No.
`
`
`
`IN THE
`pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
`_______________
`
`PHILIP MORRIS USA INC.,
`
`
`
`
`
`v.
`
`Petitioner,
`
`MARY BROWN, AS PERSONAL REPRESENTATIVE OF THE
`ESTATE OF RAYFIELD BROWN,
`Respondent.
`
`_______________
`
`On Petition For A Writ Of Certiorari
`To The Florida First District Court Of Appeal
`_______________
`
`PETITION FOR A WRIT OF CERTIORARI
`_______________
`
`ANDREW L. FREY
`LAUREN R. GOLDMAN
`MAYER BROWN LLP
`1221 Avenue of the Americas
`New York, NY 10020
`(212) 506-2500
`
`
`
`MIGUEL A. ESTRADA
` Counsel of Record
`AMIR C. TAYRANI
`BRANDON L. BOXLER
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`mestrada@gibsondunn.com
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`IN THE
`pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
`_______________
`
`PHILIP MORRIS USA INC.,
`
`
`
`
`
`v.
`
`Petitioner,
`
`MARY BROWN, AS PERSONAL REPRESENTATIVE OF THE
`ESTATE OF RAYFIELD BROWN,
`Respondent.
`
`_______________
`
`On Petition For A Writ Of Certiorari
`To The Florida First District Court Of Appeal
`_______________
`
`PETITION FOR A WRIT OF CERTIORARI
`_______________
`
`ANDREW L. FREY
`LAUREN R. GOLDMAN
`MAYER BROWN LLP
`1221 Avenue of the Americas
`New York, NY 10020
`(212) 506-2500
`
`
`
`MIGUEL A. ESTRADA
` Counsel of Record
`AMIR C. TAYRANI
`BRANDON L. BOXLER
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`mestrada@gibsondunn.com
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`QUESTION PRESENTED
`This case presents the same question as the forth-
`coming petitions for writs of certiorari in Philip Mor-
`ris USA Inc. v. Boatright and R.J. Reynolds Tobacco
`Co. v. Searcy:
`Whether the Due Process Clause is violated by a
`rule of preclusion that permits plaintiffs to invoke the
`preclusive effect of a prior jury’s findings to establish
`elements of their claims without showing that those
`elements were actually decided in their favor in the
`prior proceeding.
`
`
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING AND
`RULE 29.6 STATEMENT
`The caption contains the names of all the parties
`to the proceeding below.
`Petitioner Philip Morris USA Inc. is a wholly
`owned subsidiary of Altria Group, Inc. No publicly
`held company owns 10% or more of Altria Group,
`Inc.’s stock.
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED .......................................... i
`PARTIES TO THE PROCEEDING AND
`RULE 29.6 STATEMENT .................................... ii
`TABLE OF APPENDICES ........................................ iv
`TABLE OF AUTHORITIES ........................................ v
`OPINIONS BELOW .................................................... 1
`JURISDICTION .......................................................... 1
`CONSTITUTIONAL PROVISION INVOLVED ........ 2
`STATEMENT .............................................................. 2
`REASONS FOR GRANTING THE PETITION ....... 11
`I. THE FLORIDA COURTS’ EXTREME
`DEPARTURE
`FROM
`TRADITIONAL
`PRECLUSION PRINCIPLES VIOLATES DUE
`PROCESS ........................................................ 12
`II. THE COURT SHOULD HOLD THIS
`PETITION PENDING RESOLUTION OF
`BOATRIGHT AND SEARCY ............................... 15
`CONCLUSION .......................................................... 16
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF APPENDICES
`
`Page
`
`APPENDIX A: Opinion of the Florida First
`District Court of Appeal (Apr. 18, 2018) ............. 1a
`APPENDIX B: Order of the Florida First
`District Court of Appeal Denying Rehearing
`(May 29, 2018) .................................................... 10a
`
`
`
`
`
`
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Boatright v. Philip Morris USA Inc.,
