost impossible burden. In most instances because the defendants have to convince the Court that there is not minimal but zero, zero evidence and zero inferences from the evidence that would support our claims." Second, the plaintiffs argued that the Court should defer its ruling because the law demands "that in those rare instances where the Court really doesn't feel there's enough to go to a jury, the Court should wait, " let the jury render a verdict, and then rule, so the appellate court can reinstate the jury verdict if it disagrees with the trial judge.

         Persuaded by the plaintiffs, the Court reserved ruling on the motion, [16] and the defendants went on to present their case.[17] On June 9, 1999, the parties rested, and a charge conference with counsel followed. The plaintiffs conceded that there were "many hundreds and hundreds" of things at issue for each claim. To account for the many theories presented, and, concomitantly, to provide the jury with the widest possible range of bases upon which to premise tortious-conduct findings, the plaintiffs proposed that the jury be instructed on eight different theories of negligence and five theories of strict liability. The defendants did not take issue with instructing the jury on an array of tortious-conduct theories. They did object, however, to the plaintiffs' proposed verdict-form questions, which were generic rather than disaggregated and specific. They warned that a verdict form that failed to specify the particular theories on which the jury based its findings could not be "meaningful[ly] imported into Phase II and Phase III":

If the jury in this case were to simply answer the question, "Have one or more of the defendants, during whatever time period, manufactured a cigarette that is defective and unreasonably dangerous?" and the answer to that is "Yes, " what in the world are we going to do with that in an individual case? We won't know what the defect was. We won't know when or during what period of time, what brand or brand style. What in the world are we going to do with that finding?[18]

         Because, the defendants argued, a generic verdict form would make it "completely impossible to import intelligently and rationally the findings from the verdict form in Phase I to any particular plaintiff in Phase II and III, " relying on such a verdict form to preclude defendants' defenses in later phases would result in a "due process violation under the U.S. Constitution as well as the Florida Constitution."

         The defendants accordingly requested a verdict form that would elicit specific findings that class members could later allege, in a meaningful way and in accordance with due process, in their Phase III complaints. See Walker II, 734 F.3d at 1282 (The defendants "requested that the trial court submit to the jury a . . . detailed verdict form that would . . . ask[] the jury [among other things] to identify the brands of cigarettes that were defective."). Plaintiffs repeatedly opposed such requests, arguing that specificity burnished a slippery slope to complexity and delay: "[O]nce you start [being more specific], then you've got to include a lot more . . . . And that becomes a 20, 25-page verdict form for the jury to complete, yes, no, and be here for a long time." The Court sided with the plaintiffs.

         Hence, the first two questions on the finalized verdict form made no distinction between cigarette brands and did not even refer to the defendants' conduct.[19] Instead, the questions asked the jury to determine whether cigarettes could cause certain diseases and addiction. The remaining verdict-form questions charged the jury to determine whether the defendants had engaged in tortious conduct, but did not require the jury to reveal the theory or theories on which it premised its tortious-conduct findings.[20] Thus, as the defendants had feared, the verdict form did not prompt the jury to indicate whether it had accepted, for example, just one or all eight instructed theories of negligence.[21] Nor did it prompt the jury to reveal which of the five instructed theories of strict liability[22] it accepted or which particular brands of cigarettes or cigarette features it identified as defective and unreasonably dangerous. With respect to strict liability and negligence-the two claims at issue in this appeal-the form simply asked the jury to respond "yes" or "no" to whether "one or more of the Defendant Tobacco Companies" (1) "place[d] cigarettes on the market that were defective and unreasonably dangerous"[23] and (2) "failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances."[24]

         The defendants objected to both questions, arguing that "[t]he [defect] question does not require specificity as to the product (brand or brand style), the defect, or the time of occurrence, which renders it useless for application to individual plaintiffs in other Phases of this case, " and "the [negligence] question does not require specificity as to the product (brand and brand style), the alleged negligent act, and the date of the act, which renders it useless for application to individual plaintiffs in other Phases of this case." They objected to verdict-form questions related to other tortious-conduct claims as well, insisting that the answers to such questions would be useless in Phase III because a different jury would be unable to discern what conduct the Phase I jury deemed tortious, making it impossible to prove that such conduct caused harm.

         The Court overruled the defendants' objections, and the jury, in the verdicts they returned on July 7, 1999, answered "yes" to every question. [25] Walker II, 734 F.3d at 1282. The defendants moved the Court to set aside the verdicts in accordance with their motions for directed verdict and alternatively for a new trial.[26] They also moved the Court to decertify the class. On July 29th, the Court summarily denied these motions.

         2. Phase II

         The trial of Phase II-A-the cases of three class representatives, Mary Farnan, Frank Amodeo, and Angie Della Vecchia, [27] against six tobacco companies[28]-began on November 1, 1999. All alleged that they were addicted to cigarettes, smoked a variety of the companies' brands, both filtered and nonfiltered, [29] and in time contracted cancer. All sought damages against each defendant on theories of strict liability and negligence.[30] Because the Phase I trial did not involve the class representatives' claims (or those of any class members), the Phase I jury was not instructed to determine whether any of the brands these plaintiffs actually smoked were defective, unreasonably dangerous, or negligently produced.[31] In Phase I, the jury had determined "issues . . . concerning the conduct of the tobacco industry." In Phase II-A, the same jury[32] was tasked with deciding inter alia whether the tortious conduct it identified in Phase I caused the class representatives' injuries.

         The jury had the Phase I trial record before it, and the three plaintiffs augmented that record by alleging the various brands of cigarettes they smoked, their inability to stop smoking, and that cigarette smoking caused the cancer they contracted.[33] After they rested their cases, the defendants moved the Court for directed verdicts on the ground that the plaintiffs failed to prove all elements of their claims, including whether the cigarettes the plaintiffs smoked were defective, unreasonably dangerous, or negligently produced. Evidence that cigarettes could cause disease, the defendants argued, did not establish that their tortious conduct caused the plaintiffs' diseases.

