Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Searcy v. R.J. Reynolds Tobacco Co.

United States Court of Appeals, Eleventh Circuit

September 5, 2018

CHERYL SEARCY, Plaintiff-Appellee,
v.
R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants-Appellants.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:09-cv-13723-MMH-JBT

          Before MARTIN, ANDERSON, and JULIE CARNES, Circuit Judges.

          JULIE CARNES, Circuit Judge.

         Cheryl Searcy ("Plaintiff") sued the defendants, R.J. Reynolds Tobacco Company and Philip Morris Inc. (together, "Defendants") for unintentional and intentional torts arising from the death of her mother, Carol Lasard, alleging that Lasard's illnesses were caused by her addiction to cigarettes manufactured by Defendants. The jury found for Plaintiff on both the unintentional and intentional tort claims and awarded substantial damages. Defendants assert on appeal that the district court violated their due process and Seventh Amendment rights when it directed the jury that it should deem Defendants' alleged tortious conduct in the present case to have been proven based on the findings of another jury in a prior proceeding. Defendants also contend that the district court should have applied Florida's comparative fault statute to reduce the jury's damages award based on the fault the jury attributed to Lasard. After careful review, we affirm the district court.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         A. The Engle Litigation

         This is an "Engle progeny" case-so named because it stems from the Engle class action initiated in 1994 in Florida state court against the major tobacco companies alleging negligence, strict liability, fraudulent concealment, and conspiracy to conceal (among other claims), arising from these companies' manufacture and sale of cigarettes. Although much ink could be (and has been) spilled describing the history of Engle litigation over the past two and a half decades, we cover only the most pertinent facts here.[1]

         Suffice it to say, the initial Engle class action culminated in jury findings establishing certain elements of Defendants' conduct (the "Engle jury findings") that the Florida Supreme Court determined would be given res judicata effect in subsequent lawsuits brought by members of the Engle class. See Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1276-77 (Fla. 2006). According to that court, the Engle jury did not decide the defendants' liability, but instead "decided issues related to [the defendants'] conduct." Id. at 1263. As a result, the Florida Supreme Court held that Engle "progeny" plaintiffs may use the Engle jury findings to establish the conduct elements for the "strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal claims alleged by the Engle class." Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 436 (Fla. 2013).

         Specifically, the Engle jury findings establish: (1) "that smoking cigarettes causes" various diseases, including "lung cancer"; (2) "that nicotine in cigarettes is addictive"; (3) "that the defendants placed cigarettes on the market that were defective and unreasonably dangerous"; (4) "that 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"; (5) "that 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"; (6) "that all of the defendants sold or supplied cigarettes that were defective"; (7) "that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants"; and (8) "that all of the defendants were negligent." Engle, 945 So.2d at 1276-77.

         Thereafter, in the progeny phase of Engle litigation, "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." Douglas, 110 So.3d at 430.

         B. This Case

         Plaintiff's mother, Carol Lasard, died of lung cancer and chronic obstructive pulmonary disease, having been addicted to cigarettes since she was fifteen years old. Proceeding as an Engle class member, Plaintiff sued both R.J. Reynolds and Phillip Morris-the companies that manufactured the cigarettes Plaintiff claims caused her mother's death. She asserted both non-intentional tort claims (negligence and strict liability) and intentional tort claims (concealment and conspiracy to conceal). At issue for purposes of Defendants' present due process challenge are the intentional tort claims, hereinafter referred to as the "concealment claims." As to the concealment claims before it, the Engle jury had found that the defendant tobacco companies had "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" and further that these defendants had agreed to conceal "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." See Engle, 945 So.2d at 1277 (emphasis added). Yet, to prevail on an intentional tort claim, a plaintiff who is a member of the Engle class cannot rest solely on the above Engle findings but must prove that the defendant's tortious act caused her injury: that is, for a concealment claim, the plaintiff must show that in deciding or continuing to smoke, she relied on the particular misleading information disseminated by the particular defendant and that such reliance caused harm. See Philip Morris USA, Inc. v. Russo, 175 So.3d 681, 686 (Fla. 2015) ("Engle-progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims."); Hess v. Philip Morris USA, Inc., 175 So.3d 687, 698 (Fla. 2015) (same).