`217 So. 3d 166 (Fla. Dist. Ct. App. 2018) .............. 3
`Burkhart v. R.J. Reynolds Tobacco Co.,
`884 F.3d 1068 (11th Cir. 2018) ........................ 3, 10
`Engle v. Liggett Grp., Inc.,
`945 So. 2d 1246 (Fla. 2006) ....................... 2, 5, 6, 7
`Fayerweather v. Ritch,
`195 U.S. 276 (1904) ................................ 2, 8, 11, 14
`Fla. Star v. B.J.F.,
`530 So. 2d 286 (Fla. 1988) ............................... 1, 11
`Flores v. United States,
`137 S. Ct. 2211 (2017) .......................................... 16
`Graham v. R.J. Reynolds Tobacco Co.,
`857 F.3d 1169 (11th Cir. 2017) .......................... 3, 9
`Honda Motor Co. v. Oberg,
`512 U.S. 415 (1994) .............................................. 14
`Innovention Toys, LLC v. MGA Entm’t, Inc.,
`136 S. Ct. 2483 (2016) .......................................... 16
`KPMG LLP v. Cocchi,
`565 U.S. 18 (2011) .................................................. 1
`Lawrence v. Chater,
`516 U.S. 163 (1996) .............................................. 16
`Logan v. Zimmerman Brush Co.,
`455 U.S. 422 (1982) .............................................. 14
`Merrill v. Merrill,
`137 S. Ct. 2156 (2017) .......................................... 16
`
`
`
`
`
`vi
`
`Nevada v. United States,
`463 U.S. 110 (1983) .............................................. 15
`Philip Morris USA, Inc. v. Douglas,
`110 So. 3d 419 (Fla. 2013) ............... 2, 3, 7, 8, 9, 13
`Philip Morris USA Inc. v. Douglas,
`571 U.S. 889 (2013) ................................................ 4
`R.J. Reynolds Tobacco Co. v. Graham,
`138 S. Ct. 646 (2018) .............................................. 4
`Richards v. Jefferson Cty.,
`517 U.S. 793 (1996) .............................................. 14
`Saldana Castillo v. Sessions,
`138 S. Ct. 2709 (2018) .......................................... 16
`Searcy v. R.J. Reynolds Tobacco Co.,
`902 F.3d 1342 (11th Cir. 2018) .............................. 3
`Taylor v. Sturgell,
`553 U.S. 880 (2008) ................................................ 2
`Constitutional Provisions
`U.S. Const. amend. XIV, § 1, cl. 2 ............................... 2
`Statutes
`28 U.S.C. § 1257(a) ...................................................... 1
`Rules
`Fed. R. Civ. P. 23(c)(4) ................................................. 7
`Fla. R. Civ. P. 1.220(d)(4)(A) ....................................... 7
`
`
`
`
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Philip Morris USA Inc. (“PM USA”) respectfully
`submits this petition for a writ of certiorari to review
`the judgment of the Florida First District Court of Ap-
`peal.
`
`OPINIONS BELOW
`The opinion of the Florida First District Court of
`Appeal is reported at 243 So. 3d 521. See Pet. App. 1a.
`The order of the Florida First District Court of Appeal
`denying rehearing is unreported. See Pet. App. 10a.
`An additional opinion of the Florida First District
`Court of Appeal in this case is reported at 96 So. 3d
`468.
`
`JURISDICTION
`The Florida First District Court of Appeal issued
`its opinion on April 18, 2018, see Pet. App. 1a, and de-
`nied PM USA’s motion for rehearing on May 29, 2018,
`see id. at 10a. Under Florida law, PM USA cannot
`seek review in the Florida Supreme Court because the
`First District’s decision does not contain any analysis
`or citation. See Fla. Star v. B.J.F., 530 So. 2d 286, 288
`n.3 (Fla. 1988). This Court therefore has jurisdiction
`to review the First District’s decision under 28 U.S.C.
`§ 1257(a) because the First District is “the highest
`court of [the] State in which a decision could be had.”
`See, e.g., KPMG LLP v. Cocchi, 565 U.S. 18, 19 (2011)
`(per curiam).