         The Court deferred its ruling on the motion until after the jury rendered its verdicts on the plaintiffs' claims. In the Court's view, the jury's answers to the Phase I verdict-form questions, coupled with the plaintiffs' testimony that they could not stop smoking and their experts' testimony that their smoking caused their cancer, were all the plaintiffs needed to make out a case for the jury under the theories of strict liability and negligence they were advancing.

         The Court's instructions to the jury reflected this view.[34] The Court began by explaining that the issues the jury decided in Phase I were not being litigated anew. What it had to decide now was whether the defendants' "conduct" on which it based its Phase I verdict was the "legal cause of injury to Mary Farnan, Frank Amodeo and Angie Della Vecchia."[35] Turning to the verdict form it would be submitting to the jury, the Court informed the jury of the issues it had to decide by answering "yes" or "no" to a series of questions, each prefaced with a finding the jury made in Phase I.

         The first question was prefaced with this statement: "In your [Phase I verdict], you found that smoking cigarettes causes . . . lung cancer and laryngeal (throat) cancer." The question that followed asked, "[W]as smoking cigarettes a legal cause" of the plaintiff's cancer? If the jury answered "yes, " it would proceed to the question pertaining to the claims of strict liability. The preface read, "You found in your [Phase I verdict] that each of the Defendant Tobacco Companies placed cigarettes on the market that were defective and unreasonably dangerous, both before and after July 1 of 1974 (except for Brooke, whose liability is limited to after July, 1974)." That preface was followed by a question: "Were defective and unreasonably dangerous cigarettes placed on the market by one or more of the Defendant tobacco companies a legal cause of [the plaintiff's cancer]"?

         In addition to answering this question regarding strict liability, the jury had to answer the question pertaining to the claims of negligence. The preface to the question was, "[I]n your [Phase I verdict], you found that all of the Defendant Tobacco Companies failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances, both before and after July 1 of 1969 (except for Brooke whose liability is limited to after July 1, 1969)." The corresponding question was, "As to each of the Defendants . . . please state whether that Defendant's negligence was a legal cause of [plaintiff's cancer]."

         The Court sent the case to the jury on April 5, 2000. The jury returned its verdicts on April 7, 2000, responding "yes" to each of the questions and therefore, pursuant to the Court's instructions, proceeded to determine the amount of the plaintiffs' compensatory damages, which were offset by comparative fault. The total award was $12.7 million. Engle II, 853 So.2d at 441.

         The trial of Phase II-B began on May 22, 2000. In Phase I, the jury determined that the defendants' conduct warranted the imposition of punitive damages, [36] so the Phase II-B trial focused on the monetary sum that should be imposed. On July 14, 2000, the jury fixed that sum at $145 billion to be awarded incrementally to class members who prevailed in subsequent Phase III lawsuits. Id. at 1257.

         3. Posttrial Motions

         At the conclusion of Phase II-B, the defendants moved the Court for the entry of judgment (as to Phases II-A and II-B) in accordance with their motion for directed verdict.[37] They also moved the Court to decertify the plaintiffs' class.[38] The plaintiffs filed no opposition to the defendants' motions. The Court took the motions under advisement and, without entertaining oral argument, denied them on November 6, 2000, in an Amended Final Judgment and Amended Omnibus Order ("Omnibus Order").[39]

         In denying the defendants' motion for the entry of judgment in accordance with their motion for directed verdict, the Omnibus Order addressed the plaintiffs' claims separately[40] and concluded that each claim had substantial evidentiary support.[41]

         The evidence introduced during the trial of Phase II-A was sufficient to prove that the plaintiffs had become addicted to the defendants' cigarettes and that smoking those cigarettes caused the plaintiffs' disease, cancer. That was all the plaintiffs had to show to prevail on their claims of strict liability, the Omnibus Order indicated, because the evidence introduced during the trial of Phase I established that both before and after July 1, 1974, the defendants had "placed cigarettes on the market that were defective and unreasonably dangerous."[42] The plaintiffs also prevailed on their claims of negligence because, the Omnibus Order indicated, the defendants "failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances."[43] The plaintiffs were relieved of the burden of proving that specific defects in the defendants' cigarettes or specific tortious conduct caused their injuries. Instead, plaintiffs were required to prove only that smoking the defendants' cigarettes caused their injuries.

         The Court had previously forecast that it would ease the plaintiffs' burden of proof in this way in a colloquy with Philip Morris' counsel during closing arguments in Phase II-A. The Court said,

Okay. Number One, cigarettes cause a disease. We know there is a causal effect between cigarettes.
If you put the product out and people smoke it, and they get disease, that is a causal effect. The jury has already made that determination.
The question is whether you did it. You did. The jury found you put these things on the market, somebody smoked it, and they got sick. That is strict liability. You are liable. That's what the jury indicates from Phase I.

         The Court upheld the jury's punitive-damages award because "[i]n Phase I of the trial, the jury, having heard the testimony concerning the behavior and conduct of the defendants, decided that punitive damages were indeed appropriate in this case."[44] The Court found that the $145 billion award was not unreasonable because "the amount of the jury verdict is within the parameters of the evidence at trial-within the limits of the highs and lows, albeit on the high side, but when the enormity of the facts and issues of this case are considered, the award cannot be said to be unreasonable."

         The Court made one further reference to Phase I. "[I]t should be noted that the jury in . . . Phase I . . . found each of the defendants Guilty as to all counts with the exception of count 7 for Equitable relief which the court dismissed previously under the plaintiffs request for Medical Monitoring."

