throbber

`
`No. 18-551
`================================================================
`
`In The
`Supreme Court of the United States
`
`---------------------------------  ---------------------------------
`
`PHILIP MORRIS USA INC.,
`
`Petitioner,
`
`Respondent.
`
`v.
`
`ELAINE JORDAN,
`
`---------------------------------  ---------------------------------
`
`On Petition For A Writ Of Certiorari
`To The Florida First District Court Of Appeal
`
`---------------------------------  ---------------------------------
`
`BRIEF IN OPPOSITION
`
`---------------------------------  ---------------------------------
`
`JOHN S. MILLS
` Counsel of Record
`COURTNEY BREWER
`THE MILLS FIRM, P.A.
`325 North Calhoun Street
`Tallahassee, Florida 32301
`(850) 765-0897
`jmills@mills-appeals.com
`
`November 5, 2018
`
`Counsel for Respondent
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`QUESTION PRESENTED
`
`
`
`The question framed in the petition is not pre-
`
`sented in this case. The only due process question ac-
`tually presented is whether a defendant has the right
`to relitigate the meaning of a partial verdict that ulti-
`mately contributed to a final judgment between the
`same parties involving the same claims when the judg-
`ment is reversed for further proceedings on those
`claims, where the appellate court expressly deter-
`mined the meaning of the partial verdict and how it
`would be applied during proceedings on remand.
`(There is no claim that the parties were deprived of no-
`tice or an opportunity to be heard at any point.)
`
`
`
`

`

`ii
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED...................................
`i
`TABLE OF CONTENTS ......................................
`ii
`TABLE OF AUTHORITIES .................................
`iii
`BRIEF IN OPPOSITION .....................................
`1
`COUNTERSTATEMENT OF THE CASE ...........
`2
`REASONS FOR DENYING THE PETITION ......
`7
`
`I. Philip Morris Did Not Preserve Any Due
`Process Issue Below ...................................
` II. The Only Due Process Issue Arguably Pre-
`sented by the Facts of This Case Is Not
`Worthy of Certiorari Review .....................
` III. The Court Should Not Hold and Should
`Promptly Deny the Petition ....................... 15
`CONCLUSION ..................................................... 17
`
`
`7
`
`9
`
`

`

`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Boatright v. Philip Morris USA Inc., 217 So. 3d
`166 (Fla. Dist. Ct. App. 2018) .................................. 15
`Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d
`1068 (11th Cir. 2018) ......................................... 12, 16
`Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.
`2006) ................................................................ passim
`Fayerweather v. Ritch, 195 U.S. 276 (1904) .................. 7
`Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ......... 9
`Graham v. R.J. Reynolds Tobacco Co., 857 F.3d
`1169 (11th Cir. 2017), cert. denied, 138 S. Ct.
`646 (2018) .................................................... 11, 12, 16
`Hamilton v. R.L. Best Int’l, 996 So. 3d 233 (Fla.
`Dist. Ct. App. 2008) ................................................... 8
`Hammond v. State, 34 So. 3d 58 (Fla. Dist. Ct.
`App. 2010) .................................................................. 8
`Hernandez v. New York, 500 U.S. 253 (1991) ............. 15
`Philip Morris USA Inc. v. Douglas, 110 So. 3d
`419
`(Fla.), cert. denied, 571 U.S. 889
`(2013) ................................................. 7, 11, 13, 14, 15
`Philip Morris USA Inc. v. Duignan, 243 So. 3d
`426 (Fla. Dist. Ct. App. 2017) .................................. 10
`R.J. Reynolds Tobacco Co. v. Engle, 552 U.S. 941
`(2007) ....................................................................... 14
`R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d
`1060 (Fla. Dist. Ct. App. 2011), cert. denied,
`566 U.S. 905 (2012) ........................................... 10, 11
`
`