`On September 12, 2018, Justice Thomas extended
`the deadline for PM USA to file a petition for a writ of
`certiorari to October 26, 2018. See No. 18A183.
`
`
`
`
`
`2
`
`CONSTITUTIONAL PROVISION INVOLVED
`The Fourteenth Amendment to the United States
`Constitution provides in pertinent part: “nor shall
`any State deprive any person of life, liberty, or prop-
`erty, without due process of law.” U.S. Const. amend.
`XIV, § 1, cl. 2.
`
`STATEMENT
`Under longstanding and heretofore universally
`accepted 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 proceeding. Taylor v. Sturgell,
`553 U.S. 880, 892 (2008) (emphasis added; internal
`quotation 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).
`The Florida Supreme Court has acknowledged
`that the “actually decided” requirement is part of Flor-
`ida’s law of issue preclusion. Philip Morris USA, Inc.
`v. Douglas, 110 So. 3d 419, 433 (Fla. 2013). In this
`case and thousands of similar suits, however, the Flor-
`ida courts have jettisoned that requirement by apply-
`ing a novel form of offensive claim preclusion previ-
`ously unknown to the law. According to the Florida
`Supreme Court, members of the issues class of Florida
`smokers prospectively decertified in Engle v. Liggett
`Group, Inc., 945 So. 2d 1246 (Fla. 2006) (per curiam),
`can use the generalized findings rendered by the
`class-action jury—for example, that each defendant
`placed unspecified “cigarettes on the market that
`
`
`
`
`
`
`
`
`3
`
`were defective”—to establish the tortious-conduct ele-
`ments of their individual claims without demonstrat-
`ing that the Engle jury actually decided that the de-
`fendants engaged in tortious conduct relevant to their
`individual smoking histories. Douglas, 110 So. 3d at
`424 (internal quotation marks omitted). In reality,
`the Florida courts’ application of offensive claim pre-
`clusion in these “Engle progeny” cases is nothing more
`than issue preclusion stripped of its essential “actu-
`ally decided” requirement.
`The sweeping preclusive effect of the Engle jury’s
`findings is not limited to state court. The Eleventh
`Circuit has held that full-faith-and-credit principles
`require affording equally broad effect to those findings
`in federal cases, see Graham v. R.J. Reynolds Tobacco
`Co., 857 F.3d 1169, 1185-86 (11th Cir. 2017) (en banc),
`cert. denied, 138 S. Ct. 646 (2018); see also Burkhart
`v. R.J. Reynolds Tobacco Co., 884 F.3d 1068 (11th Cir.
`2018), although a panel of the Eleventh Circuit re-
`cently expressed serious reservations about that out-
`come, see Searcy v. R.J. Reynolds Tobacco Co., 902
`F.3d 1342, 1353 (11th Cir. 2018) (noting that, in light
`of the “multiple acts of concealment . . . presented to
`the Engle jury” and the Engle jury’s “general find-
`ing[s],” it is “difficult to determine whether the Engle
`jury’s basis for its general finding of concealment was
`the particular concealments” alleged by the plaintiff).
`PM USA will be filing petitions for writs of certio-
`rari on or about November 19, 2018, in Boatright v.
`Philip Morris USA Inc., 217 So. 3d 166 (Fla. Dist. Ct.
`App. 2018), and Searcy presenting the same due-pro-
`cess question at issue in this case: whether it is con-
`sistent with due process to permit plaintiffs to invoke
`the preclusive effect of the generalized Engle jury
`findings to establish elements of their individual
`
`
`
`
`
`
`
`
`4
`
`claims without showing that those elements were ac-
`tually decided in their favor by the Engle jury. Boat-
`right and Searcy are better vehicles for plenary review
`of that question than this case because, unlike the per
`curiam affirmance issued by the Florida First District
`Court of Appeal here, the Florida Second District
`Court of Appeal and the Eleventh Circuit issued writ-
`ten opinions in those cases.
`To be sure, this Court has had several prior oppor-
`tunities to review the constitutionality of the preclu-
`sion standards applied in Engle progeny litigation.