         C. Appeal to the Third District Court of Appeal in Engle II

         The defendants appealed the Omnibus Order to the Third District Court of Appeal. They argued that plaintiffs' counsel's race-based incendiary remarks throughout trial merited the judgment's complete reversal. They argued alternatively that the punitive damages should be set aside as foreclosed by Florida precedent and that the class should be decertified because the Phase I findings were useless. The findings of tobacco-company misconduct were "generalized"; hence, the defendants contended, the "Phase III juries [would be] unable to determine whether the conduct found to be wrongful in Phase I was the legal cause of any Phase III claimant's injury."[45] Thus, the defendants warned, they would be faced with "an infinite re-examination of issues by different juries and the consequent risk of inconsistent verdicts, in violation of [their] constitutional right to have one-and only one-jury decide the same or interrelated issues."

         On May 21, 2003, the Third District, persuaded by the defendants' arguments, held that "the entire judgment must be reversed and the class decertified." Engle II, 853 So.2d at 470. The Court began its opinion by noting that "[a]lthough the emotional appeal of the class representatives' claims is compelling, our job as appellate judges is not to be swayed by emotion where to do so results in violating established legal principles." Id. at 442. The Court found that the plaintiffs had "incit[ed] juror prejudice against an unpopular industry, " concocted ostensibly "common" issues only by "creat[ing] a composite plaintiff who smoked every single brand of cigarettes, saw every single advertisement, read every single piece of paper that the tobacco industries ever created or distributed, and knew about every single allegedly fraudulent act." Id. at 467 n.48. Doing so enabled the class "to try fifty years of alleged misconduct that they never would have been able to introduce in an individual trial, which was untethered to any individual plaintiff." Id. Making matters worse moving forward, "there were no specific findings as to any act by any defendant at any period of time." Id. The Court acknowledged what the defendants had been arguing-the Phase I findings were useless.

         The Court concluded that "Florida's class action rules, substantive tort law, and state and federal guarantees of due process and a fair trial, [all] require[d] class decertification." Id. at 450. In reaching this conclusion, the Court noted that "virtually all courts that have addressed the issue have concluded that certification of smokers' cases is unworkable and improper." Id. at 444 (collecting cases). This is in large part because "issues of liability, affirmative defenses, and damages, outweigh[] any 'common issues' in th[e] case." Id. at 445. The impropriety of class certification was especially clear in this particular case, the Court explained, because "the jury did not determine whether defendants were liable to anyone." Id. at 450 (emphasis in original). And, "[a]s evidenced by the proceedings in Phase 2, each claimant will have to prove that his or her illness not only was caused by smoking, but was also proximately caused by defendants' alleged misconduct." Id. at 446 (emphasis added). Because "each class member had unique and different experiences that will require the litigation of substantially separate issues, class representation is not 'superior' to individual suits." Id. at 446-47.

         In addition to decertifying the class, the Court vacated the punitive-damages award on a host of independent grounds. First, the award violated "well-established Florida precedent" by

a)improperly requiring the defendants to pay punitive damages for theoretical injuries to hundreds of thousands of class members, without a determination that defendants are liable for such injuries;
b)precluding the constitutionally required comparison of punitive damages and compensatory damages; and c) eliminating the jury's discretion to assess punitive damages based upon the individual class members' varying circumstances.

Id. at 450. Second, the size of the punitive-damages award was excessive under state and federal law, noting that "the $145 billion verdict is roughly 18 times the defendants' proven net worth." Id.at 457. Third, as explained in Young v. Miami Beach Improvement Co., 46 So.2d 26 (Fla. 1950), the punitive award was precluded by settlement agreements between the tobacco companies and the states, "which expressly included claims for punitive damages." Engle II, 845 So.2d at 467-70.

         Lastly, the Court held that "Plaintiffs' counsel's improper race-based appeals for nullification caused irreparable prejudice and require reversal." Id. at 458. "The trial was book-ended with prejudicial attorney misconduct which incited the jury to disregard the law because the defendants are tobacco companies." Id. The Court explained that "Plaintiffs' counsel began making racially-charged arguments on the first day of trial, " and perpetuated through closing. Id. Specifically,

Plaintiffs' counsel . . . explicitly tied . . . racial references to appeals for jury nullification of the law during closing argument. He set the stage by telling the jury, "And let's tell the truth about the law, before we all get teary-eyed about the law. Historically, the law has been used as an instrument of oppression and exploitation." Plaintiff's counsel then juxtaposed defendants' conduct with genocide and slavery. Although the trial court sustained a defense objection, plaintiffs' counsel proceeded to tell the jury that, like slavery and the Holocaust, there was just one "side" to whether the defendants should continue to sell cigarettes . . . . [C]ounsel repeatedly urged the jury to fight what he called "unjust laws" citing the civil disobedience of Martin Luther King and Rosa Parks.

Id. at 459-60. After citing many further examples of prejudicial conduct, the Court explained that "the improper comments of plaintiffs' counsel further deprived the defendants of due process and a fair trial, thus additionally requiring reversal." Id. at 466.

         The Court ultimately summarized its holding thus: "The fate of an entire industry and of close to a million Florida residents, cannot rest upon such a fundamentally unfair proceeding." Id. at 470.

         D. Petition for Review to the Florida Supreme Court in Engle III

         The plaintiffs petitioned the Florida Supreme Court for review under Article V, Section 3(b)(3) of the Florida Constitution, which grants the Court jurisdiction to "review any decision of a district court of appeal that . . . expressly and directly conflicts with a decision . . . of the supreme court on the same question of law." The defendants opposed the Court's exercise of such jurisdiction by arguing that Engle II did not in fact come in "express and direct conflict" with any such precedent. The Supreme Court rejected the defendants' arguments and accepted jurisdiction based on a conflict between Engle II and its decision in Young v. Miami Beach Improvement Co. as to whether a settlement agreement between the state and the defendants would bind private citizens in their punitive-damages claims. Engle III, 945 So.2d at 1254, 1260. Following the Supreme Court's acceptance of jurisdiction, the parties jointly briefed the issues the Third District resolved in reaching its decision in Engle II.[46]

         On July 6, 2006, a divided Supreme Court issued its decision.[47] Resolving the issues the parties had briefed, the Court quashed the Third District's judgment as to each of its holdings except for its rejection of the punitive-damages award.[48]Engle III, 945 So.2d at 1254-56. However, in its rejection of the holdings, the Court actually echoed many of the Third District's criticisms regarding the unmanageably expansive class action litigation. Id. at 1267-71. Most notably, the Court "agree[d] with the Third District that problems with the three-phase trial plan" required the class to be decertified. Id. at 1267-68.