`

`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`R.J. Reynolds Tobacco Co. v. Sikes, 191 So. 3d
`491 (Fla. Dist. Ct. App. 2016) .................................. 16
`Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d
`1342 (11th Cir. 2018) ............................................... 16
`Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d
`1219 (Fla. 2016) ....................................................... 13
`United States v. Jones, 565 U.S. 400 (2012) ................. 9
`Walker v. R.J. Reynolds Tobacco Co., 734 F.3d
`1278 (11th Cir. 2013), cert. denied, 134 S. Ct.
`2727 (2014) .............................................................. 12
`Wood v. Milyard, 566 U.S. 463 (2012) ........................... 9
`
`STATUTES
`Fla. Stat. § 569.23 (2017) ............................................ 16
`
`RULES AND REGULATIONS
`Sup. Ct. R. 10 .............................................................. 15
`Sup. Ct. R. 14.1(g)(i)...................................................... 8
`Sup. Ct. R. 23.3 ........................................................... 16
`Fla. R. App. P. 9.210(b)(3) ............................................. 8
`Fla. R. App. P. 9.210(b)(5) ............................................. 8
`
`

`

`1
`
`BRIEF IN OPPOSITION
`Elaine Jordan respectfully submits that the Court
`
`should promptly deny the petition for writ of certiorari
`filed by Philip Morris USA Inc., and deny its request
`to delay disposition of this petition pending disposition
`of petitions Philip Morris says it will file in two other
`cases next month.
`
`First, the question Philip Morris seeks to present
`
`to this Court was not adequately presented to the state
`courts below, so it is not preserved here.
`
`Second, that question is not presented by the facts
`
`of this case in any event. Even if one were to accept
`Philip Morris’s answer to the question it seeks to pre-
`sent, the judgment under review would remain valid
`because the Florida Supreme Court did, in fact, deter-
`mine that the subject elements were decided in peti-
`tioner’s favor by the jury in the class action trial. The
`only due process question that is actually presented in
`this case is whether the Due Process Clause gives a
`defendant the right to relitigate the meaning of a ver-
`dict that resulted in a final judgment between the
`same parties involving the same claims when the judg-
`ment is reversed for further proceedings on those
`claims, but the appellate court expressly determined
`the meaning of the verdict and how it would be applied
`during proceedings on remand. There are no reasons
`to grant certiorari on this question or any other itera-
`tion of it as there is no split of authority and no im-
`portant, debatable issue of federal law warrants this
`
`

`

`2
`
`Court’s review. There is no claim the defendant did not
`have adequate notice and opportunity to be heard.
`
`Third, Philip Morris’s request that the Court hold
`
`this petition pending resolution of petitions it intends
`to file in the future should be rejected as not only un-
`supported by precedent, but also as an abuse of the
`writ.
`
`---------------------------------  ---------------------------------
`
`COUNTERSTATEMENT OF THE CASE
`As in each of the twenty-four times Philip Morris
`
`or one of its codefendants have unsuccessfully peti-
`tioned this Court for certiorari on the same due process
`challenge to the Florida Supreme Court’s holding in
`Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.
`2006),1 the dispute between the parties is less about
`
`
`1 R.J. Reynolds Tobacco Co. v. Graham, 138 S. Ct. 646 (2018);
`
`R.J. Reynolds Tobacco Co. v. Grossman, 138 S. Ct. 748 (2018);
`Philip Morris USA Inc. v. Naugle, 138 S. Ct. 735 (2018); R.J. Reyn-
`olds Tobacco Co. v. Turner, 138 S. Ct. 736 (2018); R.J. Reynolds To-
`bacco Co. v. Block, 138 S. Ct. 733 (2018); R.J. Reynolds Tobacco Co.
`v. Monroe, 138 S. Ct. 923 (2018); R.J. Reynolds Tobacco Co. v.
`Lewis, 138 S. Ct. 923 (2018); Philip Morris USA Inc. v. Lourie, 138
`S. Ct. 923 (2018); R.J. Reynolds Tobacco Co. v. Walker, 134 S. Ct.
`2727 (2014); Philip Morris USA Inc. v. Barbanell, 134 S. Ct. 2726
`(2014); R.J. Reynolds Tobacco Co. v. Brown, 134 S. Ct. 2726 (2014);
`R.J. Reynolds Tobacco Co. v. Kirkland, 134 S. Ct. 2726 (2014); R.J.
`Reynolds Tobacco Co. v. Mack, 134 S. Ct. 2726 (2014); Lorillard
`Tobacco Co. v. Mrozek, 134 S. Ct. 2726 (2014); R.J. Reynolds To-
`bacco Co. v. Koballa, 134 S. Ct. 2727 (2014); R.J. Reynolds Tobacco
`Co. v. Smith, 134 S. Ct. 2727 (2014); R.J. Reynolds Tobacco Co. v.
`Sury, 134 S. Ct. 2727 (2014); R.J. Reynolds Tobacco Co. v. Town-
`send, 134 S. Ct. 2727 (2014); Philip Morris USA Inc. v. Douglas,
`
`
`

