THERESA GRAHAM, as PR of Faye Dale Graham, deceased, Plaintiff-Appellee,
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.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 3:09-cv-13602-MMH-JBT
TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN,
ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.
WILLIAM PRYOR, Circuit Judge.
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.
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
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.
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
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.
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.
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.
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
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
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.
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
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.
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.
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.
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).
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.
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.
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.
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."
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
Giving Preclusive Effect to the Negligence and Strict
Liability Findings Does Not Violate Due Process.
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).
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.
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).
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.
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
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.
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
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
Federal Law Does Not Preempt the Jury Findings of Negligence
and Strict Liability.
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)).
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
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (second
and third alteration in original) (quoting Lohr, 518
U.S. at 485).
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
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
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
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.
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)).
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
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
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
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.
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).
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.
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.
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),
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).
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.
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.
AFFIRM the judgments against R.J. Reynolds and Philip Morris.
CARNES, Circuit Judge, concurring in part and dissenting in
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:
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. The
Phase I jury found that each of the Engle defendants
engaged in nine different kinds of proscribed
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.
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. Courts tasked with determining
whether to enforce a rendering court's judgment make
those determinations themselves. 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, 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.,
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
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."
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.
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. 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.
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.
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. 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
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
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.
Procedural History of
Certifying the Engle
Engle Trial to Proceed in Three
Appeal to the Third District Court of Appeal in Engle
Petition for Review to the Florida Supreme Court in Engle
What "Res Judicata" Traditionally
Judicata 101: The Elements of Issue and Claim
Judicata 102: Procedures to Invoke Issue and Claim
Engle III Instructed Courts to Disregard Traditional
Res Judicata Law so as to Hold the Defendants Liable without
Regard to the Phase I Findings
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
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
Florida District Courts of Appeal Rejected Brown II
on the Basis of Engle III's
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
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
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
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
Second District Court of Appeal in Douglas II
Accepted Martin II's Reasoning, But Certified
the Due Process Question to the Florida Supreme
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
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
Majority Repeat and Add to the Walker Panel's
The Functional Ban on Cigarettes is Preempted by Federal
Federal Regulation of Tobacco Consumers' Ability to
Florida Has Imposed a Duty Not to Sell Cigarettes Contrary to
Majority Misinterpret the Statutory Framework of Tobacco
HISTORY OF ENGLE
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.
Certifying the Engle Class
5, 1994, the plaintiffs moved the Circuit Court pursuant to
Florida Rule of Civil Procedure 1.220(b)(3) 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.
defendants appealed the decision to the District Court of
Appeal, Third District. 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.
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
end of 1997, as the case proceeded through its pretrial
stages, the class had indeed grown to hundreds of thousands
of claimants. 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. 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
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.
Engle Trial to Proceed in Three Phases
February 1998, the Circuit Court announced that it had
developed a tentative three-phase trial plan to manage the
litigation. 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
jury would evaluate evidence exclusively related to the
defendants' conduct and would determine whether such
conduct rendered the defendants answerable in punitive
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.
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.
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
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.
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
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
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.
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
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.
by the plaintiffs, the Court reserved ruling on the motion,
 and the
defendants went on to present their case. 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?
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
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.
the first two questions on the finalized verdict form made no
distinction between cigarette brands and did not even refer
to the defendants' conduct. 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. 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. Nor did it prompt the jury to reveal
which of the five instructed theories of strict
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" and (2) "failed to exercise the
degree of care which a reasonable cigarette manufacturer
would exercise under like circumstances."
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.
Court overruled the defendants' objections, and the jury,
in the verdicts they returned on July 7, 1999, answered
"yes" to every question.  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. They also moved the
Court to decertify the class. On July 29th, the Court
summarily denied these motions.
trial of Phase II-A-the cases of three class representatives,
Mary Farnan, Frank Amodeo, and Angie Della Vecchia,
six tobacco companies-began on November 1, 1999. All alleged
that they were addicted to cigarettes, smoked a variety of
the companies' brands, both filtered and nonfiltered,
 and in
time contracted cancer. All sought damages against each
defendant on theories of strict liability and
negligence. 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
In Phase I, the jury had determined "issues . . .
concerning the conduct of the tobacco industry." In
Phase II-A, the same jury was tasked with deciding inter
alia whether the tortious conduct it identified in Phase
I caused the class representatives' injuries.