         To the Florida Supreme Court, however, decertification would not serve as an acceptable outcome for the class members who had been standing idly by while their attorneys tried Phases I and II of their case. To thus accommodate such class members, the Supreme Court sua sponte fashioned a "pragmatic solution" in which it preserved some of the Phase I findings for use in the class members' cases to establish tobacco-company liability. Id. at 1269.

         The Court implemented its pragmatic solution in two steps. First, it certified, pursuant to Florida Rule of Civil Procedure 1.220(d)(4)(A), [49] a class limited to liability issues; that is, limited to eight of the ten Phase I findings, [50] the findings on "Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-concealment), 6 (breach of implied warranty), 7 (breach of express warranty), and 8 (negligence)."[51] Engle III, 945 So.2d at 1255, 1268. It labeled these findings "common core findings." Id. at 1269. The Court did not certify the issue of legal causation-whether the Engle defendants' tortious conduct caused the class members' harm-noting that it was "highly individualized and [did] not lend [itself] to class action treatment." Id. at 1254. The Court acknowledged that "no Florida cases address whether it is appropriate under rule 1.220(d)(4)(A) to certify class treatment for only limited liability issues." Id. at 1268. It nevertheless certified the issues class because "several decisions by federal appellate courts applying a similar provision in the Federal Rules of Civil Procedure provide persuasive authority for this approach." Id.

         Under step two of its pragmatic solution, the Court declared that these "common core findings . . . will have res judicata effect" in the subsequent "damages actions" the class members would bring. Id. at 1269. The Phase I findings, which, as the Third District observed, were decided with reference to a "composite plaintiff who smoked every single brand of cigarettes, saw every single advertisement, read every single piece of paper that the tobacco industry ever created or distributed, and knew about every single allegedly fraudulent act, " Engle II, 853 So.2d at 467 n.48, would now have the legal effect of a partial final judgment resolving issues for individual class members.[52] The Court's pragmatic solution was therefore intended to enable class members-in suing an Engle defendant on claims of strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, and conspiracy to commit fraud-to plead the Phase I findings to conclusively establish elements of their claims and thereby foreclose the defendant from denying such elements.[53] Although the Phase I jury found none of the defendants foreclosed of their defenses, [54] id. at 450, the Florida Supreme Court did. All that remained for progeny plaintiffs to prove, and for progeny juries to consider, was "individualized issues such as legal causation, comparative fault, and damages." Engle III, 945 So.2d at 1268.

         After ruling on these two matters without providing the parties notice or opportunity to be heard on them, [55] the Supreme Court remanded the case to the Third District "with directions that the class should be decertified without prejudice to the class members filing individual claims within one year of the issuance of our mandate in this case with res judicata effect given to certain Phase I findings, " and "for further proceedings consistent with [its] opinion." Engle III, 945 So.2d at 1254, 1277.

         On August 7, 2006, the tobacco companies moved the Supreme Court for rehearing. Their motion contended that the Court's certification of an issues class under Rule 1.220(d)(4)(A) and its pronouncement that the Phase I jury findings would "have res judicata effect" in the cases brought by class members denied them due process in that the Court provided them with no notice that it was contemplating such action and no opportunity to be heard. The denial of due process aside, the tobacco companies contended that the Court erred in certifying the issues class. The "basic principle of class-action law throughout the country . . . [is] that certification-under any subdivision of the rules-must be addressed and determined before there is a trial on the merits." The companies' final contention was that the Phase I jury findings relating to the claims of strict liability and negligence, among others, could not be given "res judicata effect" because the findings were too generalized to provide a basis for individual causation consistent with due process.

         The Florida Supreme Court withdrew its July 6, 2006, opinion, Engle v. Liggett Grp., No. SC03-1856, 2006 WL 1843363 (Fla. 2006), and on December 21, 2006, published Engle III as a substitute. Engle III made minor modifications to the withdrawn opinion, but none are pertinent here. That same day, the Court summarily denied the tobacco companies' motion for rehearing in an order it chose not to publish. The order instructed the companies not to file another motion for rehearing.[56] The Engle defendants petitioned the U.S. Supreme Court for certiorari relief, but their petition was denied. R.J. Reynolds Tobacco Co. v. Engle, 552 U.S. 941, 128 S.Ct. 96, 169 L.Ed.2d 244 (2007).

         II.

         WHAT "RES JUDICATA" TRADITIONALLY MEANS

         In this appeal, RJR and Philip Morris challenge a judgment in favor of Earl Graham, as personal representative of the estate of his deceased wife, Faye Graham, on claims of strict liability and negligence. Ante at 17. Under traditional Florida tort law, a plaintiff alleging strict liability in the products-liability context must prove inter alia (a) that the product in question was defective[57] and (b) that the "defect caused the injury or harm alleged." Aubin v. Union Carbide Corp., 177 So.3d 489, 513 (Fla. 2015). Similarly, under traditional Florida tort law, a plaintiff alleging negligence must prove inter alia (a) that the defendant breached a duty of care owed to her and (b) that the defendant's breach caused her harm. Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007). In the wake of Engle III's res judicata dicta, [58] these traditional requirements have gone by the wayside in Engle-progeny cases.

         In this case, for example, the District Court held the defendants liable even though Mr. Graham never proved that his late wife's injury was caused by the defendants' product defect(s) or negligent conduct. Instead, the Court allowed Mr. Graham to take advantage of state-law conclusive presumptions-which did not exist when the parties litigated Phase I and apply only in Engle-progeny cases- under which "injury as a result of the Engle defendants' conduct is assumed." Douglas III, 110 So.3d at 429.