`

`3
`
`the resolution of any issue of constitutional law than it
`is a dispute over the factual history of this litigation.
`
`Because Philip Morris never made an appellate
`
`record of raising this issue in the trial court below,
`there are no record documents about most of the pro-
`cedural history of this case during its class phases to
`include in the appendix hereto. The few citations
`Philip Morris provides in its petition are not to the rec-
`ord in this case. Accordingly, if the Court were to grant
`certiorari and consider the merits of the question
`Philip Morris seeks to present, it would have to allow
`the parties to go beyond the record below and provide
`materials from the hundreds of thousands of pages of
`record generated in the class proceedings. Here is what
`those documents would ultimately demonstrate:
`
`Elaine Jordan is a member of the class defined in
`
`a class action complaint filed in Florida state court in
`1994 against Philip Morris and some other major cig-
`arette manufacturers that asserted claims for strict li-
`ability, negligence, fraud, and conspiracy to commit
`fraud as well as other claims not at issue here.
`
`After class certification was affirmed on interlocu-
`
`tory appeal, there was a year-long jury trial on the is-
`sues the trial court determined were common to the
`
`
`134 S. Ct. 332 (2013); R.J. Reynolds Tobacco Co. v. Clay, 133 S. Ct.
`650 (2012); R.J. Reynolds Tobacco Co. v. Gray, 132 S. Ct. 1810
`(2012); R.J. Reynolds Tobacco Co. v. Hall, 132 S. Ct. 1795 (2012);
`R.J. Reynolds Tobacco Co. v. Campbell, 132 S. Ct. 1795 (2012); R.J.
`Reynolds Tobacco Co. v. Martin, 132 S. Ct. 1794 (2012); R.J. Reyn-
`olds Tobacco Co. v. Engle, 552 U.S. 941 (2007).
`
`

`

`4
`
`class, followed by trials on the individual elements of
`three class representative claims and punitive dam-
`ages for the class.
`
`Philip Morris had full notice and an opportunity
`
`to be heard on the issues to be tried during that phase
`as well as on the phrasing of the special verdict form
`to be used and the jury instructions to be given. All
`parties were well aware that the purpose of the verdict
`was to resolve liability elements that were common to
`all class members’ claims.
`
`After the jury returned a special verdict largely in
`
`favor of the class, Philip Morris had full notice and an
`opportunity to be heard in the trial court on the mean-
`ing and effect of the jury’s verdict. After two further
`trial phases, after which Philip Morris again had full
`notice and opportunity to be heard on the meaning and
`effect of the original verdict, the trial court entered a
`final judgment for $145 billion in punitive damages for
`the class and $12.7 million in compensatory damages
`for the three class representatives.
`
`After an intermediary appellate court reversed
`
`the judgment in total, the Florida Supreme Court
`granted review, approved the original decision to cer-
`tify the class, affirmed the compensatory damage
`awards to the class representatives, reversed the
`award of punitive damages to the class as both prema-
`ture and excessive, and held that each class member
`would have to prove their claims in individual proceed-
`ings to follow.
`
`

