`
`No. 17-___
`
`IN THE
`Supreme Court of the United States
`
`R. J. REYNOLDS TOBACCO COMPANY,
`Petitioner,
`
`v.
`JAN GROSSMAN, as personal representative of the
`Estate of Laura Grossman, 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
`
`
`
`
`
`
`
`
`
`CHARLES R.A. MORSE
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`(212) 326-3939
`
`
`
`
`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
`
`QUESTION PRESENTED
`This case presents a question 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:
`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
`presumed against
`that party
`in
`subsequent
`litigation?
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`AND RULE 29.6 STATEMENT
`The plaintiff below was Jan Grossman, as personal
`representative of the estate of his deceased wife,
`Laura Grossman.
`The defendant below was petitioner R.J. Reynolds
`Tobacco Company. The complaint also named as
`defendants Philip Morris USA 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., which in turn is an indirect,
`wholly owned subsidiary of British American
`Tobacco p.l.c., a publicly held corporation.
`
`
`
`
` iii
`
`TABLE OF CONTENTS
`
`
`Page
`QUESTION 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 PROVISION INVOLVED ....... 2
`STATEMENT OF THE CASE ................................... 2
`A.
`The History Of The Engle
`Litigation ............................................... 4
`1.
`The failed class action in
`Engle ........................................... 4
`The Engle-progeny
`litigation ..................................... 7
`The Proceedings In This Case .............. 8
`The Eleventh Circuit’s En Banc
`Decision In Graham ............................ 10
`REASONS FOR GRANTING THE PETITION ...... 12
`I.
`The Florida Courts’ Decision To Relieve
`Plaintiffs Of The Burden Of
`Establishing Essential Elements Of
`Their Tort Claims Violates Due Process ...... 12
`The Court Should Hold This Petition
`Pending Resolution Of Graham .................... 15
`CONCLUSION ......................................................... 16
`
`B.
`C.
`
`2.
`
`II.
`
`
`
`
`
`iv
`
`TABLE OF CONTENTS
`(continued)
`
`Page
`
`
`APPENDIX A: Order of the Supreme Court of
`Florida (Aug. 31, 2017) .................................. 1a
`APPENDIX B: Opinion of the Fourth District
`Court of Appeal of Florida (Jan. 4, 2017) ..... 3a
`APPENDIX C: Respondent’s Motion to Lift
`Stay .............................................................. 19a
`
`
`
`
`
`
`
`
` v
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`Cox Broad. Corp. v. Cohn,
`420 U.S. 469 (1975) .......................................... 2, 10
`Engle v. Liggett Group, Inc.,
`945 So. 2d 1246 (Fla. 2006) (per curiam) .... passim
`Fayerweather v. Ritch,
`195 U.S. 276 (1904) .......................................... 3, 14
`Flores v. United States,
`137 S. Ct. 2211 (2017) .......................................... 15
`Graham v. R.J. Reynolds Tobacco Co.,
`857 F.3d 1169 (11th Cir. 2017) (en banc),
`petition for cert. pending, No. 17-415
`(filed Sept. 15, 2017) .................................... passim
`Innovention Toys, LLC v. MGA Entm’t,
`Inc.,
`136 S. Ct. 2483 (2016) .......................................... 15
`Kremer v. Chem. Constr. Corp.,
`456 U.S. 461 (1982) .............................................. 12
`Lawrence v. Chater,
`516 U.S. 163 (1996) (per curiam) ........................ 15
`Merrill v. Merrill,
`137 S. Ct. 2156 (2017) .......................................... 15
`NAACP v. Claiborne Hardware Co.,
`458 U.S. 886 (1982) ................................................ 2
`New York v. Cathedral Acad.,
`434 U.S. 125 (1977) ................................................ 2
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Philip Morris USA Inc. v. Douglas,
`110 So. 3d 419 (Fla.),
`cert. denied, 134 S. Ct. 332 (2013) ............... passim
`R.J. Reynolds Tobacco Co. v. Grossman,
`135 So. 3d 289 (Fla. 2014) ................................. 1, 9
`R.J. Reynolds Tobacco Co. v. Grossman,
`96 So. 3d 917 (Fla. Dist. Ct. App. 2012) ........ 1, 8, 9
`Radio Station WOW v. Johnson,
`326 U.S. 120 (1945) ................................................ 2
`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 .............................................. 2
`28 U.S.C. § 1257(a) ...................................................... 2
`
`
`
`
`
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`This case presents a question that
`is also
`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
`respectfully 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 reported at 211 So. 3d 221. Pet.App.3a.