         The conclusive presumptions on which Engle-progeny plaintiffs rely effectively transform the Phase I findings from "useless, " Douglas III, 110 So.3d at 433, to dispositive. For example, the Phase I finding that each defendant "place[d] cigarettes on the market that were defective and unreasonably dangerous" now establishes as a matter of law that (a) every cigarette smoked by every class plaintiff was defective and unreasonably dangerous[59] and (b) such (unidentified) unreasonably dangerous defect(s) caused every class member's injury, including Ms. Graham's.[60] Similarly, the Phase I finding that each defendant "failed to exercise the degree of care which a reasonable manufacturer would exercise under like circumstances" now establishes under state law that (a) the Engle defendants breached their duty of care to every class plaintiff[61] and (b) their (unidentified) breach(es) caused every class member's injury, including Ms. Graham's.

         That Engle III's dicta[62] regarding the res judicata effect of the Phase I findings could so drastically alter the Phase I findings and Florida's preclusion doctrines and tort law is startling. Even more alarming is that progeny courts, including the Majority today, have consistently failed to address the resulting constitutional violations.[63] In this dissent, I lay bare these violations, which have been carried forward and incrementally exacerbated for twenty years.

         So far, I have traced the relevant procedural history preceding this case through Engle III. Below, I continue the narrative by detailing layer upon layer of judicial error committed by numerous state and federal courts, culminating finally with the Majority's errors today. To illuminate that narrative, I pause to explain some fundamental principles of common and constitutional law that progeny courts have either failed to understand or chosen to ignore. Specifically, I provide an overview of preclusion law and explain the U.S. Constitution's role in its effective operation. I then explain how progeny courts have interpreted Engle III's "res judicata" dicta as a mandate to disregard traditional preclusion law, tort law, and the Constitution; an invitation that many progeny courts have accepted.

         A. Res Judicata 101: The Elements of Issue and Claim Preclusion

         The term "res judicata" refers to all the ways in which the judgment of one court will have a binding effect in a subsequent case. Res judicata, Black's Law Dictionary 1425 (9th ed. 2009). This definition is the most common, but "lumps under a single name two quite different effects of judgments."[64] Id. The first- "issue preclusion" or "collateral estoppel"-is the effect of foreclosing relitigation of matters that have been litigated and decided. Id. The second-"claim preclusion, " "merger, " or "bar"-is the effect of foreclosing any litigation of matters that have never been litigated because they should have been advanced in an earlier suit.[65] Id.

         Both issue preclusion and claim preclusion operate across a two-lawsuit continuum.[66] First, parties litigate a dispute to a final judgment on the merits. Second, in a later, separate suit between the parties, one party brings to court evidence of an earlier judgment and contends that issue or claim preclusion should apply to prevent her opponent from litigating a previously decided issue[67] or cause of action.[68] In this two-lawsuit scheme, the first court is the "rendering" court and the second is the "recognizing" court. In this subpart, I elaborate on the elements of each doctrine.

         Issue preclusion, as developed in the common law, "bars relitigation of an issue of fact or law that has been decided in a prior suit." Baloco v. Drummond Co., 767 F.3d 1229, 1251 (11th Cir. 2014). Drawing from its common-law roots, the doctrine only applies when

(1) the issue at stake is identical to the one involved in the prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue in the prior suit was a necessary part of the judgment in that action; and (4) the parties are the same or in privity with each other and the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.

Id. Although some states articulate these elements differently, the core requirements are largely the same across all jurisdictions.

         In Florida, the elements are set forth in a five-prong test. For issue preclusion to apply there must be (1) identical parties, [69] (2) identical issue(s), (3) full litigation of the particular matter, (4) determination of the particular matter, and (5) a "final decision" in the prior proceeding by a court of competent jurisdiction. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 945 So.2d 1216, 1235 (Fla. 2006) (quoting Dep't of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla. 1995)).

         Elements (2), (3), and (4) of the Florida doctrine culminate in an "actually decided" requirement, which is fundamental to issue preclusion. The requirement originated with early English authorities, which explained that preclusion requires a determination "directly upon point"; recognizing courts could not preclude parties from litigating issues on the basis that such issues might have been or probably were decided. The Duchess of Kingston's Case, 20 Howell's State Trials 538 (House of Lords 1776). Rather, courts could estop litigation only when the "estoppell" was "certaine to every intent, and not . . . taken by argument or inference." 2 Coke, The First Part of the Institutes of the Laws of England; Or, A Commentary on Littleton ¶352a (1817).

         This early English common-law requirement is now deeply ingrained in the American judicial system. Federal and state issue-preclusion doctrines have included the requirement for well over a century. See, e.g., Cromwell v. County of Sacramento, 94 U.S. 351, 353, 24 L.Ed. 195 (1876) ("[T]he inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined." (emphasis added)); Burlen v. Shannon, 99 Mass. 200, 203 (1868) (noting that "according to all the well considered authorities, ancient and modern, " the inference that an issue was decided by prior litigation had to "be inevitable, or it [could not] be drawn"). And, to this day, federal and state courts uniformly adhere to it.[70] Florida is no exception. See Brown v. R.J. Reynolds Tobacco Co. (Brown II), 611 F.3d 1324, 1334 ("Florida courts have enforced the 'actually adjudicated' requirement with rigor." (citation omitted)).

