throbber

`
`No. 17-___
`
`IN THE
`Supreme Court of the United States
`
`R. J. REYNOLDS TOBACCO COMPANY,
`Petitioner,
`
`v.
`SHARON BLOCK, as personal representative of Lillian
`Kaplan, deceased,
`
`Respondent.
`
`
`
`
`
`
`
`On Petition For A Writ Of Certiorari
`To The Florida District Court of Appeal for the
`Fourth District
`
`
`
`
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`
`
`BENJAMIN M. FLOWERS
`JONES DAY
`325 John H. McConnell
`Blvd., Suite 600
`Columbus, OH 43215
`(614) 469-3939
`
`
`
`
`
`
`MICHAEL A. CARVIN
` Counsel of Record
`YAAKOV ROTH
`JONES DAY
`51 Louisiana Ave., N.W.
`Washington, D.C. 20001
`(202) 879-3939
`mcarvin@jonesday.com
`
`Counsel for Petitioner
`R. J. Reynolds Tobacco Co.
`
`
`

`

`
`
`i
`
`QUESTIONS PRESENTED
`This case presents questions also raised in the
`petition for a writ of certiorari filed September 15,
`2017, in R.J. Reynolds Tobacco Co. v. Graham, No.
`17-415.
`1. When there is no way to tell whether a prior
`jury found particular facts against a party, does due
`process permit those facts to be conclusively pre-
`sumed against that party in subsequent litigation?
`2. Are strict-liability and negligence claims
`based on the findings by the class-action jury in
`Engle v. Liggett Group, Inc. preempted by the many
`federal statutes that manifested Congress’s intent
`that cigarettes continue to be lawfully sold in the
`United States?
`
`

`

`ii
`
`PARTIES TO THE PROCEEDING
`AND RULE 29.6 STATEMENT
`The plaintiff below was Lillian Kaplan. After
`Ms. Kaplan passed away, respondent Sharon Block
`was substituted as personal representative of her es-
`tate.
`The defendant below was petitioner R.J. Reyn-
`olds Tobacco Company. The complaint also named
`as defendants Philip Morris USA Inc., Lorillard, Inc.,
`Lorillard Tobacco Company, Liggett Group LLC, and
`Vector Group, Ltd., but those entities were dismissed
`before trial and were not parties to the appeal.
`Petitioner R.J. Reynolds Tobacco Company is a
`wholly owned subsidiary of R.J. Reynolds Tobacco
`Holdings, Inc., which is a wholly owned subsidiary of
`Reynolds American Inc. (“RAI”), which in turn is an
`indirect, wholly owned subsidiary of British Ameri-
`can Tobacco p.l.c., a publicly held corporation.
`
`

`

`
`iii
`
`TABLE OF CONTENTS
`
`
`2.
`
`Page
`QUESTIONS PRESENTED .......................................i
`PARTIES TO THE PROCEEDING AND
`RULE 29.6 STATEMENT .............................. ii
`PETITION FOR A WRIT OF CERTIORARI ............ 1
`OPINIONS BELOW ................................................... 1
`JURISDICTION ......................................................... 1
`CONSTITUTIONAL PROVISIONS IN-
`VOLVED .......................................................... 1
`STATEMENT OF THE CASE ................................... 2
`A.
`The History Of The Engle Litiga-
`tion ......................................................... 4
`1.
`The failed class action in
`Engle ........................................... 4
`The Engle-progeny litiga-
`tion .............................................. 7
`The Proceedings In This Case .............. 9
`The Eleventh Circuit’s En Banc
`Decision In Graham ............................ 10
`REASONS FOR GRANTING THE PETITION ...... 13
`I.
`The Florida Courts’ Decision To Relieve
`Plaintiffs Of The Burden Of Establish-
`ing Essential Elements Of Their Tort
`Claims Violates Due Process ......................... 13
`
`B.
`C.
`
`
`
`

