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Case No. 08-16158-CC UNITED STATES COURT of APPEALS Case No. 08-16158-CC UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT APPEAL FROM INTERLOCUTORY ORDER PURSUANT TO 28 U.S.C. §1292 Appeal from the United States District Court for the Middle District of Florida Case No. 3:07-cv-00761-J-25HTS BERNICE BROWN, et al. Plaintiffs/Appellants v. R.J. Reynolds Tobacco Co., et al. Defendant/Appellee INITIAL BRIEF OF APPELLANTS Norwood S. Wilner Samuel Issacharoff Stephanie J. Hartley 40 Washington Square South Frank Fratello, Jr. New York, NY 10012 Wilner Block, P.A. (212) 998-6580 444 East Duval Street, 3rd Floor Jacksonville, FL 32202 (904) 446-9817 Attorneys for Plaintiffs/Appellants (other counsel listed on inside cover) Other Counsel for Plaintiffs/Appellants Richard A. Daynard 90 Commonwealth Avenue Boston, MA 02116 (617) 373-2026 Henry Garrard Blasingame, Burch, Garrard & Ashley Post Office Box 832 Athens, Georgia 30603 (706) 354-4000 Tim Howard, J.D., Ph.D. FL Bar No. 0655325 Howard & Associates 8511 Bull Headley Road, Suite 400 Tallahassee, FL 32312 (850) 298-4455 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Trial Judges: Henry L. Adams, Jr., Timothy J. Corrigan and Harvey E. Schlesinger Plaintiffs/Appellants: Bernice Brown, et al. Attorneys for Plaintiffs/Appellants: Norwood S. Wilner Stephanie J. Hartley Frank Fratello, Jr. Wilner Block, P.A. 444 East Duval Street, 3rd Floor Jacksonville, FL 32202 Samuel Issacharoff 40 Washington Square South New York, NY 10012 Richard A. Daynard 90 Commonwealth Avenue Boston, MA 02116 Henry Garrard Blasingame, Burch, Garrard & Ashley Post Office Box 832 Athens, Georgia 30603 Tim Howard, J.D., Ph.D. Howard & Associates 8511 Bull Headley Road, Suite 400 Tallahassee, FL 32312 Franklin J. Burr P O Box 789 Dunedin, FL 34697-0789 Pro Se Appellant Defendant/Appellee: R.J. Reynolds Tobacco Co., et al. Defendants whom Appellants believe are an interested person under the local rules of this Court. Attorneys for Defendants/Appellee: Dana G. Bradford, II, Esquire Smith, Gambrell & Russell, LLP 50 N Laura Street, Suite 2600 Jacksonville, FL 32202 James B. Murphy, Jr., Esquire Joshua R. Brown, Esquire Shook, Hardy & Bacon, LLP 100 N Tampa St, Suite 2900 Tampa, FL 33602 Stephanie E. Parker, Esquire John F. Yarber, Esquire Jones Day 1420 Peachtree St NE, Suite 800 Atlanta, GA 30309-3053 Kenneth J. Reilly, Esquire Shook, Hardy & Bacon, LLP 201 S Biscayne Blvd, Suite 2400 Miami, FL 33131-4332 Kelly Anne Luther, Esquire Clarke, Silvergate & Campbell, PA 799 Brickell Plaza, Suite 900 Miami, FL 33131 1 Miscellaneous notation . ii 2 Jurisdictional statement . ii 3 Statement regarding oral argument . ii 4 Statement of issues presented for review . 1 5 Statement of the case . 3 5.1 Overview . 3 5.2 The Engle proceedings . 5 5.3 The Engle verdict . 6 5.4 The Florida Supreme Court’s “pragmatic solution” . 7 5.5 Petition for certiorari review . 8 5.6 Follow-on cases and removal . 10 5.7 Rule 16(a) ruling and appeal . 11 6 Facts . 11 7 Standard of Review . 13 1 Summary of argument . 14 2 Introduction . 16 3 The district court Committed legal error by assuming the authority to reverse a final ruling of the florida supreme court . 18 4 The District Court committed legal error by failing to give the ruling of the Florida supreme court the same full faith and credit as it would have received in florida state courts . 23 4.1 Full Faith and Credit requires a district court’s treatment of state law to be equivalent to a state court’s . 23 4.2 There is no ambiguity in the decision of the Florida Supreme Court, and Florida courts have uniformly applied it . 29 4.3 If Tobacco had prevailed in Phase I, there is little question class members would be unable to relitigate their causes of action . 