         The universality of the actually decided requirement is no accident; the requirement helps facilitate due process. When a rendering court decides an issue and a recognizing court later accords that issue preclusive effect, two consequences result: First, the precluded party is gagged from litigating that issue. Fayerweather v. Ritch, 195 U.S. 276, 307, 25 S.Ct. 58, 68, 49 L.Ed. 193 (1904). Second, the parties are bound to the rendering court's decision with respect to that issue. Id. at 299, 25 S.Ct. at 64. A litigant is therefore susceptible to being denied her due process right of having an opportunity to be heard on each issue of her case, duPont v. Southern, 771 F.2d 874, 880 (5th Cir. 1985), unless the recognizing court, before giving preclusive effect to an issue determination, first identifies with specificity what the rendering court allegedly decided and determines it was, indeed, actually decided.

         Though similar to issue preclusion in some respects, claim preclusion is a distinct doctrine carrying its own elements. Unlike issue preclusion, which can be asserted offensively or defensively, claim preclusion is an affirmative defense.[71]Fed. R. Civ. P. 8(c)(1); Fla. R. Civ. P. 1.110. To invoke claim preclusion, a defendant must prove in a recognizing court that the plaintiff's cause of action was adjudicated on the merits in a previous case involving the same parties.[72] Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001). Thus, under both Florida and federal law, claim preclusion carries four elements: (1) "a final judgment on the merits"; (2) a "decision . . . rendered by a court of competent jurisdiction"; (3) "the same cause of action . . . involved in both cases"; and (4) "the parties, or those in privity with them, are identical in both suits."[73] Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014).

         Like issue preclusion's actually decided requirement, elements (1) and (3) of claim preclusion are ubiquitous and deeply ingrained because they help protect parties' due process rights.[74] Element (1), the final-judgment requirement, [75] has long been a "cardinal rule" in Florida and all other traditional common-law jurisdictions. Douglas III, 110 So.3d at 438 (Canady, J., dissenting) (quoting Juliano, 801 So.2d at 105) (citing Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984)). The requirement is important because a defendant who successfully invokes claim preclusion bars a plaintiff from litigating a previously adjudicated cause of action, both as to "issues that were raised . . . [and] issues that could have been raised but were not raised in the first case."[76] Juliano, 801 So.2d at 105. Barring a cause of action that was never fully litigated to a final judgment unjustly "blockades [an] unexplored path[] that may lead to the truth." Brown v. Felsen, 442 U.S. 127, 132, 99 S.Ct. 2205, 2210, 60 L.Ed.2d 767 (1979).

         Element (3) of claim preclusion, the same-cause-of-action requirement, has similar constitutional significance. Litigants enjoy a "due process right to fully and fairly litigate each issue in their case." duPont, 771 F.2d at 874; see also Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed. 90');">29 L.Ed. 90 (1971) ("It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision . . . does not meet [the requirements of the Due Process Clause]."). Claim preclusion-which bars litigation both as to issues that were and were not litigated in a prior case, Juliano, 801 So.2d at 105-stands in tension with this due process right. The doctrine is reconciled with due process by means of the same-cause-of-action requirement, which functions to "bar[] only those claims that could have been raised in the prior litigation." Griswold v. City of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010) (emphasis added); see also Dennard v. State, No. SC15-300, 2016 WL 1252516, at *2 (Fla. Mar. 30, 2016) (explaining that res judicata only extends to "claims that could have been raised in the prior action" (emphasis in original) (quotation marks and citation omitted)).

         B. Res Judicata 102: Procedures to Invoke Issue and Claim Preclusion

         When applied properly, issue and claim preclusion facilitate the worthy aim of efficiency: "By 'preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate, ' these two doctrines protect against 'the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155 (2008) (alterations in original) (quoting Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)). The doctrines, however, carry the risk of depriving litigants of their property without ever affording them an opportunity to be heard on a central element of their case. Hence, recognizing courts should apply the doctrines "only after careful inquiry." Felsen, 442 U.S. at 132, 99 S.Ct. at 2210. "[I]n properly seeking to deny a litigant two days in court, [recognizing] courts must be careful not to deprive him of one." Criales v. Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997).

         Recognizing courts therefore strictly abide by certain common-law procedures designed to help protect the integrity of their proceedings and litigants' due process rights. Such procedures are so ubiquitous and rudimentary that litigants and courts have had little, if any, reason to test their boundaries. See Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 430, 114 S.Ct. 2331, 2340, 129 L.Ed.2d 336 (1994) ("Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial."). The rare court that does deviate from, or abrogate, such procedures risks violating litigants' due process rights. See Douglas III, 110 So.3d at 430-31 ("[E]liminating the basic common law protections against an arbitrary deprivation of property violates due process." (citing Oberg, 512 U.S at 432, 114 S.Ct. at 2341)). I detail some of these procedures in a hypothetical.

         A lawsuit is tried to a jury in a rendering court on claims and defenses framed by the plaintiff's complaint and the defendant's answer. After receiving the jury's verdict, the court enters a final judgment for the plaintiff. In doing so, the rendering court does not declare or predict whether, and if so to what extent, a recognizing court will give preclusive effect to its judgment, that is, to any of the claims or defenses or to any of the issues that were litigated. To do so would result in mere dicta, because those determinations are within the recognizing court's sole purview.[77]

         Later, the plaintiff sues the defendant[78] in a Title VII action in a different court, a recognizing court. Her complaint alleges several discrete acts of conduct severe or pervasive enough to create a hostile work environment. The defendant denies each allegation. The plaintiff, invoking issue preclusion, then moves the court to strike the defendant's denial of two of the acts on the ground that they were adjudicated in her favor in the previous lawsuit. The defendant opposes the motion, so the court requires the plaintiff-the party with the burden of proof[79] - to present the portions of the previous lawsuit's record that establish the adjudication of the issues. The plaintiff responds by introducing from that record the complaint and answer, the jury instructions, the jury's verdict, and the final judgment.