`See, e.g., Philip Morris USA Inc. v. Douglas, 571 U.S.
`889 (2013) (denying certiorari); R.J. Reynolds Tobacco
`Co. v. Graham, 138 S. Ct. 646 (2018) (denying certio-
`rari). But Boatright and Searcy will represent the
`Court’s first opportunity to review an Engle progeny
`case after the Eleventh Circuit’s decision in Burkhart
`v. R.J. Reynolds Tobacco Co., which—together with
`the en banc decision in Graham v. R.J. Reynolds To-
`bacco Co.—conclusively rejects the Engle defendants’
`due-process argument. Now that both the state and
`federal courts in Florida have definitively rejected all
`facets of that argument, it is manifestly time for this
`Court to put an end to the unconstitutional Engle ex-
`periment, which has already produced judgments
`against the Engle defendants in excess of $800 mil-
`lion, with another 2,300 additional cases remaining to
`be tried.
`The Court should hold this petition pending the
`disposition of Boatright and Searcy, and then dispose
`of the petition in a manner consistent with its ruling
`in those cases.
`
`
`
`
`
`
`
`
`5
`
`A. The Engle Class Action
`The Engle litigation began in 1994 when six indi-
`viduals filed a putative nationwide class action in
`Florida state court seeking billions of dollars in dam-
`ages from PM USA and other tobacco companies. The
`Engle trial court ultimately certified a class of all Flor-
`ida “citizens and residents, and their survivors, who
`have suffered, presently suffer or have died from dis-
`eases and medical conditions caused by their addic-
`tion to cigarettes that contain nicotine.” 945 So. 2d at
`1256 (internal quotation marks omitted).
`The Engle trial court adopted a complex three-
`phase trial plan. During the year-long Phase I trial,
`the class advanced many different factual allegations
`regarding the defendants’ products and conduct over
`the course of a fifty-year period, including many alle-
`gations that pertained to only some cigarette designs,
`only some cigarette brands, or only some periods of
`time. For example, the class asserted in support of its
`strict-liability and negligence claims that the filters
`on some cigarettes contained harmful components;
`that the ventilation holes in “light” or “low tar” ciga-
`rettes were improperly placed; and that some ciga-
`rette brands used ammonia as a tobacco additive to
`enhance addictiveness. Engle Class Opp. to Mot. for
`Strict Liability Directed Verdict at 3; Engle Tr. 11966-
`71, 16315-18, 36729-32.1 Likewise, to support its
`fraudulent concealment and conspiracy to fraudu-
`lently conceal claims, the class identified numerous
`distinct categories of allegedly fraudulent statements
`by the defendants, including statements pertaining to
`the health risks of smoking, others pertaining to the
`
`
` 1 A CD containing the transcript and all other record materials
`from Engle cited herein is part of the record below.
`
`
`
`
`
`
`
`
`6
`
`addictiveness of smoking, and still others limited to
`certain designs and brands of cigarettes, such as “low
`tar” cigarettes. See, e.g., Engle Tr. 36349-52, 36483-
`85, 36720-24.
`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 exam-
`ple, 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 verdict form asked whether the defendants con-
`cealed information about the “health effects” or “ad-
`dictive 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 may have rejected,
`and which it may not even have reached.
`In Phase II, the Engle jury determined individu-
`alized issues of causation and damages as to three
`class representatives. 945 So. 2d at 1257. It then
`awarded $145 billion in punitive damages to the class
`as a whole. Id. The defendants appealed before
`Phase III, where new juries would have been tasked
`with applying the Phase I findings to the claims of the
`other individual class members.
`The Florida Supreme Court held that the punitive
`damages award could not stand because there had
`been no liability finding in favor of the class and that
`“continued class action treatment” was “not feasible
`because individualized issues . . . predominate[d].”