`

`iv
`
`TABLE OF CONTENTS
`(continued)
`
`Page
`
`II.
`
`Federal Law Preempts The Engle
`Strict-Liability And Negligence Find-
`ings To The Extent They Indict All Cig-
`arettes ............................................................ 16
`III. The Court Should Hold This Petition
`Pending Resolution Of Graham .................... 19
`CONCLUSION ......................................................... 20
`
`APPENDIX A: Order of the Florida Fourth
`District Court of Appeal (Apr. 27, 2017) ....... 1a
`APPENDIX B: Amended Final Judgment of
`the 17th Circuit Court (Dec. 9, 2015) ........... 3a
`
`
`
`
`
`

`

`
` v
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`Engle v. Liggett Group, Inc.,
`945 So. 2d 1246 (Fla. 2006)
`(per curiam) .................................................. passim
`Fayerweather v. Ritch,
`195 U.S. 276 (1904) .......................................... 2, 15
`FDA v. Brown & Williamson Tobacco Co.,
`529 U.S. 120 (2000) .................................... 3, 16, 17
`Fla. Star v. B.J.F.,
`530 So. 2d 286 (Fla. 1988) ............................... 1, 10
`Flores v. United States,
`137 S. Ct. 2211 (2017) .......................................... 19
`Geier v. Am. Honda Motor Co.,
`529 U.S. 861 (2000) .............................................. 16
`Graham v. R.J. Reynolds Tobacco Co.,
`857 F.3d 1169 (11th Cir. 2017)
`(en banc) ....................................................... passim
`Innovention Toys, LLC v. MGA Entm’t, Inc.,
`136 S. Ct. 2483 (2016) .......................................... 19
`Kremer v. Chem. Constr. Corp.,
`456 U.S. 461 (1982) .............................................. 12
`Lawrence v. Chater,
`516 U.S. 163 (1996) (per curiam) ........................ 19
`Merrill v. Merrill,
`137 S. Ct. 2156 (2017) .......................................... 19
`Philip Morris USA Inc. v. Douglas,
`110 So. 3d 419 (Fla.) .................................... passim
`
`
`
`

`

`vi
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`R.J. Reynolds Tobacco Co. v. Marotta,
`214 So. 3d 590 (Fla. 2017) ........................... passim
`Taylor v. Sturgell,
`553 U.S. 880 (2008) ................................................ 2
`Waggoner v. R.J. Reynolds Tobacco Co.,
`835 F. Supp. 2d 1244 (M.D. Fla. 2011).................. 7
`CONSTITUTIONAL AND STATUTORY AUTHORITIES
`U.S. Const. amend. XIV, § 1 ....................................... 2
`U.S. Const. art. VI, § VI, cl. 2 ..................................... 2
`28 U.S.C. § 1257(a) ...................................................... 1
`Alcohol and Drug Abuse Amendments
`of 1983, Pub. L. No. 98-24,
`97 Stat. 175 .......................................................... 16
`Alcohol, Drug Abuse, and Mental Health
`Administration Reorganization Act,
`Pub. L. No. 102-321, 106 Stat. 394 (1992) .......... 16
`Comprehensive Smokeless Tobacco
`Health Education Act of 1986,
`Pub. L. No. 99-252, 100 Stat. 30
`(1986) .................................................................... 16
`Comprehensive Smoking Education Act,
`Pub. L. No. 98-474, 98 Stat. 2200
`(1984) .................................................................... 16
`Federal Cigarette Labeling and
`Advertising Act, Pub. L. No. 89-92,
`79 Stat. 282 (1965) ............................................... 16
`
`
`
`

`

`vii
`
`TABLE OF AUTHORITIES
`(continued)
`
`Public Health Cigarette Smoking Act of
`1969, Pub. L. No. 91-222, 84 Stat. 87
`(1970) .................................................................... 16
`
`Page(s)
`
`
`
`
`
`