`The order of the Florida Supreme Court declining
`discretionary review
`is available at 2017 WL
`3751318. Pet.App.1a. An earlier opinion of the
`Fourth District Court of Appeal in the same case is
`reported at 96 So. 3d 917 and the order of the Florida
`Supreme Court declining discretionary review on
`that occasion is reported at 135 So. 3d 289.
`JURISDICTION
`The Florida Fourth District Court of Appeal
`affirmed the judgment in a published opinion on
`January 4, 2017. Pet.App.3a. Both parties then
`invoked the discretionary jurisdiction of the Florida
`Supreme Court. On August 31, 2017, the Florida
`Supreme Court declined review of the question
`presented by Petitioner. Pet.App.1a. Respondent’s
`notice
`invoking
`the Florida Supreme Court’s
`jurisdiction remains pending, but addresses a
`question
`(whether the award of compensatory
`damages should be reduced to reflect comparative
`fault, Pet.App.19a), that cannot affect the federal
`issue presented in this petition. Even if the Florida
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`Supreme Court takes jurisdiction and increases the
`award of compensatory damages, the due-process
`issue discussed below “will survive and require
`decision.” Cox Broad. Corp. v. Cohn, 420 U.S. 469,
`480 (1975); see also NAACP v. Claiborne Hardware
`Co., 458 U.S. 886, 907 n.42 (1982) (reasoning that a
`state court’s judgment was final, even though it had
`“remanded for a recomputation of damages”); New
`York v. Cathedral Acad., 434 U.S. 125, 128 n.4 (1977)
`(deeming case final though the state court had
`remanded
`to
`“determine
`the amount of
`the
`Academy’s claim” under the statute at issue); Radio
`Station WOW v. Johnson, 326 U.S. 120, 124–27
`(1945) (concluding that a case was final where
`property was ordered transferred, but the matter
`had been remanded for “an accounting of profits from
`such property”).
` Accordingly, this Court has
`jurisdiction under 28 U.S.C. § 1257(a).
`Reynolds timely filed this petition.
`CONSTITUTIONAL PROVISION INVOLVED
`The Fourteenth Amendment of the United States
`Constitution provides, in relevant part: “No State
`shall … deprive any person of life, liberty, or
`property, without due process of law ….” U.S. Const.
`amend. XIV, § 1.
`STATEMENT OF THE CASE
`longstanding and heretofore universal
`Under
`common-law principles, plaintiffs seeking to rely on
`the outcome of a prior proceeding to establish
`elements 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
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`quotation marks omitted). This “actually decided”
`requirement
`is such a
`fundamental safeguard
`against the arbitrary deprivation of property that it
`is mandated by due process. See Fayerweather v.
`Ritch, 195 U.S. 276, 298–99, 307 (1904).
`In this case and thousands of similar suits,
`however, the Florida courts have jettisoned the
`“actually decided” requirement. According to the
`Florida Supreme Court, members of the class of
`Florida smokers 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
`jury
`class-action
`before
`decertification—for example, that each defendant
`“‘placed cigarettes on the market that were defective
`and unreasonably dangerous’”—to establish the
`tortious conduct elements of their claims without
`demonstrating that the Engle jury actually decided
`that the defendants had engaged in tortious conduct
`relevant to their individual smoking histories. Philip
`Morris USA Inc. v. Douglas, 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 Tobacco Co., 857 F.3d 1169,
`1186 (11th Cir. 2017) (en banc), petition for cert.
`pending, No. 17-415 (filed Sept. 15, 2017).