         Upon receiving the plaintiff's evidence, the court decides whether to grant her motion to strike. First, the court determines whether the plaintiff has established the elements of issue preclusion under the rendering state's laws.[80]Because every state has a presumption against preclusion, recognizing courts must not apply preclusion if any doubt exists that the elements of preclusion have been satisfied. Issue preclusion's actually decided requirement, for example, is stringent: If a rendering court's jury instructions leave "it open to the jury to find for the defendant upon either of . . . two [or more] propositions, and the verdict does not specify upon which the jury acted, there can be no certainty that they found upon one rather than the other, " and preclusion is inappropriate.[81] De Sollar v. Hanscome 158 U.S. 216, 222, 15 S.Ct. 816, 818, 39 L.Ed. 956 (1895). In other words, if the jury in the previous case could have returned a verdict for the plaintiff without deciding whether the two acts at issue actually occurred, the recognizing court could not grant the motion to strike.[82]

         If, on the other hand, the recognizing court concludes that the plaintiff has met her burden, and preclusion is appropriate under the rendering state's laws, the court will grant the plaintiff's motion unless the defendant objects further. If the defendant objects on due process grounds, the recognizing court must ensure that applying the rendering state's preclusion law will not violate the defendant's due process rights. [83] See Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940) ("[When a due process objection is raised] it becomes the duty of [the recognizing court] to examine the course of procedures in both litigations to ascertain whether the litigant whose rights have thus been adjudicated has been afforded . . . due process."); Douglas III, 110 So.3d at 430-31 (expressing the same principle); Adams v. State Farm Bureau Life Ins. Co., 493 F.3d 1276, 1285 (11th Cir. 2007) ("[W]e have stated that res judicata can only be applied to an action if it is first shown that doing so would be consistent with due process." (citing Twigg v. Sears & Roebuck & Co., 153 F.3d 1222, 1226 (11th Cir.1998))). In conducting its due process inquiry, the recognizing court must determine (a) whether the determination in the rendering court was made with adequate notice and opportunity to be heard, (b) whether state preclusion law contains adequate safeguards to ensure that courts do not arbitrarily deprive litigants of property, [84]and (c) whether such safeguards were, in fact, applied.

         To conduct its inquiry appropriately, the recognizing court must "look past the linguistic label[s] employed by the [rendering court]" and conduct a meaningful review.[85] Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1189 (11th Cir. 2003); see also Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 420-21 (6th Cir. 2012) ("[In conducting this inquiry] it is incumbent upon us to apply the same scrutiny to state-court judgments that the Supreme Court would apply."); Criales v. Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997) ("[W]e would not permit the choice of labels to distort substance, especially where the consequence would be so drastic as to deprive a party of the opportunity to be heard."). If its due process inquiry so warrants, [86] the recognizing court then grants the plaintiff's motion to strike.

         Given the essential inquiries for which a recognizing court is responsible, a rendering court cannot "predetermine the res judicata effect of [its] judgment."[87]Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 396, 116 S.Ct. 873, 888, 134 L.Ed.2d 6 (1996) (Ginsburg, J., concurring in part and dissenting in part) (citation omitted). This is so even if the rendering court, like the Supreme Court in Engle III, is convinced that its proceedings were constitutionally sound.

         III.

         ENGLE III INSTRUCTED PROGENY COURTS TO DISREGARD TRADITIONAL RES JUDICATA LAW SO AS TO HOLD THE DEFENDANTS LIABLE WITHOUT REGARD TO THE PHASE I FINDINGS

         When Engle III accepted jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution, it assumed the role of an appellate rendering court, reviewing the proceedings in Engle I and Engle II for certain issues that were "properly briefed[, ]argued and [ ] dispositive of the case." Murray v. Regier, 872 So.2d 217, 225 n.5 (Fla. 2002) (citing Savona v. Prudential Ins. Co. of America, 648 So.2d 705, 707 (Fla.1995)). The Florida Supreme Court fulfilled this role by considering the briefed issues and quashing much of the Third District's judgment.

         When Engle III retroactively certified an issues class limited to eight of the ten of Phase I findings, and declared that those "findings . . . will have res judicata effect" in future "damages actions" to be brought by individual members of the decertified class, it usurped the role of a recognizing court.[88] Engle III, 945 So.2d at 1269. Recognizing progeny courts could have disregarded Engle III's res judicata instruction as mere dicta, [89] and some did.[90] Many others, however, in deference to the state's highest court, interpreted the instruction as a binding mandate. See, e.g., R.J. Reynolds Tobacco Co. v. Martin (Martin II), 53 So.3d 1060, 1066-67 (Fla 1st Dist. Ct. App. 2010) (interpreting the Florida Supreme Court's res judicata instruction as a mandate that "district courts of appeal do not have the prerogative to overrule"); Jimmie Lee Brown II, 70 So.3d at 715 ("We are constrained by the Florida Supreme Court's decision in Engle III."). As shown below, recognizing courts that interpreted the instruction as a mandate treated preclusion as a foregone conclusion, thereby abandoning their recognizing-court duties and putting their integrity at risk while sparing progeny plaintiffs their burden of proving the elements of preclusion.

         In accordance with mutuality requirements under Florida preclusion law, [91]we are not bound by previous recognizing-court determinations.[92] Nevertheless, I review such cases to demonstrate how progeny courts have incrementally grown ever-more absurd in their reasoning, ever-more disingenuous in their portrayal of facts, and ever-more cavalier in their abrogation of due process. The Majority's opinion is best understood in the context of the steady downslide that preceded it.

         A. The U.S. District Court for the Middle District of Florida in Brown I Rejected the Florida Supreme Court's Interference with Its Duties as a Recognizing Court

         Within the one-year limitations period Engle III provided, 9, 000 class members-smokers and personal representatives of deceased smokers- filed suit against the Engle defendants in state and federal court, the "Engle-progeny cases."[93] Approximately 4, 000 members brought suit in the Circuit Court of Duval County, Florida.[94] The tobacco companies, invoking the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.), successfully removed the cases to the U.S. District Court for the Middle District of Florida.[95] Graham v. R.J. Reynolds Tobacco Co. (Graham I), No. 3:09-cv-13603-MMH-JBT (M.D. Fla. May 28, 2013) was one of them.