         Plaintiff indicates that there were two types of concealed information on which her mother, Lasard, relied. First, Lasard began smoking as a young girl, before cigarette warnings were required, and the concealment at issue for that time period was the Engle defendants' general failure to warn the public that smoking could be addictive and dangerous to one's health, as well as their marketing of filtered cigarettes as being healthier. The evidence of this concealment "was based on the general conduct findings in Engle . . ." But, at trial, Plaintiff also focused on a type of concealment specific to Lasard that Defendants note was not common to the entire Engle class nor necessarily decided by the Engle jury as an act on which it based its class-wide concealment findings: the misleading marketing of low-tar/low-nicotine cigarettes as being safer than other types of cigarettes on the market.

         The trial court instructed the jury that it should rely on the Engle findings as if the jury had found those facts itself. The court did not instruct the jury that to the extent it based its verdict on the alleged concealment related to the low-tar/low- nicotine cigarettes, Plaintiff would bear the burden of proving that particular act of concealment.

         At trial, the jury found that Defendants were liable on both the unintentional tort claims of negligence and strict liability, as well as on the intentional tort claims of fraudulent concealment and conspiracy to fraudulently conceal. The jury awarded Plaintiff $6, 000, 000 in compensatory damages and $20, 000, 000 in total punitive damages.

         In response to a question on the special verdict form asking whether Plaintiff shared any fault for her injury, the jury allocated 40% of the fault to Lasard and 30% to each Defendant. In thereafter preparing the judgment, the district court acknowledged that Plaintiff's negligence claim was subject to apportionment based on her degree of fault, but nevertheless it did not reduce her damages to reflect that finding. The court explained that Defendants had also been found liable on intentional tort claims (the fraudulent concealment and conspiracy to fraudulently conceal), which unlike a negligence claim are not subject to apportionment under Florida's comparative fault statute, Florida Statute § 768.81. Because the jury had returned a single damages award that was not divided between the two types of claims-one of which was subject to apportionment based on a plaintiff's fault and one of which was non-apportionable-the court concluded that it could not properly reduce the award based on Lasard's degree of fault.

         Although the district court did not adjust the damages award based on Lasard's comparative fault, it did conclude that both the compensatory and punitive award were excessive. The court therefore remitted the award to $1, 000, 000 in compensatory damages, owed jointly and severally by Defendants, and $1, 670, 000 in punitive damages, owed independently by each.

         C. Defendants' Enumeration of Errors

         On appeal, Defendants allege three errors. The first two involve alleged constitutional violations arising from the district court's use of the Engle findings. First, Defendants contend that the district court erroneously permitted Plaintiff to rely on the Engle findings to establish the conduct elements of her intentional tort claims for concealment and conspiracy to conceal. Defendants argue that, by allowing the jury to rely on these findings, the district court violated Defendants' federal due process rights. Second, Defendants argue that to determine whether punitive damages were warranted, the district court required the jury to speculate as to the basis for the Engle findings. Defendants say this exercise violated the Seventh Amendment's Reexamination Clause. Finally, Defendants contend that the district court erred by refusing to apply Florida's comparative fault statute to reduce Plaintiff's damages commensurate with her own fault, as determined by the jury. Alternatively, Defendants argue that Plaintiff waived her right to contest a reduction.

