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) ...... 35
United States v. Moser,
266 U.S. 236 (1942) ...... 26 STATUTES
28 U.S.C.
§ 1257 ...... passim
§ 1738 ...... passim
OTHER AUTHORITIES
Peto R, Lopez AD, Boreham J, Thun M, Heath C, MORTALITY FROM TOBACCO IN
DEVELOPED COUNTRIES: INDIRECT ESTIMATION FROM NATIONAL VITAL STATISTICS,
Lancet 1992: 339:1268-78...... 12
THE HEALTH CONSEQUENCES OF SMOKING: NICOTINE ADDICTION: A REPORT OF THE
SURGEON GENERAL. Washington D.C. Government Printing Office, 1988. (DHHS publication no. (CDC) 88-8406) ...... 12, 36 37
Cohen C, Pickworth WB, Henningfield JE, Cigarette smoking and addiction. Clin
Chest Med 1991 Dec;12(4):701-10 (1991) ...... 12
Benowitz NL, Henningfield JE, Establishing a nicotine threshold for addiction.
The implications for tobacco regulation. N Engl J Med 1994 Jul 14;331(2):123-5
(1994)...... 12, 13 ALAN BRANDT CIGARETTE CENTURY: THE RISE, FALL, AND DEADLY PERSISTENCE
OF THE PRODUCT THAT DEFINED AMERICA (2007) ...... 13
Smoking and Health, a Report of the Surgeon General, DHEW Pub. No. (PHS) 79-
50066 (1979) ...... 36
Reducing the Health Consequences of Smoking, 25 Years of Progress, a Report of the Surgeon General, DHHS Pub. No. (CDC) 89-8411 (1989) ...... 37 1 MIS C E LL AN E O U S N O T ATIO N The appellees, defendants below, will be referred to collectively as
“Tobacco” or “Tobacco defendants” or “defendants.” Exhibits are identified as
Ex. ___ at ___. All emphasis in quotations is supplied unless otherwise noted.
Internal ellipses and internal quotes are sometimes omitted from quotations for readability. The District Court’s Opinion is noted throughout as Brown v. R.J.
Reynolds Tobacco Co., 576 F. Supp. 2d 1328 (M.D. Fla. 2008).
2 JU RIS DIC TIO N AL S T AT E M E N T Pursuant to 28 U.S.C. §1292(b), this Court permitted an appeal to be taken from the interlocutory order filed by the District Court, Middle District of Florida
(Schelsinger, J.).
3 ST AT E M E N T R E G AR DIN G O R AL AR G UM E N T Appellants request oral argument on all points. 4 ST AT E M E N T O F IS S U E S P R E S E NT E D F O R R E VIE W 1. Consistent with 28 U.S.C. § 1257, may a district court, purporting to act pursuant to its case management authority, review and in effect reverse a final judgment of the Florida Supreme Court?
2. Consistent with 28 U.S.C. § 1738, may a district court hearing a state law claim under diversity jurisdiction, refuse to give the same full faith and credit to a final judgment of the Florida Supreme Court as would have been given by a state court hearing the same case?
3. May a federal district court in a diversity action, consistent with Semtek
Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), substitute its own preclusion standard for that of a State supreme court?
4. Given that individual causation remains to be adjudicated, did the District
Court act prematurely in condemning the Engle v. Ligget Group, Inc., 945 So. 2d
1246 (Fla. 2006) proceeding in toto, rather than attempting to apply the Engle findings in a constitutional manner to individual follow-on cases?
1 5 ST AT E M E N T O F TH E C AS E 5.1 Overview
This appeal arises from a collateral challenge to the final determination of the Florida Supreme Court in the tobacco litigation known as Engle. v. Liggett
Group, Inc. 945 So. 2d 1246 (Fl. 2006). The questions presented concern the finality that must be afforded state court judgments in subsequent state law cases brought into federal court under diversity jurisdiction.
In this case, a state court tried to judgment the claims of three individual smokers and a class of all smokers in the state of Florida. The jury found for all three individual plaintiffs and for the class as a whole. Subsequently, the Supreme
Court of Florida upheld the verdicts of two of the individual plaintiffs (the third was barred by the statute of limitations), mandated certain classwide findings should be given preclusive effect in subsequent individual trials of class members, and prospectively decertified the class on the grounds that individual determinations of specific causation and damages could not be established on a classwide basis.
The Florida Supreme Court directed that the remaining individual claims could be pursued in subsequent litigation. The Court further ruled that certain generalized findings of fact concerning the tobacco defendants would be deemed final in any subsequent claims brought by individual smokers. The defendants sought certiorari review in the U.S. Supreme Court, which was denied. R.J.
2 Reynolds Tobacco Co. v. Engle, 128 S. Ct. 96 (2007).
Undisputed is the fact that the claims of two plaintiffs were tried to judgment and affirmed all the way up the appellate ladder in the state court system. As part of that judgment, even apart from any classwide determination, the Florida Supreme Court upheld the trial court's determination that, inter alia, smoking cigarettes causes certain cancers, that nicotine is addictive, that the defendants were negligent in the manufacture and distribution of cigarettes, that cigarettes were a defective product, and that defendants obscured this information.
Under Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), this is entirely consistent with settled principles of issue preclusion.
Under Semtek, a federal court sitting in diversity must be governed by state law in determining the preclusive effect of prior judgments. But beyond the legal rules, the findings themselves are unexceptional. Indeed, many correspond to findings of other courts and even acknowledgments on the websites of tobacco companies today. The Florida state courts have understood the clear command of the Florida Supreme Court on the finality to be given these elements of general
(non-specific) causation and have scheduled trials on specific causation and damages in individual cases. In a group of cases removed to the Middle District of Florida, however, the district court, sitting in claimed diversity jurisdiction, not only refused to give full faith and credit to the holding of the state Supreme Court, it arrogated to itself the power effectively to reverse the Florida Supreme Court
3 and render its judgment a nullity. 5.2 The Engle proceedings
Filed in 1994, Engle was certified in Florida Circuit Court as a national class of plaintiffs injured by diseases and medical conditions caused by addiction to cigarettes. On interlocutory appeal, the Court of Appeal, Third District of
Florida, approved the certification (limited to Florida) and found “the basic issues of liability common to all members of the class will clearly predominate over the individual issues.” R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 41 (Fla. 3d
DCA 1996), rev. den’d, 682 So. 2d 1100 (Fla. 1996).