`

`5
`
`During this appeal, Philip Morris again had full
`
`notice and opportunity to be heard on the meaning and
`effect of the jury’s original findings. The Florida Su-
`preme Court reviewed each finding and determined
`which findings applied to all class members and which
`findings were not common to the class.
`
`In its initial opinion, the Florida Supreme Court
`
`determined that several findings were common to the
`class, while others were too generalized to be applied
`on a class-wide basis. Concluding that the remaining
`issues to be resolved on remand were too individual-
`ized for continued class treatment, the court decerti-
`fied the class and gave class members one year to file
`individual actions to complete the litigation of their
`claims. It held that the findings it had approved as
`common to the class would have “res judicata effect” in
`those further proceedings on remand.
`
`Philip Morris and the other defendants sought re-
`
`hearing, arguing that some of the findings that had
`been approved were not common to the class. The court
`granted rehearing in part and changed its ruling as to
`some, but not all of the approved findings.
`
`The finally approved findings at issue here are
`
`that Philip Morris was negligent, that its cigarettes
`were unreasonably dangerous (the liability element on
`the strict liability claim), that it had fraudulently con-
`cealed the dangers of its cigarettes, and that it con-
`spired with others to fraudulently conceal those
`dangers. The findings that the Florida Supreme Court
`held were too individualized to have res judicata effect
`
`

`

`6
`
`included findings that Philip Morris had made fraud-
`ulent misrepresentations about the dangers of its cig-
`arettes and had conspired with others to make such
`fraudulent misrepresentations.
`
`Philip Morris and the other defendants sought cer-
`
`tiorari in this Court raising essentially the same due
`process challenge raised here. This Court denied certi-
`orari.
`
`Turning to matters that at least were reflected in
`
`the record on appeal below, Jordan instituted these in-
`dividual proceedings on remand through an Engle-
`progeny complaint filed in Florida state court. After an
`eleven-day trial (excluding jury selection) in 2015, the
`jury concluded that (1) Jordan had proven that she was
`a member of the class entitled to prevail on her negli-
`gence and strict liability claims because she had devel-
`oped chronic pulmonary disease (“COPD”) as a result
`of becoming addicted to smoking Philip Morris’s ciga-
`rettes, (2) Philip Morris had failed to prove its statute
`of limitation defense that she should have known she
`had COPD before May 5, 1990, and (3) Jordan had
`proven that Philip Morris’s concealment of the dangers
`of smoking (both individually and through its conspir-
`acy) was a legal cause of her COPD. (T:4652-60;
`R:17,818-19.) It determined that Jordan was also neg-
`ligent and apportioned sixty percent of fault to Philip
`Morris and forty percent to Jordan, and awarded
`$7,795,000 in compensatory damages, and $3,205,000
`in punitive damages. (R:17,820-21, 18,085.)
`
`

`

`7
`
`Philip Morris appealed the resulting judgment to
`
`the Florida First District Court of Appeal, which af-
`firmed without elaboration. Philip Morris had raised
`several issues on appeal, but the only due process ar-
`gument it made was as follows (quoting it in its en-
`tirety):
`
`PM USA preserves its position that it vi-
`
`olates due process to allow Plaintiff to use the
`Engle findings to establish the conduct ele-
`ments of her claims because it is impossible to
`determine whether the Engle jury resolved
`anything relevant to Plaintiff ’s claims. Fayer-
`weather v. Ritch, 195 U.S. 276, 307 (1904).
`Although the Florida Supreme Court has re-
`jected this argument, Douglas, 110 So. 3d at
`430-36, Defendants preserve it for review by
`the U.S. Supreme Court.
`
`(Amended Initial Brief at 49.) If Philip Morris believed
`it had raised this issue anywhere in the more than
`5000-page record on appeal, it did not advise the ap-
`pellate court. Indeed, it did not reference any ruling by
`the trial court on this issue.
`
`---------------------------------  ---------------------------------
`
`REASONS FOR DENYING THE PETITION
`I. Philip Morris Did Not Preserve Any Due
`Process Issue Below.
`At no point in either the petition before this Court
`
`or the initial brief filed in the state appellate court be-
`low has Philip Morris preserved a due process
`
`