`Engle, 945 So. 2d at 1262-63, 1268. Based on “prag-
`matic” considerations, however, the court further
`
`
`
`
`
`
`
`
`7
`
`ruled, sua sponte, that some of the issues in Phase I of
`Engle were appropriate for class-wide adjudication
`under Florida’s counterpart to Fed. R. Civ. P. 23(c)(4),
`which permits class certification “‘concerning particu-
`lar issues.’” 945 So. 2d at 1268-69 (quoting Fla. R. Civ.
`P. 1.220(d)(4)(A)). The court retroactively certified an
`issues class action, and stated that class members
`could “initiate individual damages actions” within one
`year of its mandate and that the “Phase I common core
`findings . . . will have res judicata effect in those tri-
`als.” Id. at 1269.
`B. The Florida Supreme Court’s Deci-
`sion In Douglas
`After the Florida Supreme Court’s decision in
`Engle, thousands of plaintiffs alleging membership in
`the Engle class filed “Engle progeny” actions in Flor-
`ida state and federal courts. Approximately 2,300 of
`these Engle progeny cases remain pending in state
`courts across Florida. In each of these cases, the
`plaintiffs assert that the Engle findings relieve them
`of the burden of proving that the defendants engaged
`in tortious conduct with respect to themselves or their
`decedents and that they are entitled to this benefit
`without having to establish that the Engle jury actu-
`ally decided any of those issues in their favor.
`In Douglas, the Florida Supreme Court rejected
`the Engle defendants’ argument that federal due pro-
`cess prohibits giving such sweeping preclusive effect
`to the Engle findings. 110 So. 3d at 422. The Florida
`Supreme Court acknowledged that the Engle class’s
`multiple theories of liability “included brand-specific
`defects” that applied to only some cigarettes and that
`the Engle findings would therefore be “useless in indi-
`vidual actions” if the plaintiffs were required to show
`what the Engle jury had “actually decided,” as Florida
`
`
`
`
`
`
`
`
`8
`
`issue-preclusion law required. Id. at 423, 433. Recog-
`nizing that progeny plaintiffs thus could not invoke
`issue preclusion, but wishing to salvage the utility of
`those findings, the court held that the doctrine of
`“claim preclusion” (which it also referred to as “res ju-
`dicata”) applies when class members sue on the “same
`causes of action” that were the subject of an earlier
`issues class action. Id. at 432 (emphasis omitted).
`Under claim preclusion, the court stated, preclusion is
`applicable to any issue “which might . . . have been”
`decided in the class phase, regardless of whether the
`issue was actually decided. Id. (emphasis added; in-
`ternal quotation marks omitted). It was therefore
`“immaterial” that “the Engle jury did not make de-
`tailed findings” specifying the bases for its verdict. Id.
`at 433.
`The Florida Supreme Court further held that its
`novel claim-preclusion rule—which is simply issue
`preclusion shorn of the “actually decided” require-
`ment—comports with due process. The court rea-
`soned that the “actually decided” requirement man-
`dated by Fayerweather, 195 U.S. at 307, is irrelevant
`to the application of claim preclusion. Douglas, 110
`So. 3d at 435. It concluded that “the requirements of
`due process” in the claim-preclusion setting are only
`“notice and [an] opportunity to be heard,” and found
`that the Engle proceedings satisfied that truncated
`standard. Id. at 430-31, 436 (emphasis added).
`C. The Eleventh Circuit’s Decision In
`Graham
`Several thousand Engle progeny cases were filed
`in or removed to federal court. In Graham v. R.J.
`Reynolds Tobacco Co., the en banc Eleventh Circuit
`held in a divided opinion that giving full faith and
`
`
`
`
`
`
`
`
`9
`
`credit to the Engle jury’s defect and negligence find-
`ings is consistent with due process. 857 F.3d at 1185.
`Notwithstanding Douglas’s unambiguous holding
`that “claim preclusion” is the proper framework and
`that analyzing the Engle findings under “issue preclu-
`sion” would render them “useless,” 110 So. 3d at 433,
`the Eleventh Circuit majority insisted that the Flor-
`ida Supreme Court had applied issue-preclusion prin-
`ciples and had determined in Douglas that the Engle
`jury had actually decided “that all cigarettes the de-
`fendants placed on the market were defective and un-
`reasonably dangerous” when returning its strict-lia-
`bility and negligence verdicts. Graham, 857 F.3d at
`1182.