On remand, the trial court divided the case into three “phases” that would all be part of the same cause of action. In Phase I, the jury would decide “common issues” relating to Tobacco’s conduct and the general health effects of smoking.
If the jury found in favor of the class in Phase I (e.g., that cigarettes were defective), it would then proceed to Phase II, which had two components. In
Phase II-A, the jury would decide whether the conduct of Tobacco caused injury to three individual plaintiffs and, if so, what their damages were. A Phase II-B trial would then be held to determine the amount of punitive damages to be assessed against Tobacco. The third phase, Phase III, was to consist of a series of subsequent trials with new juries wherein specific causation and damages (actual and punitive) would be determined for the rest of the plaintiffs in the class.
Plaintiffs in Phase III would then be entitled to apply the Phase I findings as
4 established “facts” on the common questions that had been tried in Phase I. The three phase process, with res judicata application of findings to the third phase, was conceived and approved by Florida courts from the outset. With this plan in place, the class action proceeded to Phase I. 5.3 The Engle verdict
Trial on the factual issues common to the class (Phase I) began in July, 1998 and ended a full year later. In November, 1999, the Phase II-A trial for three individual plaintiffs began on issues of specific causation and damages, and it ended several months later with verdicts in favor of each of these plaintiffs. The punitive damages trial (Phase II-B) began in May, 2000 and ended in July, 2000, again with a verdict in favor of plaintiffs.
The Engle Phase I trial produced testimony from hundreds of witnesses on behalf of plaintiffs and of Tobacco, including former Surgeons General, tobacco company executives, worldwide experts on tobacco disease and addiction, tobacco company researchers, historians, consumer expectation experts, and many more; it generated a library full of once-secret tobacco industry documents showing the inside story of how the tobacco industry committed criminal negligence in the marketing and design of its product.
Phase I concluded with a jury verdict convicting the tobacco interests. The jury found, inter alia,
* (Finding 1) “smoking cigarettes cause[s]” a variety of enumerated diseases (general causation of disease);
5 * (Finding 2) “cigarettes that contain nicotine [are] addictive or dependence producing (addictive nature of nicotine)”;
* (Finding 3) Tobacco “place[d] cigarettes on the market that were defective and unreasonably dangerous” (liability for defect,);
* (Finding 4a) Tobacco “conceal[ed] or omit[ted] material information, not otherwise known or available, knowing the material was false or misleading, or failed to disclose a material fact concerning or proving the health effects and/or addictive nature of smoking cigarettes” (fraudulent concealment);
* (Finding 5a) Tobacco entered “into an agreement to conceal or omit information regarding the health effects of cigarette smoking, or the addictive nature of smoking cigarettes, with the intention that smokers and members of the public rely to their detriment” (conspiracy to conceal);
* (Finding 6) Tobacco sold or supplied “cigarettes that were defective in that they were not reasonably fit for the uses intended” (liability for defect);
* (Finding 7) Tobacco sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by defendants (express warranty); and
* (Finding 8) Tobacco “failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances” (negligence). 5.4 The Florida Supreme Court’s “pragmatic solution”
On final appeal to the Florida Supreme Court, the Court reversed a common punitive damage award, upheld the verdicts of two of the individual plaintiffs (the third was barred by the statute of limitations), but prospectively decertified the class on the grounds that individual determinations of specific causation and damages could not be established on a classwide basis. Engle, 945 So. 2d at 1269,
1277. The Court recognized that damages and causation would need to be
6 assessed in further proceedings by other juries. Recognizing the impossibility of re-trying thousands of liability cases, the Court announced its “pragmatic solution.” Florida law would permit the common findings to be “retained” in follow-on damage actions:
The pragmatic solution is to now decertify the class, retaining the jury’s Phase I findings . . .. Class members can choose to initiate individual damages actions and the Phase I common core findings we approved will have res judicata effect in those trials.
Engle, 945 So. 2d at 1269.
After losing the appeal in the Florida Supreme Court, Tobacco sought rehearing. Tobacco therein asserted the same arguments that it had raised earlier
(the same as it would later raise in the U.S. Supreme Court and in the District
Court below). The motion for rehearing was denied. 5.5 Petition for certiorari review
After the Florida Supreme Court decision and denial of rehearing, Tobacco sought certiorari to the Supreme Court of the United States, arguing, among other things, the same constitutional infirmities it argued before and later argued in the
District Court. In its petition Tobacco invoked jurisdiction under 28 U.S.C.
§1257(a) and stated that the Florida Supreme Court’s decision affirming the judgment on the Phase I findings was “final for purposes of section 1257.”
Tobacco defendants’ previously filed Petition for Certiorari in Engle, attached as
Exhibit A at 2. The principal point in Tobacco’s petition, which is virtually identical to the primary question raised in its Rule 16 motion, was as follows:
7 Whether the due process clause prohibits a state court from giving preclusive effect to a jury verdict when it is impossible to discern which of numerous alternative grounds formed the basis for the jury’s finding of wrongful conduct.
Exhibit A at i.
Tobacco went on in the petition to argue that there were “fundamental defects” in the Engle judgment that would “contaminate” all Phase III cases
(Exhibit A at 3); that “giving res judicata effect to [the Phase I] findings violates a basic due process rule” (Exhibit A at 3); that “due process prohibits giving preclusive effect to verdicts that are too general to reveal the actual facts that were decided” (Exhibit A at 12); and that immediate review was required (Exhibit A at
18). The Supreme Court denied certiorari on October 1, 2007. R.J. Reynolds
Tobacco Co. v. Engle, 128 S. Ct. 96 (2007).