`

`8
`
`argument by pointing to any ruling by the trial court
`on the due process claim it seeks to make here. Indeed,
`the record in this case does not include even excerpts
`from the record of the class proceedings. For this Court
`to address the merits of the issue Philip Morris seeks
`to have it review, it would have to go beyond the record
`and look at the hundreds of thousands of pages of tran-
`scripts and filings that were not presented to the court
`below.
`
`This Court’s Rule 14.1(g)(i) required Philip Morris
`
`to specify the “stage in the proceedings, both in the
`court of first instance and in the appellate courts, when
`the federal questions sought to be reviewed were
`raised,” including the “method or manner of raising
`them and the way in which they were passed on by
`those courts . . . with specific references to the places
`in the record where the matter appears . . . so as to
`show that the federal question was timely and properly
`raised.” Florida’s preservation law and procedural
`rules similarly require the appellant to brief how an
`issue was raised in and disposed of in the trial court
`with record citations and to provide more than “only
`conclusory argument” to preserve an argument for ap-
`pellate review. Fla. R. App. P. 9.210(b)(3), (5); Ham-
`mond v. State, 34 So. 3d 58, 59 (Fla. Dist. Ct. App.
`2010); see also Hamilton v. R.L. Best Int’l, 996 So. 3d
`233, 235 (Fla. Dist. Ct. App. 2008) (“It is the decision of
`the lower tribunal that is reviewed on appeal, not the
`issue.”).
`
`In short, because Philip Morris did not adequately
`
`preserve a due process argument in the lower courts,
`
`

`

`9
`
`this Court should deny certiorari even if it otherwise
`found the question to be worthy of review. See, e.g.,
`Wood v. Milyard, 566 U.S. 463, 473 (2012) (“For good
`reason, appellate courts ordinarily abstain from enter-
`taining issues that have not been raised and preserved
`in the court of first instance.”); United States v. Jones,
`565 U.S. 400, 413 (2012) (arguments not preserved be-
`low are forfeited); Gonzales v. Duenas-Alvarez, 549 U.S.
`183, 194 (2007) (declining to consider claims not con-
`sidered below).
`
`
`II. The Only Due Process Issue Arguably Pre-
`sented by the Facts of This Case Is Not Wor-
`thy of Certiorari Review.
`Even if Philip Morris had made the same argu-
`
`ments in the trial court as it makes here, certiorari
`would still be unwarranted. As an initial matter, the
`question phrased in the petition regarding elements of
`Respondent’s claims – whether due process requires a
`“showing that those elements were actually decided in
`their favor in the prior proceeding” – is not even pre-
`sented in this case. Even assuming Philip Morris is cor-
`rect that its question should be answered in the
`affirmative, Philip Morris’s rights were not violated be-
`cause Respondent can easily make such a showing.
`
`After all parties, including Philip Morris, had full
`
`notice and opportunity to be heard at every turn in the
`trial court, intermediate court of appeals, and Florida
`Supreme Court, the latter court reviewed the hun-
`dreds of thousands of pages of appellate record and
`
`