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. 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.
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.
Court's instructions to the jury reflected this
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." 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.
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
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
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.
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,  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.
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
They also moved the Court to decertify the plaintiffs'
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").
denying the defendants' motion for the entry of judgment
in accordance with their motion for directed verdict, the
Omnibus Order addressed the plaintiffs' claims
and concluded that each claim had substantial evidentiary
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." 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." 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.
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
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.
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." 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
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."
Appeal to the Third District Court of Appeal in
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." 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
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.
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
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
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.
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.
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.
Petition for Review to the Florida Supreme Court in
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.
6, 2006, a divided Supreme Court issued its
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.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.
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.
Court implemented its pragmatic solution in two steps. First,
it certified, pursuant to Florida Rule of Civil Procedure
1.220(d)(4)(A),  a class limited to liability issues;
that is, limited to eight of the ten Phase I findings,
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)." 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.
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. 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
Although the Phase I jury found none of the defendants
foreclosed of their defenses,  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.
ruling on these two matters without providing the parties
notice or opportunity to be heard on them,  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.
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.
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. 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).
"RES JUDICATA" TRADITIONALLY MEANS
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 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,
traditional requirements have gone by the wayside in
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.
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 and (b) such (unidentified)
unreasonably dangerous defect(s) caused every class
member's injury, including Ms.
Graham's. 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 and (b) their (unidentified) breach(es)
caused every class member's injury, including
Engle III's dicta 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. In this dissent, I lay bare these
violations, which have been carried forward and incrementally
exacerbated for twenty years.
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
Res Judicata 101: The Elements of Issue and Claim
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." 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
issue preclusion and claim preclusion operate across a
two-lawsuit continuum. 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 or cause of
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.
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.
Florida, the elements are set forth in a five-prong test. For
issue preclusion to apply there must be (1) identical
(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)).
(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).
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. 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."
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
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.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. 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." Baloco v. Drummond Co., 767
F.3d 1229, 1246 (11th Cir. 2014).
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
Element (1), the final-judgment requirement,  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." 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).
(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)).
Res Judicata 102: Procedures to Invoke Issue and Claim
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).
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.
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
the plaintiff sues the defendant 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 - 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.
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.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. 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.
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.  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,
whether such safeguards were, in fact, applied.
conduct its inquiry appropriately, the recognizing court must
"look past the linguistic label[s] employed by the
[rendering court]" and conduct a meaningful
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,
recognizing court then grants the plaintiff's motion to
the essential inquiries for which a recognizing court is
responsible, a rendering court cannot "predetermine the
res judicata effect of [its] judgment."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
III INSTRUCTED PROGENY COURTS TO DISREGARD TRADITIONAL
RES JUDICATA LAW SO AS TO HOLD THE DEFENDANTS LIABLE WITHOUT
REGARD TO THE PHASE I FINDINGS
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
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
Engle III, 945 So.2d at 1269. Recognizing progeny
courts could have disregarded Engle III's res
judicata instruction as mere dicta,  and some did. 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.
accordance with mutuality requirements under Florida
preclusion law, we are not bound by previous
recognizing-court determinations. 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
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
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." Approximately 4, 000
members brought suit in the Circuit Court of Duval County,
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
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.
the cases removed to the Middle District of Florida were
assembled, 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),  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.  Engle III, 945
So.2d at 1269. The District Court granted the motion.
preclusion issue was framed by Brown I's amended
and the defendants' answers. I quote parts of these pleadings
because they set the stage for, and were integral to, the
District Court's decision.
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).
with the pertinent allegations of the complaint and then move
to the defendants' answers.
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
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
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
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
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
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
. . .
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