The following table shows the identity between the claims raised by way of certiorari and the ruling of the court below:
Arguments Against Tobacco Cert. Pet. District Court Ruling Preclusion Arguments Basis for Preclusion. “The preclusion ruling “[I]t would be improper here . . . abandon(s) the to apply issue preclusion deeply rooted principle in cases where it is that a determination in an impossible to determine earlier proceeding cannot what issues were actually be given preclusive effect decided in prior in a later case unless ‘it is proceedings.” Brown v. certain that the precise R.J. Reynolds Tobacco fact was determined by Co., 576 F. Supp. 2d the former judgment.’” 1328, 1341 (M.D. Fla.
8 Exhibit A at 12. 2008). Insufficiency of Engle Highly generalized and “The apparent flaw with Phase findings. decidedly ambiguous the jury form, and any nature of the Phase I verdict delivered from the findings. Exhibit A at form, is its nonspecificity 16-17. with respect to what acts or omissions committed by what Defendant breached what duty to which Plaintiff causing what injury.” Brown, 576 F. Supp. 2d at 1342. Product defect findings “As to product defect, for “The jury verdict insufficient as a matter instance, the jury found indicates that each of law. simply that ‘all of the Defendant manufactured defendants sold or a defective product at supplied cigarettes that some point in time, yet it were defective,’ without fails to specify what revealing either the defect was supported by nature of the defect or the evidence.” Brown, which of the many 576 F. Supp. 2d at 1343. cigarette models sold at different times were defective.” Exhibit A at 16. Due Process limits on “[T]he ruling conflicts “’Extreme applications’ Preclusion. with long-standing and of preclusion law ‘may be universally accepted inconsistent with a limitations on the use of federal right that is issue fundamental in preclusion—limitations character.’” Brown, 576 that this Court has held to F. Supp. 2d at 1345. be required by due process.” Exhibit A at 3. 5.6 Follow-on cases and removal
The Florida Supreme Court extended the statute of limitations for follow-on actions until January 11, 2008. On or before that date approximately 8,000 cases
9 were filed statewide, and over 4,000 in Duval County Circuit Court. Over 4,000 cases were subsequently removed as “mass actions” to the District Court under the Class Action Fairness Act. 5.7 Rule 16(a) ruling and appeal
After removing the follow-on cases, Tobacco applied to the District Court below to in effect sit as a further appellate court. Tobacco’s “Rule 16” motion proffered identical arguments to those advanced and overruled in the state rulings and the denial of the certiori petition. As before, Tobacco argued that the Florida
Supreme Court’s preclusion rulings deprived them of due process because they lacked specific reference to individual acts or individual smokers. The District
Court agreed and held that the very findings the Florida Supreme Court required to be carried forward may not be given preclusive effect in any proceeding to establish any element of an Engle plaintiff’s claim.
Of significance the District Court appeared not to conduct any analysis of the feasibility of applying the Florida Supreme Court’s findings to individual follow-on cases. Rather the District Court simply negated the significance of the entire Engle opinion. This appeal followed.
6 F A C TS Plaintiffs are members of the Engle class, defined in general as Florida citizens suffering from one or more enumerated cancers and other diseases caused
10 by addiction to nicotine in cigarettes. They brought claims against various defendants who designed, manufactured, and marketed cigarettes, based on negligence, strict liability, and intentional torts.
The problem of nicotine addiction in causing disease has been well recognized. In industrialized countries tobacco-induced deaths make up at least
35% of all fatal conditions in males ages 35 to 69. Between 40% and 50% of regular cigarette smokers will eventually be killed by cigarette smoke. Tobacco smoke as an individual health problem is unparalleled, as over a quarter of a billion people will be killed by smoking, which is about one-fifth of all persons now alive in developed countries. Peto R, Lopez AD, Boreham J, Thun M, Heath
C, MORTALITY FROM TOBACCO IN DEVELOPED COUNTRIES: INDIRECT ESTIMATION
FROM NATIONAL VITAL STATISTICS, Lancet 1992: 339:1268-78. Nicotine addiction is a true drug addiction in the league of cocaine and heroin. In delivering nicotine addiction, numerous cancers, and cardiovascular diseases in one package, the modern cigarette is recognized universally as the largest preventable cause of disease in America. See generally Department of Health and Human Services,
Public Health Service. THE HEALTH CONSEQUENCES OF SMOKING: NICOTINE
ADDICTION: A REPORT OF THE SURGEON GENERAL. Washington D.C. Government
Printing Office, 1988. (DHHS publication no. (CDC) 88-8406). Cohen C,
Pickworth WB, Henningfield JE, Cigarette smoking and addiction. Clin Chest
Med 1991 Dec;12(4):701-10 (1991). Statement on Nicotine Containing Cigarettes
11 by David A. Kessler, M.D., Commissioner of Food and Drugs before the
Subcommittee on Health and the Environment, U.S. House of Representatives,
March 25, 1994. Benowitz NL, Henningfield JE, Establishing a nicotine threshold for addiction. The implications for tobacco regulation. N Engl J Med 1994 Jul
14;331(2):123-5 (1994).
The role of the cigarette industry in causing the epidemic of tobacco disease has been well documented. In the postwar period it conducted a campaign of scientific fraud, strongarm media influence, disingenuous lobbying, and misleading advertising, while perfecting its products’ delivery of nicotine to ensure repeat customers. See generally, ALAN BRANDT CIGARETTE CENTURY:
THE RISE, FALL, AND DEADLY PERSISTENCE OF THE PRODUCT THAT DEFINED
AMERICA (2007) (see also www.cigarettecentury.com).
7 ST AND ARD O F R E VIE W This Court reviews de novo a district court's decision regarding the applicability of preclusion. U.S. v. Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006).
12 AR G UM E N T
1 SUMM AR Y O F AR G UM E N T In rejecting wholesale the Florida Supreme Court's ruling on the preclusive effects of Engle, the District Court violated three separate commands, all of which are designed to preserve the uniformity of treatment of state court judgments in subsequent state and federal proceedings. First, under 28 U.S.C. § 1257, federal courts are not permitted to sit in appellate-style review of state court judgments except through certiorari review by the U.S. Supreme Court. Second, under 28
U.S.C. § 1738, federal courts are obligated to give state court judgments the same preclusive effect as would a state court hearing the same action. Finally, as set out in Semtek, federal common law also directs that federal courts apply the preclusion rules of the state in which they sit. Together the statutory and federal common law command that there be uniformity in the preclusive effect given to a state court judgment and that the standard of preclusion be set by state law. The ruling below violated each of these commands.