`

`
`
`PETITION FOR A WRIT OF CERTIORARI
`This case presents the same questions that are
`presented by the petition for a writ of certiorari in
`R.J. Reynolds Tobacco Co. v. Graham, No. 17-415.
`Petitioner R.J. Reynolds Tobacco Company respect-
`fully asks this Court to hold this petition pending
`resolution of the petition in Graham, and to dispose
`of this case in a manner consistent with the Court’s
`resolution of Graham.
`OPINIONS BELOW
`The decision of the Florida Fourth District Court
`of Appeal is unreported, but available electronically
`at 2017 WL 1508189 (Fla. Dist. Ct. App. Apr. 27,
`2017). Pet. App.1a.
`JURISDICTION
`The Florida Fourth District Court of Appeal af-
`firmed the judgment in an unpublished, per curiam
`opinion on April 27, 2017. Pet. App.1a. Because the
`Florida Supreme Court lacks jurisdiction to review
`such dispositions, Fla. Star v. B.J.F., 530 So. 2d 286,
`288 n.3 (Fla. 1988), the Fourth District’s decision
`constitutes a final judgment from “the highest court
`of a State in which a decision could be had.” 28
`U.S.C. § 1257(a).
`On July 18, 2017, Justice Thomas extended the
`deadline for Reynolds to file a petition for writ of cer-
`tiorari to September 24, 2017. See No. 17A66. Reyn-
`olds timely filed this petition.
`CONSTITUTIONAL PROVISIONS INVOLVED
`The Fourteenth Amendment of the United States
`Constitution provides, in relevant part: “No State
`shall … deprive any person of life, liberty, or proper-
`
`
`
`
`
`
`
`
`
`

`

`2
`
`
`ty, without due process of law ….” U.S. Const.
`amend. XIV, § 1.
`The Supremacy Clause of the Constitution pro-
`vides:
`This Constitution, and the Laws of the United
`States which shall be made in Pursuance thereof;
`and all Treaties made, or which shall be made,
`under the Authority of the United States, shall be
`the supreme Law of the Land; and the Judges in
`every State shall be bound thereby, any Thing in
`the Constitution or Laws of any State to the Con-
`trary notwithstanding.
`U.S. Const. art. VI, § VI, cl. 2.
`STATEMENT OF THE CASE
`Under longstanding and heretofore universal
`common-law principles, plaintiffs seeking to rely on
`the outcome of a prior proceeding to establish ele-
`ments of their claims must demonstrate that those
`elements were “actually litigated and resolved ” in
`their favor in the prior case. Taylor v. Sturgell, 553
`U.S. 880, 892 (2008) (emphasis added; internal quo-
`tation marks omitted). This “actually decided” re-
`quirement is such a fundamental safeguard against
`the arbitrary deprivation of property that it is man-
`dated by due process. See Fayerweather v. Ritch, 195
`U.S. 276, 298–99, 307 (1904).
`In this case and thousands of similar suits, how-
`ever, the Florida courts have jettisoned the “actually
`decided” requirement. According to the Florida Su-
`preme Court, members of the class of Florida smok-
`ers prospectively decertified in Engle v. Liggett
`Group, Inc., 945 So. 2d 1246 (Fla. 2006) (per curiam),
`can rely on the generalized findings rendered by the
`
`
`
`
`
`
`
`
`
`

`

`3
`
`
`class-action jury before decertification—for example,
`that each defendant “‘placed cigarettes on the mar-
`ket that were defective and unreasonably danger-
`ous’”—to establish the tortious conduct elements of
`their claims without demonstrating that the Engle
`jury actually decided that the defendants had en-
`gaged in tortious conduct relevant to their individual
`smoking histories. Philip Morris USA Inc. v. Doug-
`las, 110 So. 3d 419, 424 (Fla.), cert. denied, 134 S. Ct.
`332 (2013). The en banc Eleventh Circuit recently
`rejected a due-process challenge to this misuse of the
`Engle findings. See Graham v. R.J. Reynolds Tobac-
`co Co., 857 F.3d 1169, 1186 (11th Cir. 2017) (en
`banc), petition for cert. pending, No. 17-415 (filed
`Sept. 15, 2017).
`In addition, both the Florida Supreme Court and
`the Eleventh Circuit have disregarded previously
`well-recognized principles of implied preemption by
`permitting plaintiffs to rely on the Engle strict-
`liability and negligence findings, which may rest on a
`determination that all cigarettes produced by the
`Engle defendants were defective—a theory of liabil-
`ity that directly conflicts with federal statutes rest-
`ing on the “collective premise … that cigarettes …
`will continue to be sold in the United States.” FDA
`v. Brown & Williamson Tobacco Co., 529 U.S. 120,
`139 (2000). In Graham, for example, the en banc
`Eleventh Circuit interpreted the Florida Supreme
`Court’s decision in Douglas as holding that the Engle
`jury found that all cigarettes are defective based on
`their inherent health risks and addictiveness, but
`nonetheless concluded that claims relying on that
`sweeping theory of liability are compatible with Con-
`gress’s carefully calibrated regulatory approach to
`
`
`
`
`
`
`
`
`
`