         After the cases removed to the Middle District of Florida were assembled, [96]the tobacco companies moved the District Court in one of the cases, Brown v. R.J. Reynolds Tobacco Co. (Brown I), 576 F.Supp.2d 1328 (M.D. Fla. 2008), [97] to decide the preclusive effect, if any, of the Phase I findings based on Engle III's declaration that "the Phase I common core findings [it] approved will have res judicata effect" in the progeny cases. [98] Engle III, 945 So.2d at 1269. The District Court granted the motion.

         The preclusion issue was framed by Brown I's amended complaint[99] and the defendants' answers.[100] I quote parts of these pleadings because they set the stage for, and were integral to, the District Court's decision.

         The amended complaint was materially identical to the complaints filed in the other Engle-progeny cases in that all asserted the same Engle III-approved tort claims and sought compensatory and punitive damages. None of the complaints specified the brand(s) of the defendants' cigarettes the plaintiff smoked, how the defendants' tortious conduct caused the plaintiff's injuries, or even what the tortious conduct was in the first place. The facts on which a specific tort claim rested consisted of a citation to the Engle III decision and the Phase I findings. Amended Complaint at 1, 5, 12-14, Brown I, 576 F.Supp.2d 1328 (No. 3:07-cv-00761).

         I begin with the pertinent allegations of the complaint and then move to the defendants' answers.

         AMENDED COMPLAINT

         Plaintiffs, as Personal Representatives of the Estates of Decedents, hereby sue the Defendants as follows:

INTRODUCTION AND GENERAL ALLEGATIONS
1. This is a complaint against the Defendants seeking compensatory and punitive damages in accordance with the Florida Supreme Court's class action decision and mandate in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). In approving the Engle Phase I class certification and trial, but ordering post Phase I class decertification, the Florida Supreme Court provided this opportunity to complete unresolved individual damages claims. The Court held: "that it was proper to allow the jury to make findings in Phase I on Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-concealment), 6 (breach of implied warranty), 7 (breach of express warranty), and 8 (negligence). Therefore, these findings in favor of the Engle class can stand." The Court further held that specified liability and general causation findings by the Engle jury did not need to be proved again as they shall be given res judicata effect. Consequently, Plaintiffs bring this action upon the limited remaining issues in dispute, to-wit: specific causation, apportionment of damages, comparative fault, compensatory damages, entitlement to punitive damages, and punitive damages.
2. The Florida Supreme Court expressly reserved to class members, including Plaintiffs and their Decedents, the right to bring individual actions against Defendants for smoking-related injuries and damages, including punitive damages. This action is timely because it is brought within one (1) year of the Florida Supreme Court's mandate in Engle.
3. Plaintiffs are the Personal Representative for the Estate of the Decedents. Letters of Administration will be forthcoming and filed with the Clerk of this Court. This action is brought on behalf of the Decedent's survivors and Estate. The potential beneficiaries of a recovery in this action and the relationship to the Decedents follow Fla. Stat. § 768, et seq.
. . .
5. The Defendants are manufacturers of cigarettes, or their successors/predecessors are manufacturers of cigarettes, and they are foreign corporations doing business in Florida who, at times material to this action, designed, manufactured, advertised, marketed, and sold tobacco products for human consumption which proximately caused injury to Decedents.
. . .
12. Cigarette Products. Decedents purchased, smoked, and were addicted to cigarette products manufactured and sold by Defendants which were the subject of Engle. They were designed, manufactured, advertised, marketed, and sold by the Defendants at all times material to these claims.
13.Common Liability Findings. Plaintiffs assert the jury findings in the Phase I Engle trial which were given res judicata effect by the Florida Supreme Court, including but not limited to the following:
a. Smoking cigarettes causes aortic aneurysm, bladder cancer, cerebral vascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarcinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer.
b. Nicotine is addictive.
c. All of the Defendants placed cigarettes on the market that were defective and unreasonably dangerous.
d. All of the Defendants concealed or omitted material information not otherwise known or available, knowing that the material was false or misleading, or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.
e. All of the Defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.
f. All of the Defendants sold or supplied cigarettes that were efective.
g. All of the Defendants were negligent.
h. All Defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by Defendants.
14. As a direct and proximate result of Decedents' smoking of Defendants' cigarettes, Decedents suffered bodily injury and died. Defendants' cigarettes caused Decedents to develop one or more cigarette-related diseases or medical conditions and one or more of them resulted in or substantially contributed to Decedents' death.
. . .
17.The threshold requirement for pleading punitive damages has been previously met in the Engle Phase I proceeding.
COUNT I - STRICT LIABILITY
18.The Introduction and General Allegations above are re-alleged and incorporated herein by reference.
19. As a direct and proximate result of Defendants' defective and unreasonably dangerous cigarettes, Decedents were injured and died.
. . .
COUNT II - BREACH OF EXPRESS WARRANTY
20.The Introduction and General Allegations above are re-alleged and incorporated herein by reference.
21.As a direct and proximate result of Defendants' breach of express warranty, Decedents were injured and died.
. . .
COUNT III - BREACH OF IMPLIED WARRANTY
22. The Introduction and General Allegations above are re-alleged and incorporated herein by reference.
23.As a direct and proximate result of Defendants' breach of implied warranty, Decedents were injured and died.
. . .
COUNT IV - CIVIL CONSPIRACY TO FRAUDULENTLY CONCEAL
24.The Introduction and General Allegations above are re-alleged and incorporated herein by reference.
25. As a direct and proximate result of Defendants' conspiracy to fraudulently deceive, Decedents were injured and died.
. . .
COUNT V - FRAUDULENT CONCEALMENT
26.The Introduction and General Allegations above are re-alleged and incorporated herein by reference.
. . .
27. As a direct and proximate result of Defendants' fraudulent concealment, Decedents were injured and died.
. . .
COUNT VI - NEGLIGENCE

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