Next, the District Court’s ruling was premature and ignored that the constitutional challenges raised will evaporate when the findings are applied to individual cases. The general findings of misconduct or negligence can be constitutionally applied because the follow-on cases will of necessity inquire, under the requirement of causation, into the individual links between the
13 misconduct (towards the public in general) and the individual plaintiff’s knowledge and situation. The will also inquire into the links between the defects
(common to all cigarette products) and the individual’s smoking patterns, disease process and addiction.
In summary three doctrines rooted in the law of jurisdiction and judgments establish that the District Court misstepped in finding a constitutional violation here. First, because the Florida Supreme Court itself considered and rejected the constitutional argument embraced by the District Court, the District Court's revisitation of that argument was foreclosed by preclusion. Second, a constitutional challenge to the proper operation of the Florida Supreme Court's order – an order directed squarely at further proceedings involving these very parties – necessarily entails a collateral attack on that order. Such a collateral attack can succeed, however, only if the challenged order was issued in the absence of notice or subject-matter or personal jurisdiction. No one can argue or has argued that the "fundamental unfairness" rationale on which the District Court relied falls into any of these specific categories. Finally, the District Court's consideration of the defendants' Due Process claim violated the long-established
Rooker-Feldman doctrine. That doctrine teaches that, when a litigant claims a state Supreme Court ruling involves a misapplication of federal-law, the sole relief afforded by federal statute is an appeal to the United States Supreme Court. In fact, the defendants did seek certiorari from the Engle ruling in the Supreme
14 Court without success, and the District Court erred in giving them a second bite at federal court review of their due process argument via removal of this case to federal court.
2 IN TR O D U C TIO N The fundamental issue in this appeal is the limited role of the lower federal courts in applying state law. Procedurally, they are courts of original, not appellate jurisdiction, and cannot under 28 U.S.C. §1257 and the Rooker-Feldman doctrine entertain a review of matters decided, or those inextricably intertwined with matters decided, in prior state court proceedings. Substantively they are bound to follow the law of the jurisdiction in which they sit, as fully as are the lower state courts.
The Florida Supreme Court in Engle set out the law of Florida as it applies to phased class actions that are prospectively decertified for individual damage actions: in Florida individual follow-on cases may partake of factual findings made in the previous class litigation, even as these findings are necessarily general in nature. All Florida courts, and Erie-bound federal courts within Florida, are pledged to follow. Any federal constitutional challenge to this state law was limited by 28 U.S.C. §1257 to a petition to the Supreme Court of the United
States. As the petition was denied, so was further federal review of state substantive law, whether on due process or other grounds.
15 The District Court below undertook a de novo analysis of substantive due process as it applies to state law preclusion doctrines. The analysis sought out cases over a hundred years old, and as well cited overruled, pre-Engle state law.
With respect to the learned Court, such analysis was in error. First, the District
Court lacked jurisdiction under § 1257 to conduct substantive due process analysis because the preclusion doctrine was the heart and soul of, and thus inextricably intertwined with, the Florida Supreme Court’s Engle decision. Second, if the analysis could be conducted at all, the District Court was required to apply the governing law of the relevant jurisdiction, which was stated beyond question in the same Engle opinion. Finally, although not subject to review, the wisdom of the state law announced in Engle was undeniable, the findings were scientifically indisputable, application of the common findings to individual cases would be feasible, and the entire process envisioned by the Florida Supreme Court furthered the public policy of the state.
Appellants therefore submit that the ruling below violates two statutory restrictions on the power of a federal court. First, under 28 U.S.C. § 1257 any claimed federal constitutional challenge to the final ruling of the Florida Supreme
Court lies exclusively with the certiorari powers of the U.S. Supreme Court. The
District Court's willingness to entertain a challenge on exactly the same issues previously presented to (and rejected by) the U.S. Supreme Court is statutorily prohibited and must be reversed. Second, the District Court refused to give the
16 final decision of the Florida Supreme Court the same full faith and consideration as would a state court. This not only violates the principles of Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938), in inviting forum shopping of the sort seen here, but it runs afoul of the statutory obligations of the Full Faith and Credit Statute,
28 U.S.C. § 1738.
Each statutory violation requires reversal. Combined, the ruling below is a flagrant violation of core federalism values and statutorily-codified limitations on the powers of federal courts.
3 TH E DISTRIC T C O U RT C O MMITT E D L E G AL E R R O R B Y AS S UMIN G TH E AU TH O RITY T O R E V E RS E A FIN AL R U LIN G O F TH E F L O RID A S U P R E M E C O U R T
The fundamental error of the court below lies in its presumption that it had authority to review the ruling of the Florida Supreme Court for federal constitutional invalidity. Under 28 U.S.C. § 1257, that power is exclusively reserved to the U.S. Supreme Court: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the
Supreme Court by writ of certiorari . . ." As the U.S. Supreme Court emphasized only two Terms ago,
This Court is vested under 28 U.S.C. § 1257 with jurisdiction over appeals from final state-court judgments. We have held that this grant of jurisdiction is exclusive: "Review of such judgment may be had only in this Court." . . . Accordingly, under what has come to be known as Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state court judgments."
17 Lance v. Dennis, 546 U.S. 459, 463 (2006) (citations omitted) (emphasis in original). The purpose of the Rooker-Feldman doctrine is to preserve the integrity of state court judgments, absent federal review by the U.S. Supreme Court. As the
Court further stated in Exxon Mobil Corp. v. Saudi Basic Industries, 544 U.S. 280,
284 (2005), the aim is to bar federal district courts from entertaining cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.