`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 question as this petition: whether
`due process prohibits plaintiffs from relying on the
`jury
`preclusive effect of the generalized Engle
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`findings to establish elements of their individual
`claims. 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 issue
`presented in this case and the thousands of other
`Engle-progeny cases pending in state and federal
`courts across Florida.
`The Court should hold this petition and dispose of
`it consistent with the disposition of Graham.
`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 domestic
`tobacco manufacturer. As later modified on appeal,
`the plaintiff class included “[a]ll [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.” Engle,
`945 So. 2d at 1256. The class sought relief under a
`variety of
`theories,
`including strict
`liability,
`negligence, fraudulent concealment, and conspiracy
`to fraudulently conceal. Id. at 1256–57 & n.4.
`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
`making 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
`
`
`
`
`
`
`
`
`
`
`
`5
`
`
`sale of all cigarettes is negligent, because cigarettes
`are addictive and cause disease. But the class also
`pressed narrower, more brand-specific theories of
`defect 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
`added). There was “also evidence at trial that some
`filters … utilize[d] glass fibers that could produce
`disease.” 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
`nicotine 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.
`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
`cigarette brands, filtered and nonfiltered, in terms of
`their tar and nicotine levels and the way in which
`they were
`designed,
`tested, manufactured,
`
`
`
`
`
`
`
`
`
`
`
`6
`
`
`advertised, 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
`example, the verdict form asked whether each
`defendant “placed cigarettes on the market that were
`defective 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 “addictive nature of smoking cigarettes.”
`Id. at 1277. The jury answered each of those
`generalized questions in the class’s favor, but its
`findings do not reveal which of the class’s numerous
`underlying theories of liability the jury accepted,
`which it did not consider at all, and which it rejected.
`The Florida Supreme Court ultimately decertified
`the class action. Engle, 945 So. 2d at 1245. But it
`did so only prospectively. In other words, rather
`than ending the ligation altogether, the court broke
`up the class action but permitted class members to
`pursue 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
`actions. Id. at 1269. But it did not explain what it
`meant by “res judicata effect.” See id. at 1284 (Wells,
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
`J., concurring in part and dissenting in part)
`(objecting to this “problematic” directive).
`2. The Engle-progeny litigation
`Following the Florida Supreme Court’s Engle
`decision, 9,000 class members filed timely individual
`actions in state and federal courts in Florida.
`Waggoner 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
`elements of his individual claims.
`In Douglas, the Florida Supreme Court rejected
`the Engle defendants’ argument that federal due
`process prohibits giving such sweeping preclusive
`effect to the Engle findings. 110 So. 3d at 422. In so
`doing, the Florida Supreme Court recognized that
`liability
`the Engle class’s multiple theories of
`“included brand-specific defects” that applied to only
`some cigarettes and that the Engle findings would
`therefore be “useless
`in
`individual actions”
`if
`plaintiffs invoking their preclusive effect had to show
`what the Engle jury had “actually decided,” as
`Florida 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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`B. The Proceedings In This Case
`From the time Laura Grossman and Respondent
`Jan Grossman met at Respondent’s variety store,
`where Laura went to purchase cigarettes, Laura was
`a “heavy smoker.” R.J. Reynolds Tobacco Co. v.
`Grossman, 96 So. 3d 917, 919 (Fla. Dist. Ct. App.
`2012). She developed lung cancer and passed away
`in 1995.
` Respondent, as personal
` See
`id.
`representative of her estate, filed this Engle-progeny
`case against Reynolds in 2007, alleging (as the Engle
`class definition requires) that addiction to cigarettes
`caused Laura’s lung cancer and death.
`At trial, and as relevant here, Respondent claimed
`relief under theories of strict liability, negligence,
`fraudulent concealment, and conspiracy. He 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.
`He thus asked the Court to instruct the jury that, if
`it found he was a member of the Engle class, it
`should conclude that Reynolds was negligent (an
`element 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). Over Reynolds’s objection, the trial
`court gave these instructions. See, e.g., Trial Tr. at
`3742–44 (Apr. 27, 2010).
`
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`The first trial ended in a mistrial. See Pet.App.5a.