         II. DUE PROCESS CHALLENGE

         A. The Trial Proceedings

         Addressing Defendants' due process argument, we review questions of constitutional law de novo. Nichols v. Hopper, 173 F.3d 820, 822 (11th Cir. 1999). The district court here instructed the jury that, before it could apply the Engle jury findings, it must first determine whether Plaintiff was a member of the Engle class. To be a member of that class, the court explained, Plaintiff had to prove that her mother was addicted to cigarettes containing nicotine and that this addiction was a legal cause of her death. The court further directed that, if the jury found that Plaintiff had proved membership in the Engle class, it must then apply the pertinent findings made in Engle, just as if the jury had determined those facts themselves. Once again, those findings were that: (1) nicotine is addictive and smoking cigarettes causes lung cancer; (2) the Engle defendants (including Defendants) were negligent; (3) the Engle defendants placed cigarettes on the market that were defective and unreasonably dangerous; (4) the Engle defendants concealed material information that was not otherwise known, knowing that the material was false or misleading, or they failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes, or both; and (5) the Engle defendants agreed to conceal the health effects of cigarettes or their addictive nature, with the intention that smokers would rely on this information to their detriment.

         In other words, all that was left for the jury to decide was whether Defendants' conduct was a legal cause of Lasard's injuries for the negligence, strict liability, and concealment claims-if so, the Engle jury findings took care of the rest and established that Defendants had acted tortiously. And to repeat, the question of whether Defendants had concealed material information concerning the health effects or addictive nature of smoking cigarettes was not to be reconsidered by the jury, as that determination had already been made in the earlier Engle proceeding. Instead, as instructed by the court, the only question before the jury on the concealment claims was whether Plaintiff's mother had relied to her detriment on information that the jury was directed to find was both material and had been concealed by Defendants, concerning the health effects or addictive nature of smoking cigarettes. Finally, if the jury found this reliance, it must lastly decide whether this reliance was a legal cause of Lasard's lung cancer and death. The jury found that Lasard had so relied and, given that answer, it found Defendants liable on the concealment claims, as well as the negligence and strict liability claims.

         B. Defendants' Due Process Challenge to the Preclusive Effect of Engle on Plaintiff's Concealment Claims

         1. Defendants' Arguments

         Defendants contend that their due process rights were violated by giving preclusive effect to the Engle jury findings relating to Plaintiff's negligence, strict liability, and concealment claims. Defendants acknowledge, however, that our precedent forecloses a due process challenge to the application of the Engle jury findings on negligence and strict liability claims. Specifically, in Graham v. R.J. Reynolds Tobacco Company, 857 F.3d 1169, 1183-86 (11th Cir. 2017) (en banc), our Court held that treating the Engle jury findings on negligence and strict liability as res judicata did not violate due process, affirming our earlier decision in Walker v. R.J. Reynolds Tobacco Company, 734 F.3d 1278, 12877-90 (11th Cir. 2013). Accordingly, based on this precedent, we likewise hold that the district court's instruction that the jury must apply the Engle findings in deciding Plaintiff's negligence and strict liability claims did not violate Defendants' due process rights.

         Yet, neither Walker nor Graham faced the question whether the Engle jury findings on intentional concealment claims would survive a due process challenge, and, until recently, that has remained an open issue.[2] In both its pre-Graham and post-Graham briefing, Defendants have argued that an intentional concealment claim-depending as it must on a specific statement or omission by a specific defendant-presents due process issues that did not necessarily arise with a class-wide negligence or strict liability claim. Relying largely on the Supreme Court's opinion in Fayerweather v. Ritch, 195 U.S. 276 (1904), Defendants have consistently argued that, to satisfy due process, a court may only give issue-preclusive effect to an earlier jury's findings if that jury "actually decided" the matter that is at issue in the second proceeding. Indeed, in Graham, we assumed without deciding that Defendants are right; that is, that due process requires that the factual matter was actually decided by the jury on whose finding preclusion is sought. See Graham, 857 F.3d at 1181 ("We will assume, without deciding, that the 'actually decided' requirement is a fundamental requirement of due process under Fayerweather . . ."). Acting on that assumption, we ourselves reviewed the Engle proceedings and announced that we were "satisfied that the Engle jury actually decided common elements of the negligence and strict liability of [the Graham defendants]." Id.