Under this Court's well-established criteria, Rooker-Feldman is a bar to relitigation of state law rulings where: (1) the party in federal court is the same as the party in state court; (2) the prior state-court ruling was a final or conclusive judgment on the merits; (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state-court proceeding; and
(4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court's judgment. See e.g., Amos v.
Glynn County Bd. of Tax Assessors, 347 F.3d 1249, 1265 n.11 (11th Cir.2003).
There can be little dispute that the tobacco defendants meet all these criteria as the losing party in a conclusive state-court ruling in which the issues of their conduct were fully litigated.
The Tobacco defendants are affirmatively “seeking relief in federal court” because they took the steps necessary to remove the cases from state to federal
18 court. By removing, it is clearly “seeking relief in federal court.” Beeler
Properties, LLC v. Lowe Enters. Residential Investors, LLC, Case No. 07-00149,
2007 WL 1346591 (D. Colo. May 7, 2007) (“From a jurisprudential perspective, it makes no difference in application of the Rooker-Feldman doctrine whether jurisdiction is invoked by the filing of a complaint or a notice of removal.”). See also, Brown & Root, Inc. v. Breckenridge, 211 F.3d 194 (4th Cir. 2000) (Court held that Brown & Root’s federal arguments were “nothing more than an attempt to seek review of the state court’s decision by a lower federal court” and affirmed the dismissal under the Rooker-Feldman doctrine). This result is entirely consistent with the structure of § 1257, which makes no distinction between plaintiffs or defendants; it simply gives a state court loser the right under certain circumstances to have the judgment it lost reviewed by, and only by, the U.S.
Supreme Court. While the cases have mostly held that a "plaintiff" cannot refile a case in federal court that was previously lost in state court, that is simply the usual fact pattern. A defendant may be equally a loser in state court, who removes the state court case and “seeks relief” in federal court. Thus the Supreme Court in
Exxon Mobil defined Rooker-Feldman as applying to "state court losers" and the
"losing party in state court," thereby eschewing any reading that would limit the application to either "plaintiffs" or "defendants." Exxon Mobil, 544 U.S. at 284,
19 291.1
In the instant case the District Court arrogated to itself the power to review
de novo the exact federal constitutional issues previously presented for certiorari
review to the U.S. Supreme Court. As set out above in the comparative table,
even a cursory examination of the language of the defendants' petition for
certiorari and the district court's Rule 16 ruling reveals that there were two bites
at this federal apple.
For the district court, Rooker-Feldman could be sidestepped because the
losing defendant in the state court action was not the complaining plaintiff seeking
relief in federal court. Brown, 576 F. Supp. 2d at 1336 n.14. Insofar as this is an
observation about how cases are usually postured, it is true that the statutory
prohibitions of § 1257 are most clearly developed when a losing state court
litigant directly commences suit in federal court seeking to be released from a
binding state court judgment. Such a federal plaintiff runs into the specific
prohibition encompassed under the Rooker-Feldman doctrine preventing federal
review outside the Supreme Court’s certiorari jurisdiction. Nonetheless, nothing
in the statutory language of § 1257 or in any case law limits the statutory
prohibition to the particular procedural posture of who filed suit in federal court.
The great principle of Federalism is too important to be set aside depending on
1 See In Re Al-Sedah, 347 B.R. 901, 904 (N.D. Ala. 2005); In Re Candidus, 327 B.R. 112, 119-21 (E.D.N.Y. 2005); In Re May, 321 B.R. 462, 467 (N.D. Ohio 2004); In Re Flury, 310 B.R. 659, 661-62 (M.D. Fla. 2004).
20 which party is involved.
The District Court’s restricted reading of Rooker-Feldman misses the broader sweep of § 1257, which mandates that the only form of review available is by the U.S. Supreme Court. As the Court held in District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-83 (1983), the case that completed the jurisdictional doctrine, “A United States District Court has no authority to review final judgments of a state court in judicial proceedings. Review of such decisions may be had only in this Court. . . . Lower federal courts possess no power whatever to sit in . . . review of state court decisions.” As summarized in the
Court’s most recent examination of § 1257, the statutory prohibition turns not on the procedural posture of the case in federal court but applies categorically “where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court.” Lance, 546 U.S. at 466 (emphasis added).
The District Court erred by concluding that, since the Rule 16 motion by the tobacco defendants did not meet its crabbed definition of Rooker-Feldman, there was no statutory obstacle to its plenary review – and rejection – of the ruling of the Florida Supreme Court. In effect, § 1257 became only a procedural bar to the
District Court assuming subject matter jurisdiction if the tobacco defendants had affirmatively filed suit in federal court. In the context of removal to federal court by the tobacco defendants, the District Court effectively declared the statute as having no application.
21 This ruling is wrong and stands in marked contrast to the Court’s clear holding in Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923):
If the constitutional questions . . . actually arose in the (state case), it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. Under the legislation of Congress, no court of the United States other than this Court could entertain a proceeding to reverse or modify the judgment for errors of that character. To do so would be an exercise of appellate jurisdiction.
Once freed from the strictures of § 1257 and Rooker-Feldman, the District
Court proceeded to review the entirety of the Florida state record as if it were an appellate tribunal. Under the rubric of not according “preclusive effect to a constitutionally unsound judgment,” the district court found that Florida procedure violated due process, even down to reversing the Florida Supreme Court’s rulings on the effect of curative instructions for allegedly improper behavior by counsel.
Brown, 576 F. Supp. 2d at 1346-47. This is clear legal error.
4 TH E DISTRIC T C O U R T C O MMITT E D L E G AL E R R O R B Y F AILIN G T O GIV E TH E R U LIN G O F TH E F L O RID A SU P R E M E C O U R T TH E S AM E F ULL F AITH AN D C R E DIT AS IT W O ULD H A V E R E C EIV E D IN F L O RID A ST AT E C O UR TS 4.1 Full Faith and Credit requires a district court’s treatment of state law to be equivalent to a state court’s
Under the “Full Faith and Credit Act,” 28 U.S.C. § 1738, state court judgments "shall have the same full faith and credit in every court within the
22 United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." Allen v. McCurry, 449 U.S. 90, 96 (1980). Emphatically, the United States Supreme Court has held, “a federal court must give the judgment the same effect that it would have in the courts of the State in which it was rendered.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 369 (1996). The usual situation involves a “judgment” but the Act refers more broadly to “judicial proceedings.” As the Matsushita court further stated:
The Full Faith and Credit Act mandates that the judicial proceedings of any State shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of such State. ... Federal courts may not employ their own rules in determining the effect of state judgments, but must accept rules chosen by the State from which the judgment is taken.”