`A second trial ended in a verdict for Respondent on
`strict liability (but no other claim). The jury
`awarded just under $2 million in compensatory
`damages and apportioned 70% of fault to Laura
`Grossman, 25% to Reynolds, and 5% to Respondent
`himself. Grossman, 96 So. 3d at 919. Reynolds
`appealed to Florida’s Fourth District Court of Appeal
`and Respondent cross-appealed. In its appeal,
`Reynolds argued that the trial court violated the Due
`findings
`Process Clause by giving the Engle
`preclusive effect, notwithstanding the impossibility
`of determining whether those findings establish
`conduct that harmed Laura Grossman. The Fourth
`District rejected that argument. See id. But the
`court accepted Respondent’s argument on cross-
`appeal that the jury should not have been allowed to
`apportion any fault to him. The court allowed the
`verdict on Engle class membership to stand, but
`ordered a new trial on liability and damages.
`Reynolds sought—and was denied—review by the
`Florida Supreme Court. See R.J. Reynolds Tobacco
`Co. v. Grossman, 135 So. 3d 289 (Fla. 2014).
`Respondent scored a more decisive win in the third
`trial—he prevailed on all his claims.
` The
`apportionment of fault was a mirror image of the
`second trial’s: 75% to Reynolds and 25% to Laura
`Grossman. Damages were much greater: $15
`million in compensatory damages and $22.5 million
`in punitive damages. The jury also awarded medical
`and funeral expenses. After rejecting Reynolds’s
`request that compensatory damages be reduced by
`25% to reflect comparative fault, the trial judge
`
`
`
`
`
`
`
`
`
`
`
`10
`
`
`entered judgment for a little under $38 million.
`Pet.App.7a.
`Reynolds appealed a second time to the Fourth
`District. It raised several arguments, including,
`again, a due-process objection to the use of the Engle
`findings.
` Reynolds also argued
`that
`the
`compensatory-damages awards should have been
`reduced by 25% to reflect comparative fault. The
`Fourth District agreed on
`the
`last point—
`compensatory damages should have been reduced—
`but otherwise
`rejected Reynolds’s arguments,
`including the due-process one. See id. at 11a–17a.
`Both parties invoked the jurisdiction of the Florida
`Supreme Court. On August 31, 2017, the Florida
`Supreme Court declined jurisdiction in Reynolds’s
`case. Respondent’s request—which presents the
`comparative-fault question—remains pending, but
`the question presented here is certain to survive that
`proceeding. Accordingly, the judgment is sufficiently
`final to permit this Court’s exercise of certiorari. See
`Cox Broad., 420 U.S. at 480; supra page 2.
`C. The Eleventh Circuit’s En Banc Decision
`In Graham
`In May of this year, the en banc Eleventh Circuit
`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 negligence claims does not violate due process.
`857 F.3d at 1186.
`The Graham majority refused to accept Douglas ’s
`literal holding that the Engle findings establish
`anything that the Engle jury could have found.
`
`
`
`
`
`
`
`
`
`
`
`11
`
`
`construed Douglas as
`the majority
`Instead,
`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 the
`companies’ 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
`detected in Douglas. Id. at 1185. And this, in the
`majority’s view, defeated the due-process argument
`that “the jury did not actually decide common issues
`of negligence and strict liability.” Id. at 1184.
`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. He emphasized
`that the Engle Phase I verdict form “did not require
`the jury to reveal the theory or theories on which it
`premised its tortious-conduct findings” and that the
`defendants “have never been afforded an opportunity
`to be heard on whether
`the[ ] unreasonably
`dangerous product defect(s) or negligent conduct”
`found by the Engle jury caused harm to any specific
`progeny plaintiff. Graham, 857 F.3d at 1194, 1201
`(Tjoflat, J., dissenting).
`Judge Julie Carnes 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
`
`
`
`
`
`
`
`
`
`
`
`12
`
`
`‘the minimum procedural requirements of the Due
`Process Clause,”’ and would have remanded in light
`of the due-process violation 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 the due-process question that
`is also directly at issue in Graham: whether due
`process prohibits Engle progeny plaintiffs from
`relying on the generalized Phase I findings to
`establish the tortious-conduct elements of their
`individual 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 Eleventh
`Circuit’s divided en banc decision in Graham. 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 consistent 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
`
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`13
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`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
`pending, each seeking millions of dollars in damages.