`

`10
`
`determined that the jury’s findings did, in fact, satisfy
`the common elements of all class members’ claims.
`
`This was far from a complete victory for the class.
`
`Not only did the court fully reverse the award of puni-
`tive damages, it also held that some of the jury’s find-
`ings were insufficient to establish those elements. For
`example, it held that the jury’s findings that the de-
`fendants made fraudulent misrepresentations was not
`common to every member of the class for the obvious
`reason that not all class members could have heard
`each misrepresentation and thus depended on “highly
`individualized determinations.” Engle, 945 So. 2d at
`1255, 1269.
`
`On the other hand, it approved the fraudulent con-
`
`cealment findings because they did not rely on specific
`fraudulent statements, but instead simply relied on
`the jury’s necessary conclusion that “the tobacco com-
`panies had a duty to disclose” the dangers they knew
`their cigarettes posed. R.J. Reynolds Tobacco Co. v.
`Martin, 53 So. 3d 1060, 1067-68 (Fla. Dist. Ct. App.
`2011), cert. denied, 566 U.S. 905 (2012); accord Philip
`Morris USA Inc. v. Duignan, 243 So. 3d 426, 443 (Fla.
`Dist. Ct. App. 2017).
`
`To be sure, Philip Morris continues to disagree
`
`with the Florida Supreme Court’s determinations in
`Engle by contending that the negligence and strict lia-
`bility findings might not have been common to all class
`members because they could have only applied to cer-
`tain kinds of cigarettes but not others. And it continues
`to speculate that the fraudulent concealment findings
`
`

`

`11
`
`might not have been common to all class members be-
`cause they might have involved concealing information
`only relevant to certain kinds of cigarettes. The point
`is that this was a dispute that was resolved between
`these very parties (respondent as a member of the
`Engle class) in the litigation of the same claims on
`which the judgment below is based.
`
`Philip Morris cites no case that would require a
`
`party be given the opportunity to relitigate these kinds
`of issues after the highest appellate court with juris-
`diction has made its final ruling. Instead, it should be
`clear that when a party had notice and opportunity to
`be heard, there is no due process violation no matter
`how forcefully a party contends the ruling was errone-
`ous. This is the reason that the Florida Supreme Court
`and the Eleventh Circuit Court (sitting en banc no
`less) rejected the due process challenge Philip Morris
`continues to bring to this Court again and again and
`again. Philip Morris USA Inc. v. Douglas, 110 So. 3d
`419, 430-36 (Fla.),2 cert. denied, 571 U.S. 889 (2013);
`Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169,
`1181-86 (11th Cir. 2017) (en banc), cert. denied, 138
`
`2 The court’s statement that the findings would be “useless”
`
`if the court had meant issue preclusion, id. at 433, does not mean,
`as Philip Morris suggests, that the court had been unable to de-
`termine from the record of the year-long Engle Phase I trial
`whether the findings applied to all cigarettes manufactured by
`the defendants. Rather, it clearly meant that they would be use-
`less in terms of saving any time and effort to avoid relitigation in
`the progeny actions because each class member would be “re-
`quired to ‘trot out the class action trial transcript to prove applica-
`bility of the phase I findings.’ ” Id. (quoting Martin, 53 So. 3d at
`1067).
`
`