Matsushita Elec. Indus, 516 U.S. at 373.
The import is unmistakable: "Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the
State from which the judgments emerged would do so." In order to ensure the objective of uniform treatment of state judgments,
It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken.
Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-482 (1982).
As a result, "the [Full Faith and Credit] statute directs a federal court to refer to the preclusion law of the State in which judgment was rendered."
23 Marrese v. Am. Acad. Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). Under this principle the District Court was bound by the state law of Florida in its application of preclusion principles.
The most recent on-point appellate decision on Florida’s doctrine of res judicata is Engle making that decision not only the factual source of the res judicata findings, but also the source of the law this Court is Erie-bound to follow.
Thus when this Court follows the Engle court’s literal statements that the findings are to be given “res judicata effect,” this Court is not simply giving full faith and credit to the courts of Florida, it is also following the law of Florida as defined by the Florida Supreme Court. “[T]he Supreme Court of Florida is infallible-at least as to matters of Florida law.” Gonzalez v. State, 617 So. 2d 847, 849 (Fla. 4th
DCA 1993).
The District Court erred in refusing to apply now-settled Florida preclusion law on due process grounds. First, the Florida Supreme Court considered and rejected the same due process argument accepted by the District Court. In particular, contrary to the District Court's reasoning, it makes no difference that the previously adjudicated question involved an application of law or a federal constitutional matter. See, e.g., Remo Hotel, L.P. v. City and County of San
Francisco, 545 U.S. 323, 326 n.6 (1980) (reiterating rule that preclusion arises
"once a court has decided an issue of fact or law"); Montana v. United States, 440
U.S. 147, 157 (1978) (applying preclusion because "[n]o different constitutional
24 challenge is at issue in this litigation"). In short (and independently of the previously discussed Rooker-Feldman doctrine), the District Court's revisitation of the previously decided due process question was foreclosed because "the question expressly and definitively presented in this case is the same as that definitely and actually litigated and adjudged' . . . in state court." Montana, 440
U.S. at 157 (quoting United States v. Moser, 266 U.S. 236, 242 (1942)).
The Florida Supreme Court's opinion in Engle reveals on its face that that court envisioned that the findings it "approved" would have a significant and meaningful impact in follow-on actions, so as to facilitate a "pragmatic" resolution of remaining disputes. The District Court, however, denigrated the Florida
Supreme Court’s "pragmatic" approach, and denied the liability findings specifically approved by the Florida Supreme Court any practical effect whatsoever. In doing so, the District Court violated both its statutory duty to afford the juridical pronouncements of the Florida Supreme Court the same full faith and credit they would "have by law … in the Courts of such state from which they are taken," 28 U.S.C. § 1738, and overlooked the core commands of Erie.
Telling in this regard is the application of the Florida Supreme Court’s order that has occurred in the Florida state courts in the wake of Engle. Florida courts have concluded that the approved findings must and will play a significant role in follow-on actions, just as the Florida Supreme Court intended. These actual rulings by actual state courts powerfully illustrate the legal effect of the
25 Florida Supreme Court ruling "in the Courts of such state" for purposes of 28 USC
§ 1738. No less powerfully, these state court rulings – because they contrast so dramatically with the order under review here reveal why that Order offends the
"twin aims of Erie" – namely "discouragement of forum shopping and avoidance of inequitable administration of the laws" in the state and federal judicial systems.
In short, the District Court erred in its purported application of Florida law.
The District approached this question by a consulting very general principles of law developed in lower Florida court decisions and non-Florida authorities.
Working with these materials, the District Court wove together an analysis that, among other things, declared the Florida Supreme Court's ruling in Engle to be a
"judicial edict." An “edict” from the Florida Supreme Court is binding on Florida law.
The District Court ruled that according the jury's liability findings the significant and meaningful effect that the Florida Supreme Court in actuality meant for them to have would produce "arbitrariness" violative of the requirements constitutional due process. The Florida Supreme Court rightly concluded, however, that carrying forward the approved findings to the follow-on actions comported with "common sense and logic." Giving jury findings an effect consistent with "common sense and logic" does not entail arbitrariness or a violation of the Due Process Clause.
Judgments cannot in general be set aside unless they fail to comply with
26 minimal due process. “Minimal due process” requires (i) proper notice, (ii) service of process, and (iii) a court of competent jurisdiction. Curbelo v. Ullman, 571 So.
2d 443, 445 (Fla. 1990) (“where a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void”);
Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. Unit B 1982).
Furthermore even an “‘erroneous conclusion’ reached by the court in the first suit does not deprive the [party] in the second action ‘of their right to rely upon the plea of res judicata. . . . A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause.’”
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). This rule, which predates the Republic, “has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it, an end could never be put to litigation.” Hopkins v. Lee, 19 U.S. (6 Wheat.) 109 (1821).
Tobacco had all of the basic due process required by Kremer, Fehlhaber, and Curbelo throughout every part of the Phase I proceedings. Tobacco had the
“opportunity to be heard” and heard again.