`

`4
`
`
`cigarettes and therefore are not impliedly preempt-
`ed. See Graham, 857 F.3d at 1186, 1191; see also
`R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d
`590, 605 (Fla. 2017) (holding that federal law does
`not preempt Engle-progeny plaintiffs’ strict-liability
`and negligence claims).
`Reynolds and Philip Morris USA, Inc., its co-
`defendant in Graham, have filed a petition for a writ
`of certiorari seeking review of the Eleventh Circuit’s
`decision in that case. That petition presents the
`same due-process and implied-preemption questions
`as this petition: (1) whether due process prohibits
`plaintiffs from relying on the preclusive effect of the
`generalized Engle jury findings to establish elements
`of their individual claims, and (2) whether Engle-
`progeny plaintiffs’ claims for strict liability and neg-
`ligence are impliedly preempted by federal law. See
`R.J. Reynolds Tobacco Co. v. Graham, No. 17-415.
`Graham—a fractured decision in which Judge Tjoflat
`authored a 200-plus-page dissent—is an ideal vehicle
`for this Court to consider the two issues presented in
`this case and the thousands of other Engle progeny
`cases pending in state and federal courts across Flor-
`ida.
`The Court should hold this petition pending the
`disposition of Graham, and then dispose of the peti-
`tion in a manner consistent with its ruling in Gra-
`ham.
`A. The History Of The Engle Litigation
`1. The failed class action in Engle
`The massive class action that gave rise to this
`case began in 1994, when a group of smokers filed
`suit in Florida state court against every major do-
`
`
`
`
`
`
`
`
`
`

`

`5
`
`
`mestic tobacco manufacturer. They sought relief un-
`der a variety of theories, including strict liability,
`negligence, fraudulent concealment, and conspiracy
`to fraudulently conceal. Engle v. Liggett Grp., Inc.,
`945 So. 2d 1246, 1256–57 & n.4 (Fla. 2006) (per
`curiam). And they sought that relief on behalf of a
`class that, as later modified on appeal, included “all
`[Florida] citizens and residents, and their survivors,
`who have suffered, presently suffer or who have died
`from diseases and medical conditions caused by their
`addiction to cigarettes that contain nicotine.” Id. at
`1256.
`The Engle trial court adopted a complex multi-
`phase trial plan. Phase I, which lasted a year, was
`the phase in which the jury was charged with mak-
`ing findings on purported “common issues” relating
`to the defendants’ conduct and the health effects of
`smoking. Id.
`During the Phase I trial, the Engle class broadly
`alleged that all cigarettes are defective, and that the
`sale of all cigarettes is negligent, because cigarettes
`are addictive and cause disease. But the class also
`pressed narrower, more brand-specific theories of de-
`fect and negligence. For example, the class offered
`evidence that “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.” Douglas, 110 So. 3d at 424 (emphasis add-
`ed). There was “also evidence at trial that some fil-
`ters … utilize[d] glass fibers that could produce dis-
`ease.” Id. (emphasis added). There was evidence
`that some cigarettes used “a higher nicotine content
`tobacco called Y-1.” Id. at 423. Evidence suggested
`that ammonia was “sometimes ” used to increase nic-
`
`
`
`
`
`
`
`
`
`