`

`12
`
`S. Ct. 646 (2018); see also Burkhart v. R.J. Reynolds To-
`bacco Co., 884 F.3d 1068, 1090-93 (11th Cir. 2018)
`(Tjoflat, J.) (dissenter in Graham explaining why Gra-
`ham’s due process holding controls as to all findings
`the Florida Supreme Court determined in Engle satis-
`fied conduct elements of all class members’ claims).
`
` Whether the doctrine is labeled issue preclusion,
`claim preclusion, res judicata, law of the case, or any-
`thing else, the fact remains that this dispute was fully
`litigated by these parties and finally resolved against
`Philip Morris. See Walker v. R.J. Reynolds Tobacco Co.,
`734 F.3d 1278, 1289 (11th Cir. 2013) (“If due process
`requires a finding that an issue was actually decided,
`then the Supreme Court of Florida made the necessary
`finding. . . .”), cert. denied, 134 S. Ct. 2727 (2014).
`
`There is simply no good reason for this Court to
`
`use its resources to address this issue. There is no split
`of authority period, much less between federal courts
`of appeal and/or state courts of last resort. And the is-
`sue is limited to Engle-progeny litigation, in any event.
`This is a finite group of claims. All but a handful of fed-
`eral Engle-progeny cases have been fully resolved, by
`settlement or adjudication.
`
`Nor is there anything all that remarkable about
`
`the Engle court’s rationale once one understands that
`the class trial was not some separate prior proceeding,
`but merely the first phase of these proceedings be-
`tween Respondent and Philip Morris. Engle reviewed
`a final judgment; there is nothing unusual about ap-
`plying res judicata effect to the findings that were
`
`

`

`13
`
`affirmed in favor of the class. While the class was de-
`certified and class members were directed to file prog-
`eny actions to complete their individual claims, the fact
`remains that not only was Philip Morris a party to the
`Engle final judgment, but so, too, was each class mem-
`ber, including Respondent. See Soffer v. R.J. Reynolds
`Tobacco Co., 187 So. 3d 1219, 1224 (Fla. 2016) (approv-
`ing observation in lower court opinion (that was other-
`wise quashed) that “[p]rogeny plaintiffs wear the same
`shoes, so to speak, as the plaintiff in Engle because
`they are the plaintiffs from Engle”); Douglas, 110 So.
`3d at 432 (“[O]ur decision in Engle allowed members of
`the decertified class to pick up litigation of the ap-
`proved six causes of actions right where the class left
`off. . . .”).
`
`And while the class action and progeny actions
`
`were different proceedings in the sense that they have
`separate case numbers, each progeny action merely as-
`serts the same causes of action asserted and partially
`resolved by Engle. Thus, there is nothing unusual or
`inappropriate about affording the affirmed parts of the
`judgment with res judicata effect and precluding fur-
`ther litigation on these common issues between the
`same parties involving the same causes of action.
`
`This is no different than an individual case where
`
`the appellate court affirms part of the judgment but
`reverses another part for a new trial only on the re-
`maining issues while making clear that the affirmed
`issues may not be relitigated on remand. The court re-
`jected the dissent’s concern that this would involve
`subsequent juries re-examining findings made by the
`
`

`

`14
`
`original jury. Compare 945 So. 2d at 1270, with id. at
`1286-87 (Wells, J., dissenting in part). And it plainly
`resolved with finality the question of which Engle find-
`ings applied uniformly to all class members and which
`depended on the kind of cigarette each class member
`smoked or the statements each class member heard.
`Philip Morris and the other defendants challenged
`that determination in this Court raising the same due
`process question urged here, and the Court denied
`their petition and then denied rehearing. R.J. Reynolds
`Tobacco Co. v. Engle, 552 U.S. 941 (2007).
`
`Regardless of whether Philip Morris wanted to ac-
`
`cept those determinations, that should have been the
`end of the litigation on this issue because even the tra-
`ditional doctrine of claim preclusion applies to subse-
`quent litigation between the same parties on the same
`causes of action. Douglas, 110 So. 3d at 433. Issue pre-
`clusion, on the other hand, prevents the same parties
`from relitigating the same issues that were litigated
`and actually decided in a second suit involving a dif-
`ferent cause of action. Applying that doctrine here – to
`the same causes of action from the class action as op-
`posed to a different cause of action – would be im-
`proper, as the supreme court found. Id. (citation
`omitted).
`
`At bottom, Philip Morris claims a due process
`
`right to relitigate the meaning of a verdict finally ad-
`judicated in a prior appellate proceeding that resulted
`in a final judgment between the same parties involving
`the same claims. Philip Morris essentially asks this
`Court to review the more than 100,000-page record
`
`