Indeed, for two separate reasons, it would violate principles of due process to leave District Court's Order in place. First, such a result would strip the
27 plaintiffs of "vested rights" conclusively determined in a prior proceeding – indeed, a proceeding that lasted many years -- in which these very defendants could and did fully contest every claim and every victory of every plaintiff at every step of the way. Second, as shown above, upholding the District Court order would produce profoundly inequitable treatment for these plaintiffs vis a vis identically situated class members whose claims are now being adjudicated in
Florida state courts. Such far-reaching disparate treatment with respect to precious and hard-won state law rights would not only violate the Erie doctrine; it also would offend the principle of equal treatment made applicable to federal authorities by the Full Faith and Credit Act. 4.2 There is no ambiguity in the decision of the Florida Supreme Court, and Florida courts have uniformly applied it
There can be little dispute about what the controlling Florida law is on the preclusive effects of Engle. In its concluding paragraph, the Florida Supreme
Court directed that, "Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case." Engle,
945 So. 2d at 1277. Those findings were set forth in the jury’s answers to questions 1, 2, 3, 4a, 5a, 6, 7 and 8 and, said the Court, could “stand.” Engle, 945
So. 2d at 1255. Then, in discussing how the Phase I findings would be used, the court held:
28 The pragmatic solution is to now decertify the class, retaining the jury’s Phase I findings . . .. Class members can choose to initiate individual damages actions and the Phase I common core findings we approved will have res judicata effect in those trials.
Engle, 945 So. 2d at 1269. Then, for a third time, the Court used “res judicata” when it concluded that:
Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case.
Engle, 945 So. 2d at 1277. “Res judicata” under Florida law is then defined by the Florida Supreme Court as follows:
The doctrine of res judicata serves an important purpose in the judicial system of this state. The foundation of res judicata is that a final judgment in a court of competent jurisdiction is absolute and settles all issues actually litigated in a proceeding as well as those issues that could have been litigated.
Engle, 945 So. 2d at 1259.
Florida state courtshave not had difficulty applying what one court has termed the "unmistakable" holding of the Florida Supreme Court: "The Engle
Court's ruling that the Phase I findings were to have a ‘res judicata effect' in future trials is an undeniable precedent this Court must follow. As such, those common core findings in Engle are not to be re-litigated in this case or other cases pending in this Circuit." Gelep v. R.J. Reynolds, Tobacco Co., No. 98-006584CI (Fla. Cir.
Ct. Jan. 15, 2009), Order on Defendants’ Motion to Determine the Preclusive
Effect of the Engle Phase I Findings, attached as Exhibit B. See also In re Engle
29 Progeny Cases Tobacco Litig., Case No. 08-CA-80000 (Fla. Cir. Ct. May 8,
2008), Order Regarding the Effect of the Engle Phase I Findings on Pending
Cases, attached as Exhibit C ("all issues which were or which might have been litigated and determined in Engle are preclusively established in every Engle progeny case").
Because there must be an end as well as a beginning to litigation, res judicata is considered a “rule of fundamental and substantial justice, of public policy and private peace” which “should be cordially regarded and enforced by the courts.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981). “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” Baldwin v. Traveling Men’s
Ass’n, 283 U.S. 522, 525-26 (1931). It is the public policy of Florida, declared by the Florida Supreme Court, that Engle Phase I have preclusive effect, and that
Engle Phase III trials be on limited issues. 4.3 If Tobacco had prevailed in Phase I, there is little question class members would be unable to relitigate their causes of action
The failure of Tobacco’s argument is brought into focus by examination of the converse situation, i.e. what would have happened if Tobacco had won Phase
I. If Tobacco had prevailed in Phase I, it is undeniable that class members would be unable to bring individual suits, because their “cause of action” against
Tobacco was tried by representation in Phase I. Had the jury answered “no” on the
30 general verdict, individual class members would find their suits for defect, negligence, and fraudulent concealment barred. These suits would be barred regardless of what specific defects, acts of negligence, or concealed items an individual plaintiff could allege. Alleging specific defects would be meaningless, because the cause of action against Tobacco was tried on their behalf by class representatives. All matters that relate to that cause of action and that were actually tried, or could have been tried, would be determined by Phase I.
Indeed, Tobacco wanted to ensure this result, as it believed (or at least announced its belief) that it would win Phase I. In fact, Tobacco stated its wish to be bound:
We expect to win the case. When we win the case I want to be able to say, ‘You’re bound by it.’ . . . I want them bound.
Defendants have the legitimate and understandable desire to ensure that when defendants prevail in this case, the absent class members will be bound.
Engle Class Response Br. in Opposition to Petition for Cert., Case No. 06-1546,
2007 WL 2363238 *1, *17 n.22 (filed Aug. 15, 2007), attached as Exhibit D.
If the “absent class members” would be bound (and we agree they would), should not Tobacco be bound as well?
5 TH E DISTRIC T C O U R T E R R E D IN S U B S TITU TIN G ITS O WN P R E C LU SIO N S T AN D AR D F O R TH AT O F TH E ST AT E SU P R E M E C O U R T In essence the District Court decided that the Florida Supreme Court erred in its interpretation of Florida preclusion law, and that some transcendent legal
31 principles should apply instead: "the Engle . . . court's description of the Phase I findings as ‘res judicata' must be disregarded as imprecise phasing – a lapsus calami, as it were. Assuredly, the Florida Supreme Court meant to command that the findings be given collateral estoppel effect." Brown, 576 F. Supp. 2d at 1340 n.19. Drawing on a wide array of sources – ranging from the Restatement
(Second) of Judgments) to centuries-old cases to earlier Florida intermediate appellate court cases, including the very intermediate appellate court decision that was reversed in Engle itself – the District Court below decreed its power to set aside the ruling of the Florida Supreme Court in favor of a federal common law of its own creation: "this Court is constitutionally bound to strictly apply the doctrine of issue preclusion consistent with its common law origins." Brown, 576
F. Supp. 2d at 1344 n.24, 1346.
Such contemptuous disregard of the Florida Supreme Court on a matter of
Florida law, and the corresponding exaltation of abstract federal common law for diversity cases, is hard to fathom seventy years after Erie v. Tompkins. Quite simply, the Florida Supreme Court can define its preclusion doctrine such that
"common core findings . . . will have res judicata effect," or it can term it
"collateral estoppel" – or, for that matter, it can call it "blue turnips." This is a matter of state law and the Florida Supreme Court is the final arbiter of, and infallibly defines, Florida state law.