`

`6
`
`
`otine levels. Id. (emphasis added). Some evidence
`focused on “light” cigarettes, while other evidence
`addressed “low-tar” cigarettes.
`The arguments made to support the class’s
`fraudulent concealment and conspiracy claims were
`similarly diverse. The class identified many distinct
`categories of allegedly fraudulent statements by the
`defendants, some pertaining to the health risks of
`smoking, others pertaining to the addictiveness of
`smoking, and still others limited to certain designs
`and brands of cigarettes, such as “light” cigarettes.
`In fact, class counsel acknowledged that the class’s
`concealment allegations rested on “thousands upon
`thousands of statements about” cigarettes. Engle
`Trial Tr. at 35955 (emphasis added).
`The upshot was that “[o]ver the course of the
`yearlong trial,” witnesses distinguished “among ciga-
`rette brands, filtered and nonfiltered, in terms of
`their tar and nicotine levels and the way in which
`they were designed, tested, manufactured, adver-
`tised, and sold.” Graham, 857 F.3d at 1198 (Tjoflat,
`J., dissenting). And this evidence “spann[ed] decades
`of tobacco-industry history,” from 1953 until 1994.
`Id.
`
`Over the defendants’ objection, the class sought
`and secured a Phase I verdict form that asked the
`jury to make only generalized findings on each of its
`claims. On the class’s strict-liability claim, for ex-
`ample, the verdict form asked whether each defend-
`ant “placed cigarettes on the market that were defec-
`tive and unreasonably dangerous.” Engle, 945 So. 2d
`at 1257 n.4. On the concealment and conspiracy
`claims, the jury was asked whether the defendants
`concealed information about “the health effects” or
`
`
`
`
`
`
`
`
`
`

`

`7
`
`
`“addictive nature of smoking cigarettes.” Id. at 1277.
`The jury answered each of those generalized ques-
`tions in the class’s favor, but its findings do not re-
`veal which of the class’s numerous underlying theo-
`ries of liability the jury accepted, which it did not
`consider at all, and which it rejected.
`The Florida Supreme Court ultimately decerti-
`fied the class action. Engle, 945 So. 2d at 1245. But
`it did so only prospectively. In other words, rather
`than ending the ligation altogether, Engle broke up
`the class action but permitted class members to pur-
`sue individual actions. Id. Of critical importance
`here, Engle also made the “pragmatic” decision to
`“retain[] the jury’s Phase I findings” on numerous
`issues—including the jury’s defect, negligence, and
`concealment findings—and to accord those findings
`“res judicata effect” in the subsequent individual ac-
`tions. Id. at 1269. But it did not explain what it
`meant by “res judicata effect.” See id. at 1284 (Wells,
`J., concurring in part and dissenting in part) (object-
`ing to this “problematic” directive).
`2. The Engle-progeny litigation
`Following the Florida Supreme Court’s Engle de-
`cision, 9,000 class members filed timely individual
`actions in state and federal courts in Florida. Wag-
`goner v. R.J. Reynolds Tobacco Co., 835 F. Supp. 2d
`1244, 1250 (M.D. Fla. 2011). These are known as
`“Engle-progeny” cases. In each Engle-progeny case,
`the plaintiff invokes the “res judicata effect” of the
`Phase I findings to establish the tortious-conduct el-
`ements of his individual claims.
`In Douglas, the Florida Supreme Court rejected
`the Engle defendants’ argument that federal due
`
`
`
`
`
`
`
`
`
`

`

`8
`
`
`process prohibits giving such sweeping preclusive ef-
`fect to the Engle findings. 110 So. 3d at 422. In so
`doing, the Florida Supreme Court recognized that
`the Engle class’s multiple theories of liability “in-
`cluded brand-specific defects” that applied to only
`some cigarettes and that the Engle findings would
`therefore be “useless in individual actions” if plain-
`tiffs invoking their preclusive effect had to show
`what the Engle jury had “actually decided,” as Flori-
`da issue-preclusion law required. Id. at 423, 433.
`The court nevertheless held that the findings could
`be given preclusive effect under principles of claim
`preclusion, which “unlike issue preclusion, has no
`‘actually decided’ requirement” and applies to any
`issue that the Engle jury “might ” have decided
`against the defendants. Id. at 435 (emphasis added).
`It was therefore “immaterial” that the “Engle jury
`did not make detailed findings” sufficient to identify
`the actual basis for its verdict. Id. at 432–33.
`Several years after Douglas, the Florida Su-
`preme Court held in Marotta that federal law does
`not “implicitly preempt state law tort claims of strict
`liability and negligence by Engle progeny plaintiffs.”
`214 So. 3d at 605 (alterations omitted). According to
`the court, “permitting Engle progeny plaintiffs to
`bring state law strict liability and negligence claims
`against Engle defendants does not conflict” with fed-
`eral law because Congress did not “intend [ ] to pre-
`clude the States from banning cigarettes.” Id. at
`596, 600. Even if it did, the court continued, “tort
`liability like that in Engle does not amount to such a
`ban” because the Engle jury’s strict-liability and neg-
`ligence verdicts could have rested on a variety of
`grounds, including the ground that the defendants
`
`
`
`
`
`
`
`
`
`