`Although the en banc majority recognized that the
`“Engle Court defined a novel notion of res judicata,” it
`held that there were no constitutional barriers to giv-
`ing full faith and credit to the “res judicata effect” of
`the defect and negligence findings because “[t]he Due
`Process Clause requires only that the application of
`principles of res judicata by a state affords the parties
`notice and an opportunity to be heard.” Graham, 857
`F.3d at 1184. That standard was met, the en banc
`court concluded, because the “tobacco companies were
`given an opportunity to be heard on the common the-
`ories in [the] year-long [Phase I] trial.” Id. at 1185.
`Three judges wrote dissents, including a 227-page
`dissent from Judge Tjoflat that “detail[ed] layer upon
`layer of judicial error committed by numerous state
`and federal courts, culminating finally with the Ma-
`jority’s errors today.” Graham, 857 F.3d at 1214.
`In a subsequent decision, the Eleventh Circuit re-
`lied on its “opportunity to be heard” reasoning in Gra-
`ham—which had involved only the Engle strict-liabil-
`
`
`
`
`
`
`
`
`10
`
`ity and negligence claims—to reject the Engle defend-
`ants’ due-process challenge to the preclusive effect of
`the concealment and conspiracy findings because the
`Engle defendants “had the opportunity to argue the
`conduct elements of the concealment and conspiracy
`claims brought against them” in Phase I of Engle.
`Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068,
`1093 (11th Cir. 2018).
`D. Proceedings In This Case
`Pursuant to the procedures established by the
`Florida Supreme Court in Engle, respondent brought
`this wrongful-death action against PM USA alleging
`that her husband, Rayfield Brown, died from lung
`cancer caused by smoking. Respondent alleged that
`she was a member of the Engle class and asserted
`claims for strict liability, negligence, fraudulent con-
`cealment, and conspiracy to fraudulently conceal.
`Over PM USA’s objection, the trial court ruled
`that, if respondent proved Engle class membership
`(i.e., that Mr. Brown was addicted to cigarettes con-
`taining nicotine and that his addiction was a legal
`cause of his death), she would be permitted to rely on
`the “res judicata effect” of the Engle jury findings to
`establish the conduct elements of her claims and
`would not be required to prove those elements with
`independent evidence at trial. See R. 34:6787-92.
`After multiple mistrials, a jury found that
`Mr. Brown was an Engle class member and found in
`respondent’s favor on the strict-liability, negligence,
`and conspiracy claims. R. 100:19585-88. The jury
`deadlocked on the other issues in the case, see id., and
`a subsequent jury awarded respondent $4.375 million
`in compensatory damages and awarded her daughter
`
`
`
`
`
`
`
`
`11
`
`$2 million in compensatory damages. R. 134:26302-
`03.
`
`PM USA appealed to the Florida First District
`Court of Appeal and argued, among other things, that
`the trial court “erred when it determined that [re-
`spondent] could rely on the Engle findings to establish
`the conduct elements of her claims.” Initial Br. of
`PM USA 44 (Nov. 13, 2015). “That decision,” PM USA
`explained, “violates PM USA’s federal due process
`rights because it . . . disregards the longstanding re-
`quirement that preclusion is limited to issues ‘actually
`decided’ in an earlier proceeding.” Id. (citing Fayer-
`weather, 195 U.S. at 307); see also id. at 17 (“[P]ermit-
`ting [respondent] to rely on the Engle findings to es-
`tablish the conduct elements of her claims violated
`PM USA’s federal due process rights.”). PM USA
`acknowledged that this federal due-process argument
`was foreclosed by the Florida Supreme Court’s deci-
`sion in Douglas, “but wishe[d] to preserve the issue for
`reconsideration by the Florida Supreme Court or re-
`view in the U.S. Supreme Court.” Id. at 45.