`The Florida Supreme Court’s decision in Douglas
`and the en banc Eleventh Circuit’s decision in
`Graham allow each Engle-progeny plaintiff to use
`the Engle findings to prove that the defendants
`engaged
`in tortious conduct that
`led to that
`plaintiff’s injuries (or the decedent’s death) without
`requiring the plaintiff to establish that the Engle
`jury actually decided any such thing. And so those
`decisions empower progeny plaintiffs to deprive
`Engle defendants of their property 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 Respondent
`to rely on the Engle Phase I findings to establish that
`the Reynolds cigarettes his wife smoked contained a
`harmful defect without requiring him to establish
`that the Phase I jury had actually decided that issue
`in his favor. The Engle findings do not state whether
`the
`jury found a defect in Reynolds’s filtered
`cigarettes, or its unfiltered cigarettes, or in only
`some of its brands but not in others. For all we
`know, Laura Grossman may have smoked a type of
`Reynolds cigarette that the Engle jury found was not
`defective.
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`14
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`The trial court likewise permitted Respondent to
`use the Phase I findings to establish that the
`advertisements and other statements by Reynolds on
`which Laura Grossman 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 example, the Engle jury may have found
`that Reynolds’s
`only
`fraudulent
`statements
`pertained to the “health 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 Laura Grossman’s alleged reliance on
`statements about addiction that the Engle jury did
`not find to be fraudulent.
`In these circumstances, allowing Respondent to
`invoke the Engle findings to establish the conduct
`elements of his claims—including that the particular
`cigarettes Laura Grossman smoked were defective
`and that the statements on which she allegedly
`relied were fraudulent—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 alternative grounds, and it cannot be
`determined which alternative 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
`constitutionality
`of
`these unprecedented and
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`15
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`fundamentally unfair procedures, this Court’s review
`is urgently needed to prevent the replication of this
`constitutional violation in each of the thousands of
`pending Engle-progeny cases.
`II. The Court Should Hold This Petition
`Pending Resolution Of Graham.
`The Court should hold this petition pending the
`resolution of the petition for a writ of certiorari in
`Graham.
`To ensure similar treatment of similar cases, the
`Court routinely holds petitions that implicate the
`same issue as other cases pending before it, and,
`once the related case is decided, resolves the held
`petitions in a consistent manner. See, e.g., Flores v.
`United States, 137 S. Ct. 2211 (2017); Merrill v.
`Merrill, 137 S. Ct. 2156 (2017); Innovention Toys,
`LLC v. MGA Entm’t, Inc., 136 S. Ct. 2483 (2016); see
`also Lawrence v. Chater, 516 U.S. 163, 166 (1996)
`(per curiam) (noting that the Court has “GVR’d in
`light of a wide range of developments, including [its]
`own decisions”); id. at 181 (Scalia, J., dissenting)
`(“We regularly hold cases that involve the same issue
`as a case on which certiorari has been granted and
`plenary review is being conducted in order that (if
`appropriate) they may be ‘GVR’d’ when the case is
`decided.” (emphasis omitted)).
`Because this case raises the same due-process
`question as Graham, the Court should follow that
`course here to ensure that this case is resolved in a
`consistent manner. If this Court grants certiorari in
`Graham and rules that due process prohibits Engle-
`progeny plaintiffs from relying on the Phase I
`findings to establish elements of their claims, then it
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`16
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`fundamentally unfair to permit the
`would be
`constitutionally infirm judgment in this case to
`stand. Thus, the Court should hold this petition
`pending the resolution of Graham and, if this Court
`grants review and vacates or reverses in Graham, it
`should thereafter grant, vacate, and remand in this
`case.
`
`CONCLUSION
`The Court should hold this petition pending the
`disposition of Graham, and then dispose of this
`petition consistent with its ruling in that case.
`
`CHARLES R.A. MORSE
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`(212) 326-3939
`
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`NOVEMBER 28, 2017
`
`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.
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