`

`9
`
`
`“intentionally increased the amount of nicotine in
`their products,” rather than on “the inherent charac-
`teristics of all cigarettes.” Id. at 601. Under the ra-
`tionale of Douglas, which concerns itself with what
`could have been decided rather than what was actu-
`ally decided, id. at 593, the possibility of a narrower
`liability theory was enough to save the strict-liability
`and negligence findings from implied preemption.
`B. The Proceedings In This Case
`Lillian Kaplan smoked from 1945 until 1994,
`when she was diagnosed with COPD. She filed this
`Engle-progeny case against Reynolds in 2007, alleg-
`ing (as the Engle class definition requires) that ad-
`diction to cigarettes caused her COPD. After she
`passed away, the trial court substituted her daugh-
`ter, Sharon Block, as personal representative of the
`estate.
`At trial, and as relevant here, Block claimed re-
`lief under theories of strict liability, negligence,
`fraudulent concealment, and conspiracy. She sought
`to take advantage of the res judicata effect accorded
`to the Engle findings, arguing that the Engle jury
`verdict established defect, negligence, fraudulent
`concealment, and conspiracy in all progeny cases.
`She thus asked the Court to instruct the jury that, if
`it found Kaplan to be a member of the Engle class, it
`should conclude that Reynolds was negligent (an el-
`ement of the negligence claim); that it sold defective
`products (an element of the strict-liability claim);
`that it concealed information about the health effects
`or addictive nature of smoking (an element of
`fraudulent concealment); and that it concealed this
`information in agreement with other companies and
`industry organizations (an element of conspiracy).
`
`
`
`
`
`
`
`
`
`

`

`10
`
`
`Over Reynolds’s objection, the trial court gave these
`instructions. See, e.g., Trial Tr. at 5256–58.
`The jury found for Block on her strict-liability,
`negligence, fraudulent concealment, and conspiracy
`theories. Reynolds appealed to Florida’s Fourth Dis-
`trict Court of Appeal. There, it raised two argu-
`ments that are relevant here. First, Reynolds argued
`that the trial court violated the Due Process Clause
`by giving the Engle findings preclusive effect, not-
`withstanding
`the
`impossibility of determining
`whether those
`findings establish conduct that
`harmed Kaplan. Second, Reynolds argued that fed-
`eral law preempted the defect and negligence claims
`to the extent the Engle findings were construed as
`resting on the theory that all cigarettes are defective.
`The Fourth District affirmed in a per curiam,
`unpublished decision that contains no reasoning.
`And because the Florida Supreme Court lacks juris-
`diction to review to such decisions, Fla. Star, 530
`So. 2d at 288 n.3, Reynolds had exhausted its state
`remedies.
`C. The Eleventh Circuit’s En Banc Decision
`In Graham
`Several weeks after the Fourth District issued its
`final opinion in this case, the en banc Eleventh Cir-
`cuit issued its opinion in Graham v. R.J. Reynolds
`Tobacco Co., which held by a 7-3 vote that permitting
`plaintiffs to rely on the Engle findings to establish
`the conduct elements of their strict-liability and neg-
`ligence claims does not violate due process, and fur-
`ther held that federal law does not impliedly
`preempt those claims. 857 F.3d at 1186, 1191.
`
`
`
`
`
`
`
`
`
`