`

`15
`
`from Engle, including the nearly 40,000-page tran-
`script from the Phase I trial, to reach a different fac-
`tual conclusion than the courts below, an endeavor this
`Court’s rules warn is rarely undertaken. See Rule 10
`(“A petition is rarely granted when the asserted error
`consists of erroneous factual findings or the misappli-
`cation of a properly stated rule of law.”); see also Her-
`nandez v. New York, 500 U.S. 253, 266 (1991) (“Our
`cases have indicated that, in the absence of exceptional
`circumstances, we would defer to the state-court fac-
`tual findings, even when those findings relate to a con-
`stitutional issue.”).
`
`
`III. The Court Should Not Hold and Should
`Promptly Deny the Petition.
`The Court should reject Philip Morris’s request to
`
`hold this petition pending some other petitions it plans
`to file next month. Not only does Philip Morris cite no
`precedent for this bizarre request,3 but it does not
`make logical sense and is prejudicial.
`
`It does not make sense because there is no reason
`
`Philip Morris could not have filed certiorari petitions
`in those cases along with this petition. Moreover, the
`decisions simply reject due process challenges based on
`prior precedents over which this Court has already de-
`nied certiorari. See Boatright v. Philip Morris USA
`Inc., 217 So. 3d 166, 173 (Fla. Dist. Ct. App. 2018)
`
`
`3 The cases it cites all involve instances where the Court held
`
`petitions pending disposition of lead petitions filed earlier than
`the “hold petitions.”
`
`

`

`16
`
`(summarily rejecting due process by simply citing
`Douglas); Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d
`1342, 1354 (11th Cir. 2018) (recognizing court is bound
`to reject due process argument in light of Graham).4
`
` Moreover, holding this petition unduly prejudices
`Respondent due to a unique Florida statute benefitting
`only these tobacco companies. Philip Morris does not
`have to pay the judgment against it until it has ex-
`hausted review in this Court. Fla. Stat. § 569.23
`(2017); R.J. Reynolds Tobacco Co. v. Sikes, 191 So. 3d
`491, 494-95 (Fla. Dist. Ct. App. 2016). Thus, these cases
`are not like most other cases where holding a petition
`does not preclude the respondent from enforcing the
`judgment absent petitioner showing specific reasons
`why a stay is justified, as required by this Court’s Rule
`23.3.
`
`There is simply no reason to delay ruling. The
`
`Court should promptly deny certiorari so Respondent
`
`4 That two members of the Searcy panel expressed confusion
`
`and “intrigue” over Graham’s application to the fraudulent con-
`cealment and conspiracy findings does not make that decision any
`more worthy of review. Searcy recognized that Burkhart is a bind-
`ing Eleventh Circuit panel opinion holding that Graham does so
`apply. Resolution of intellectual disagreements between judges of
`a court of appeals is a matter that might be suited to en banc re-
`view, but not review by this Court. And in any event, the Eleventh
`Circuit had already given the issue close en banc review in Gra-
`ham, a decision over which this Court denied certiorari.
`
`In any event, a review of the relevant history and case law
`related above, as well as Judge Martin’s concurring opinion, read-
`ily dispel the misapprehensions under which the Searcy majority
`was apparently laboring until it concluded that Burkhart con-
`trols.
`
`

`

`17
`
`can finally recover the remedy she is due on her claims
`that have taken over twenty years to litigate.
`
`---------------------------------  ---------------------------------
`
`CONCLUSION
`For the foregoing reasons, the petition for writ of
`
`certiorari should be promptly denied.
`
`Respectfully submitted,
`JOHN S. MILLS
` Counsel of Record
`COURTNEY BREWER
`THE MILLS FIRM, P.A.
`325 North Calhoun Street
`Tallahassee, Florida 32301
`(850) 765-0897
`jmills@mills-appeals.com
`Counsel for Respondent
`
`November 5, 2018
`
`
`

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