`The First District affirmed in a per curiam deci-
`sion that did not contain any analysis or citation, see
`Pet. App. 1a, and that therefore was not subject to re-
`view in the Florida Supreme Court, see Fla. Star v.
`B.J.F., 530 So. 2d 286, 288 n.3 (Fla. 1988).
`REASONS FOR GRANTING THE PETITION
`As will be explained in detail in the petitions for
`writs of certiorari that will be filed no later than No-
`vember 19, 2018, in Philip Morris USA Inc. v. Boat-
`right and R.J. Reynolds Tobacco Co. v. Searcy, the
`Florida courts are engaged in the serial deprivation of
`the Engle defendants’ due-process rights. Only 10%
`of the Engle progeny cases have been tried, but the
`
`
`
`
`
`
`
`
`12
`
`defendants have already paid judgments totaling
`more than $800 million, and there are approximately
`2,300 additional cases that remain to be tried. This
`Court is the only forum that can provide PM USA with
`relief from the unconstitutional procedures that have
`now been endorsed by both the Florida Supreme
`Court and the Eleventh Circuit.
`This petition raises the same due-process question
`as the forthcoming petitions in Boatright and Searcy:
`whether it is consistent with due process to permit
`plaintiffs to invoke the preclusive effect of the gener-
`alized Engle jury findings to establish elements of
`their individual claims without requiring them to
`show that those elements were actually decided in
`their favor by the Engle jury. Boatright and Searcy
`are ideal vehicles for plenary review of that question
`because, unlike this case, they culminated in written
`opinions. The Court should therefore hold this peti-
`tion pending the outcomes of Boatright and Searcy,
`and then dispose of the petition consistently with its
`rulings in those cases.
`I. THE FLORIDA COURTS’ EXTREME DEPARTURE
`FROM TRADITIONAL PRECLUSION PRINCIPLES
`VIOLATES DUE PROCESS.
`The Florida Supreme Court’s decision in Douglas
`relieves Engle progeny plaintiffs from proving the
`most basic elements of their claims—for example, that
`the cigarettes they or their decedents smoked con-
`tained a defect—without requiring the plaintiffs to es-
`tablish that those particular issues were actually de-
`cided in their favor in Phase I of Engle. In so doing,
`Douglas permits progeny plaintiffs to deprive
`PM USA and the other Engle defendants of their prop-
`erty despite the absence of any assurance that the
`plaintiffs have ever proved all the elements of their
`
`
`
`
`
`
`
`
`13
`
`claims—and despite the possibility that the Engle
`jury may have resolved at least some of those ele-
`ments in favor of the defendants.
`In this case, the trial court permitted respondent
`to rely on the Engle findings to establish that the
`PM USA cigarettes Mr. Brown smoked contained a
`defect without requiring her to establish that the
`Phase I jury had actually decided that issue in her fa-
`vor. Indeed, the Engle findings do not state whether
`the jury found a defect in PM USA’s filtered ciga-
`rettes, or its unfiltered cigarettes, or in only some of
`its brands but not in others. For all we know,
`Mr. Brown may have smoked a type of PM USA ciga-
`rette that the Engle jury found was not defective.
`The trial court likewise permitted respondent to
`rely on the Phase I findings to establish that the ad-
`vertisements and other statements by the tobacco in-
`dustry on which Mr. Brown 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 conspiracy to fraudulently conceal claim
`rested. Engle Tr. 35955. And because the Engle ver-
`dict form asked whether the defendants had conspired
`to conceal material information about the “health ef-
`fects” or “addictive nature” of smoking, Philip Morris
`USA, Inc. v. Douglas, 110 So. 3d 419, 424 (Fla. 2013),
`the Engle jury may have found that the defendants’
`only fraud pertained to certain advertisements that
`concealed the “health effects” of smoking, whereas the
`jury in this case may have premised its conspiracy
`verdict exclusively on Mr. Brown’s alleged reliance on
`tobacco-industry statements about addiction that the
`Engle jury did not find to be fraudulent.