`

`
`
`11
`
`On the due-process issue, the Graham majority
`refused to accept Douglas ’s literal holding that the
`Engle findings establish anything that the Engle jury
`could have found. Instead, the majority construed
`Douglas as containing a holding about what the
`Engle jury actually found—namely, that when the
`jury rendered a verdict for the class on strict liability
`and negligence, what it had in mind was “that all of
`defendants’ cigarettes cause disease and addict
`smokers.” 857 F.3d at 1176. The Graham majority
`regarded itself as bound to give full faith and credit
`to this version of the findings that it thought it de-
`tected in Douglas. Id. at 1185. And this, in the ma-
`jority’s view, defeated the due-process argument that
`“the jury did not actually decide common issues of
`negligence and strict liability.” Id. at 1184.
`On the implied-preemption issue, the Graham
`majority held that federal law does not foreclose tort
`liability premised on the theory that all cigarettes
`are defective because, in the court’s view, “[n]othing”
`in any federal statute “reflects a federal objective to
`permit the sale or manufacture of cigarettes.” 857
`F.3d at 1188. As a result, federal law does not dis-
`place state-law “tort liability based on the danger-
`ousness of all cigarettes manufactured by the tobacco
`companies.” Id. at 1191.
`Three judges wrote separately in dissent. In an
`opinion that ran to more than 200 pages, Judge
`Tjoflat concluded that giving preclusive effect to the
`Engle findings violates due process and that, in the
`alternative, the Engle-progeny plaintiffs’ strict-
`liability and negligence claims are
`impliedly
`preempted. He emphasized that the Engle Phase I
`verdict form “did not require the jury to reveal the
`
`
`
`
`
`
`
`
`
`

`

`12
`
`
`theory or theories on which it premised its tortious-
`conduct findings” and that the defendants “have nev-
`er been afforded an opportunity to be heard on
`whether the[ ] unreasonably dangerous product de-
`fect(s) or negligent conduct” found by the Engle jury
`caused harm to any specific progeny plaintiff. Gra-
`ham, 857 F.3d at 1194, 1201 (Tjoflat, J., dissenting).
`Judge Tjoflat further explained that “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.” Id. at 1194.
`Judge Julie Carnes sided with the majority on
`the implied-preemption issue, but agreed with Judge
`Tjoflat on the due-process issue, reasoning that the
`Engle findings “are too non-specific to warrant them
`being given preclusive effect in subsequent trials.”
`Graham, 857 F.3d at 1191 (Carnes, J., concurring in
`part and dissenting in part). Finally, Judge Wilson
`was “not content that the use of the Engle jury’s
`highly generalized findings in other forums meets
`‘the minimum procedural requirements of the Due
`Process Clause,”’ and would have remanded in light
`of the due-process violation without reaching the im-
`plied-preemption issue. Id. at 1314–15 (Wilson, J.,
`dissenting) (quoting Kremer v. Chem. Constr. Corp.,
`456 U.S. 461, 481 (1982)).
`Reynolds, along with PM USA, petitioned for a
`writ of certiorari in Graham.
`REASONS FOR GRANTING THE PETITION
`This petition raises due-process and implied-
`preemption questions that are also directly at issue
`in Graham: whether due process prohibits Engle
`
`
`
`
`
`
`
`
`
`

`

`13
`
`
`progeny plaintiffs from relying on the generalized
`Phase I findings to establish the tortious-conduct el-
`ements of their individual claims, and whether fed-
`eral law impliedly preempts Engle-progeny plaintiffs’
`strict-liability and negligence claims. Although this
`Court has denied several previous petitions raising a
`due-process challenge to the preclusive effect of the
`Engle findings, those petitions all predated the Elev-
`enth Circuit’s divided en banc decision in Graham as
`well as the Florida Supreme Court’s preemption rul-
`ing in Marotta. Now that both the Florida Supreme
`Court and en banc Eleventh Circuit have addressed
`the due-process and preemption issues, the questions
`presented are fully ripe for review in Graham.
`The Court should therefore hold this petition
`pending the outcome of Graham and then dispose of
`this petition consistently with its ruling in that case.
`I. The Florida Courts’ Decision To Relieve
`Plaintiffs Of The Burden Of Establishing
`Essential Elements Of Their Tort Claims
`Violates Due Process.
`As explained at length in the petition for a writ
`of certiorari filed in Graham, the Florida state and
`federal courts are engaged in the serial deprivation
`of the Engle defendants’ due-process rights. This
`Court is the only forum that can provide relief from
`the unconstitutional procedures that have now been
`endorsed by both the Florida Supreme Court and the
`en banc Eleventh Circuit. Almost 200 progeny cases
`have been tried, and thousands more remain pend-
`ing, each seeking millions of dollars in damages.
`The Florida Supreme Court’s decision in Douglas
`and the Eleventh Circuit’s decision in Graham allow
`
`
`
`
`
`
`
`
`
`