31 5 The District Court erred in substituting its own preclusion standard for that of the State Supreme Court . 32 6 The common facts found by the Florida Supreme Court are unexceptional, accurate, and scientifically valid . 37 7 Through the requirements of individual causation, and through peremptory instructions, The Engle findings can be constitutionally applied to individual cases . 38 7.1 The District Court acted prematurely in condemning all the findings for all follow-on cases . 38 7.2 Common findings are expected in common issue trials, and Engle approved this practice for Florida law . 39 7.3 The District Court erred in accepting Tobacco’s arguments that general findings could never be applied under any circumstances . 39 7.3.1 It is a permissible factual finding that cigarette brands do not materially differ in their ability to cause disease . 40 7.3.2 It is a permissible factual finding that the cigarette companies acted negligently in the marketing of their product to the general public . 42 7.3.3 Application of general findings to specific circumstances is anticipated when causation is considered in the follow-on cases . 42 7.4 Appropriate peremptory instructions will permit the District Court to apply the Engle findings to individual cases . 44 8 Conclusion . 45 TABLE OF CITATIONS CASES Allen v. McCurry, 449 U.S. 90 (1980) . 23 Amos v. Glynn County Bd. of Tax Assessors, 347 F.3d 1249 (11th Cir.2003) . 19 Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522 (1931) . 30, 31 Beeler Properties, LLC v. Lowe Enterprises, 2007 WL 1346591 (D. Colo.) . 19, 20 Blonder-Tongue Laboratories, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313 (1971) . 35 Brown & Root, Inc. v. Breckenridge, 211 F.3d 194 (4th Cir. 2000) . 20 Cromling v. Pittsburgh L.E.R. Co., 327 F.2d 142 (3rd Cir. 1963) . 42 Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990) . 27, 28 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) . 22 Engle. v. Liggett Group, Inc., 945 So. 2d 1246 (Fl. 2006) . passim Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) . 18, 33 Exxon Mobil Corp. v. Saudi Basic Industries, 544 U.S. 280 (2005) . 19, 20 Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394 (1981) . 28, 30 Fehlhaber v. Fehlhaber, 681 F.2d 1015 . 27, 28 Gonzalez v. State, 617 So. 2d 847 (Fla. 4th DCA 1993) . 25 Hopkins v. Lee, 19 U.S. (6 Wheat.) 109 (1821) . 28 In Re Al-Sedah, 347 B.R. 901 (N.D. Ala. 2005) . 20 In Re Candidus, 327 B.R. 112 (E.D.N.Y. 2005) . 20 In Re Flury, 310 B.R. 659 (M.D. Fla. 2004) . 20 In Re May, 321 B.R. 462 (N.D. Ohio 2004) . 20 Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982) . 24, 28 Lance v. Dennis, 546 U.S. 459 (2006) . 18, 22 Marrese v. Am. Acad. Orthopaedic Surgeons, 470 U.S. 373 (1985) . 24 Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996) . 24 Montana v. United States, 440 U.S. 147 (1978) . 25 Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297 (11th Cir. 2005) . 34 Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) . 4, 35 Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (1980) . 25 R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39 (Fla. 3d DCA 1996) . 5 R.J. Reynolds Tobacco Co. v. Engle, 128 S. Ct. 96 (2007) . 3, 4, 9 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) . 22 Santiesteban v. McGrath, 320 So. 2d 476 (Fla. 3d DCA 1975) . 42 Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) . passim Thatch v. Missouri Pacific R.R. Co., 362 N.E.2d 1064 (Ill. App. 1977) . 42 Trejo v. Denver & Rio Grande Western R.R. Co., 568 F.2d 181 (10th Cir. 1977) . 42 United States v. Weiss, 467 F.3d 1300 (11th Cir. 2006) . 13 United States v. Mendoza, 464 U.S. 154 (1984) . ..
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