         Relying on Graham, Defendants argue in their first supplemental brief that we should likewise review the Engle record to determine whether the concealment found by the Engle jury to have occurred class-wide among all the defendants was necessarily the same concealment or misrepresentation on which Lasard relied in deciding to continue to smoke. Defendants insist that having undertaken this review, we will find it impossible to conclude, based on the unspecified concealment found class-wide by the Engle jury, that the latter necessarily decided that the particular concealment asserted here by Plaintiff occurred.

         Specifically, Defendants say, the Engle jury rendered what Plaintiffs have called "the general conduct findings," which stated, in pertinent part, that the Engle defendants had "failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes, or both." Engle, 945 So.2d at 1277 (emphasis added). In short, these finding indicate the Engle jury's conclusion that the tobacco companies had either not told the public that smoking would damage a person's health or had not made public their awareness that cigarette-smoking is an addictive activity, or maybe both. Yet, given the numerous theories of concealment advanced at the Engle trial, Defendants argue that it is impossible to figure out on which act or acts of concealment the Engle jury was focusing when it made the above findings. And given the fact that our holding in Graham was conditioned on our conclusion that the Florida Supreme Court in Engle and Douglas had determined that the Engle jury had actually decided only those issues that were common to the class as a whole, Graham, 857 F.3d at 1183 ("The only way to make sense of these [Engle] proceedings is that the Florida courts determined that the Engle jury actually decided issues common to the class . . ."), Defendants argue that to be able to apply the Engle general concealment finding to a particular concealment theory presented in a progeny case, one has to be able to identify the common act(s) of concealment that the Engle jury had in mind in reaching its finding.

         That is simply not doable, Defendants argue, given the multiplicity of concealment allegations and the inability to figure out which theories the Engle jury might have discarded versus which theories they found to have been proved by the Engle plaintiffs by a preponderance of the evidence. Finally, with regard to the "general conduct finding," Defendants complain that because it is framed in the disjunctive, the Engle jury findings do not establish whether the Engle jury actually decided that Defendants concealed material information about the health effects of cigarettes or whether instead the jury decided that it was the concealment of the addictive nature of cigarettes that the jury found tortious.

         Defendants note that all of the above problems are magnified in this case because, in attempting to prove her own concealment claim, Plaintiff focused greatly on a very specific theory of concealment: that Defendants had, through misleading advertisements, misled the public into believing that low-tar or low-nicotine cigarettes were healthier than normal cigarettes, when in fact those "low" cigarettes were just as bad for the smoker as were standard cigarettes.

         According to Defendants, the problem with Plaintiff's particular concealment theory is there is no way to determine whether the Engle jury actually bought that argument because its findings give no clue as to what acts of concealment it had actually found. Defendants emphasize that the Engle jury was presented with thousands of different alleged misstatements as to the effects of cigarettes that the jury could have used as the basis for its general finding that something had been concealed. So, ultimately, Defendants say, it is anyone's guess as to what information the Engle jury actually decided had been concealed by Defendants. Taken altogether, Defendants argue that it simply cannot be determined whether the Engle jury actually decided that Defendants fraudulently concealed material information about low-tar cigarettes which is the concealment on which Lasard specifically relied.

         And to underscore the unlikelihood that the Engle jury found that Defendants concealed information about low-tar/low-nicotine cigarettes in particular, Defendants point out that the Florida Supreme Court had premised its decision to give preclusive effect to the Engle findings on the court's conclusion that the jury had decided only those issues that were "common to the entire class." Douglas, 110 So.3d at 422. Because not all of the members of the Engle class smoked low-tar/nicotine cigarettes, Defendants argue that it is impossible to conclude that the Engle jury necessarily based a class-wide finding of concealment on a theory applicable to only some plaintiffs. And, according to Defendants, that is a fairly significant problem for a plaintiff like Searcy, who based a large part of her case on the concealment claims on Defendant's alleged deceptive marketing of low-tar/nicotine cigarettes.

         2. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.