`

`14
`
`
`each Engle-progeny plaintiff to use the Engle find-
`ings to prove that the defendants engaged in tortious
`conduct that led to that plaintiff’s injuries (or the de-
`cedent’s death) without requiring the plaintiff to es-
`tablish that the Engle jury actually decided any such
`thing. And so those decisions empower progeny
`plaintiffs to deprive Engle defendants of their prop-
`erty without any assurance that any factfinder has
`adjudicated critical elements of their claims—indeed,
`despite the possibility that the Engle jury may have
`resolved at least some of those elements in favor of
`the defendants.
`In this case, the trial court permitted Block to re-
`ly on the Engle Phase I findings to establish that the
`Reynolds cigarettes her mother smoked contained a
`harmful defect without requiring her to establish
`that the Phase I jury had actually decided that issue
`in her favor. The Engle findings do not state wheth-
`er the jury found a defect in Reynolds’s filtered ciga-
`rettes, or its unfiltered cigarettes, or in only some of
`its brands but not in others. For all we know,
`Kaplan may have smoked a type of Reynolds ciga-
`rette that the Engle jury found was not defective.
`The trial court likewise permitted Block to rely
`on the Phase I findings to establish that the adver-
`tisements and other statements by Reynolds on
`which Kaplan supposedly relied were fraudulent.
`The generalized Phase I verdict form, however, did
`not require the jury to identify which statements it
`found to be fraudulent from among the “thousands
`upon thousands of statements” on which the class’s
`concealment claim rested. Engle Tr. 35955. For ex-
`ample, the Engle jury may have found that Reynolds’
`only fraudulent statements pertained to the “health
`
`
`
`
`
`
`
`
`
`

`

`15
`
`
`effects” of smoking and not to its “addictive nature”—
`as the disjunctively worded verdict form would have
`permitted, Engle, 945 So. 2d at 1277—but the jury in
`this case may have premised
`its
`fraudulent-
`concealment verdict exclusively on Kaplan’s alleged
`reliance on statements about addiction that the
`Engle jury did not find to be fraudulent.
`In these circumstances, allowing Block to invoke
`the Engle findings to establish the conduct elements
`of her claims—including that the particular ciga-
`rettes Kaplan smoked were defective and that the
`statements on which she allegedly relied were fraud-
`ulent—violates due process. See, e.g., Fayerweather,
`195 U.S. at 307 (holding, as a matter of federal due
`process, that where preclusion is sought based on
`findings that may rest on any of two or more alterna-
`tive grounds, and it cannot be determined which al-
`ternative was actually the basis for the finding, “the
`plea of res judicata must fail”).
`Now that both the Florida Supreme Court and
`the en banc Eleventh Circuit have upheld the consti-
`tutionality of these unprecedented and fundamental-
`ly unfair procedures, this Court’s review is urgently
`needed to prevent the replication of this constitu-
`tional violation in each of the thousands of pending
`Engle-progeny cases.
`II. Federal Law Preempts The Engle Strict-
`Liability And Negligence Findings To The
`Extent They Indict All Cigarettes.
`Construing the generalized Engle findings as
`resting on the common theory that all cigarettes are
`defective—as the en banc Eleventh Circuit did in
`Graham, 857 F.3d at 1176—might help satisfy the
`
`
`
`
`
`
`
`
`
`

`

`16
`
`
`“actually decided” requirement, but that construction
`ignores the actual Engle record. It also runs head
`first into a preemption problem: Congress has decid-
`ed that cigarettes are a lawful product that should
`remain on the market and has enacted several feder-
`al statutes to further that policy objective.
`As explained in the Graham petition, conflict
`preemption bars the imposition of state-law tort lia-
`bility based on conduct that Congress has specifically
`auth

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