`
`
`
`
`
`
`
`
`14
`
`Because it is impossible to determine whether the
`Engle jury actually decided the conduct elements of
`respondent’s claims in her favor, allowing her to in-
`voke the Engle findings to establish those elements—
`including that the particular cigarettes Mr. Brown
`smoked were defective and that the statements on
`which he allegedly relied were fraudulent—violates
`due process. See, e.g., Fayerweather v. Ritch, 195 U.S.
`276, 307 (1904) (holding, as a matter of federal due
`process, that where preclusion is sought based on find-
`ings that may rest on any of two or more alternative
`grounds, and it cannot be determined which alterna-
`tive was actually the basis for the finding, “the plea of
`res judicata must fail”).
`This Court has “long held . . . that extreme appli-
`cations of the doctrine of res judicata may be incon-
`sistent with a federal right that is fundamental in
`character.” Richards v. Jefferson Cty., 517 U.S. 793,
`797 (1996) (internal quotation marks omitted). Few
`propositions are more fundamental to due-process ju-
`risprudence than that a person may not be deprived
`of life, liberty, or property unless every element of the
`cause of action justifying the deprivation is duly es-
`tablished. See Logan v. Zimmerman Brush Co., 455
`U.S. 422, 433 (1982). This bedrock principle is clearly
`violated by a proceeding that allows a plaintiff to use
`preclusion to establish crucial elements of her
`claims—and to recover millions of dollars in dam-
`ages—without any assurance that those elements
`were actually decided in her favor in the prior pro-
`ceeding. Indeed, the “whole purpose” of the Due Pro-
`cess Clause is to protect citizens against this type of
`“arbitrary deprivation[ ] of
`liberty or property.”
`Honda Motor Co. v. Oberg, 512 U.S. 415, 434 (1994).
`
`
`
`
`
`
`
`
`15
`
`Nor can claim-preclusion principles be used to jus-
`tify such an outcome. It is true, of course, that where
`claim preclusion applies, there is no need to establish
`the issues that were actually decided in the proceed-
`ing giving rise to the preclusion. But that is because
`claim preclusion operates only where there has been
`a final judgment with respect to a claim, such that fur-
`ther litigation of the claim may properly be precluded.
`See Nevada v. United States, 463 U.S. 110, 129-30
`(1983). In such circumstances, the precise course of
`litigation that led to the final judgment is irrelevant;
`all that matters is that the proceeding met basic re-
`quirements of notice and opportunity to be heard, so
`that it was capable of producing a constitutionally
`valid judgment. But where, as here, preclusion is
`sought with respect to particular issues, the “actually
`decided” requirement plays an essential role in pro-
`tecting parties’ rights and cannot be jettisoned in the
`interests of judicial efficiency.
`Now that both the Florida Supreme Court and the
`Eleventh Circuit have upheld the constitutionality of
`these unprecedented and fundamentally unfair proce-
`dures, this Court’s review is urgently needed to pre-
`vent the replication of this constitutional violation in
`each of the thousands of pending Engle progeny cases.
`II. THE COURT SHOULD HOLD THIS PETITION PEND-
`ING RESOLUTION OF BOATRIGHT AND SEARCY.
`The Court should hold this petition pending the
`resolution of the forthcoming petitions for writs of cer-
`tiorari in Philip Morris USA Inc. v. Boatright and R.J.
`Reynolds Tobacco Co. v. Searcy, which will be filed no
`later than November 19, 2018.
`To ensure similar treatment of similar cases, this
`Court routinely holds petitions that implicate the
`
`
`
`
`
`
`
`
`16
`
`same issue as other pending cases, and, once the re-
`lated case is decided, resolves the held petitions in a
`consistent manner. See, e.g., Saldana Castillo v. Ses-
`sions, 138 S. Ct. 2709 (2018); 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
`the Court has “GVR’d in light of a wide range of devel-
`opments, 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 con-
`ducted in order that (if appropriate) they may be
`‘GVR’d’ when the case is decided.”) (emphasis omit-
`ted).
`Because this case raises the same due-process
`question that is directly at issue in Boatright and
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