The District Court's ruling cannot withstand scrutiny under Semtek
32 International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). The question presented in Semtek was the claim preclusive effect of a federal court judgment in a diversity case. The Court held that, even for judgments issued by a federal court, the preclusion rule to apply would be determined by state and not federal law, lest the divergent standards be an invitation to the very forum shopping that Erie sought to avoid. Semtek, 531 U.S. at 504. In announcing the preclusive effects of federal court judgments, the Supreme Court held that preclusion rules presented
"a classic case for adopting, as the federally prescribed rule of decision, the law that would be applied by state courts in the State in which the federal diversity court sits." Semtek, 531 U.S. at 508. Accordingly, the District Court's reliance on federal common law to trump state preclusion law is not even a proper statement of what such federal common law would be. Under Semtek, the federal common law of preclusion is the law that would control in the state courts, absent some independent federal interest. As this Court has interpreted Semtek:
Under federal common law, an enforcing court should apply the law of the state courts in the state where the rendering federal court sits, unless the state's law conflicts with federal interests. This rule, according to the Supreme Court in Semtek International Inc., achieves the aims of Erie by discouraging forum shopping and encouraging a uniform administration of law."
Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297, 1310
(11th Cir. 2005).
The District Court embarked on an extended disquisition on the “real” meaning of “res judicata” and “collateral estoppel,” drawing on cases from many
33 jurisdictions as well as on Florida intermediate appellate court cases that preceded
Engle, including the very intermediate appellate court decision that was reversed in Engle itself. Brown, 576 F. Supp. 2d at 1338-44 n. 24. In the same antiquarian spirit, the lower court cited nineteenth and early twentieth century cases for the proposition that “this Court is constitutionally bound to strictly apply the doctrine of issue preclusion consistent with its common law origins.” Brown, 576 F. Supp.
2d at 1346.
The U.S. Supreme Court holds a different view. In Semtek the Court noted that the term “judgment on the merits,” a key concept in the law of issue preclusion, “has gradually undergone change.” Semtek, 531 U.S. at 502. Rather than stoutly resisting that change, it ruled that, even in a case where the first decision was reached by a federal diversity court, the applicable preclusion rule is “the law that would be applied by state courts in the State in which the federal diversity court sits.” Semtek, 531 U.S. at 508. Indeed, the lower court’s attempt here to constitutionalize the common law origins of the law of judgments would have invalidated the Supreme Court’s own policy-based discarding of the classic mutuality requirement for the use of collateral estoppel in federal court, first in the context of defensive collateral estoppel, Blonder-Tongue Laboratories,
Inc. v. Univ. of Illinois Foundation, 402 U.S. 313 (1971), and then in that of offensive collateral estoppel, Parklane Hosiery Inc. v. Shore, 439 U.S. 322 (1979).
Furthermore, an examination of contemporary federal preclusion law would
34 find nothing extraordinary in the ruling of the Florida Supreme Court and no conceivable federal interest running contrary to the uniform administration of the law. The tobacco defendants were the losing party in a case tried to judgment before a jury. Even apart from the class claims, the defendants lost conclusively to two of the plaintiffs on the merits of just what is at issue here: the causal role of tobacco in cancer; the pattern of behavior of the tobacco defendants; the defective nature of cigarettes, etc. What possible interest – federal or state – could possibly be advanced by having to relitigate in each individual case whether or not cigarettes cause cancer?
Having lost on the merits on these points, the tobacco defendants are in a posture no different from the losing party in Parklane. There the Court found no constitutional obstacle to having losing parties "be precluded from relitigating facts resolved adversely to them in a prior . . . proceeding with another party . . ."
Parklane, 439 U.S. at 326. See also United States v. Mendoza, 464 U.S. 154
(1984) ("[O]nce a court has decided an issue of fact of law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation"). In Parklane, the defendants lost a prior case to the SEC and a subsequent jury was to be instructed that, as the prior court had found, their proxy statement was false and misleading.
That presented no constitutional problem in its application. Florida juries can equally be instructed that the public statements of the tobacco defendants were
35 false and misleading. Indeed, that is what Semtek requires.
6 TH E C O MM O N F A C TS F O U N D B Y TH E F L O RID A SU P R E M E C O U R T AR E U N E X C E P TIO N AL, A C C UR AT E , AN D S CIE N TIFIC ALLY V ALID Far from being exceptional, the Engle findings themselves are quite unremarkable. Tobacco defendants have themselves admitted many of them. For example, Philip Morris now admits on its website that all cigarettes cause cancer and other diseases, that cigarette smoke from any cigarette is addictive:
PM USA agrees with the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious diseases in smokers. Smokers are far more likely to develop serious diseases, like lung cancer, than non-smokers.
There is no safe cigarette.
PM USA agrees with the overwhelming medical and scientific consensus that cigarette smoking is addictive. It can be very difficult to quit smoking, but this should not deter smokers who want to quit from trying to do so. http://philipmorrisusa.com/en/cms/Products/Cigarettes/Health_Issues/default.aspx (accessed 1/28/2009).
The scientific basis for the findings of addictiveness and of disease causation is not subject to doubt. See generally Smoking and Health, a Report of the Surgeon General, DHEW Pub. No. (PHS) 79-50066 (1979); The Health
Consequences of Smoking, Nicotine Addiction, a Report of the Surgeon General,
36 DHHS Pub. No. (CDC) 88-8406 (1988); Reducing the Health Consequences of
Smoking, 25 Years of Progress, a Report of the Surgeon General, DHHS Pub. No.
(CDC) 89-8411 (1989).
7 TH R O U G H TH E R E Q UIR E M E N T S O F IN DIVID U AL C AU S ATIO N, AN D TH R O U G H P E R E MP T O R Y IN S TR U C TIO N S, TH E E N G L E FIN DIN G S C AN B E C O N S TITU TIO N ALLY AP P LIE D T O IN DIVID U AL C AS E S 7.1 The District Court acted prematurely in condemning all the findings for all follow-on cases
The court below condemned the Engle proceedings prematurely and categorically. In so doing it accepted Tobacco’s arguments that the general nature of the findings could not be constitutionally applied. However, the District Court jumped the gun. There was no attempt to apply the findings to any individual.
Because causation will involve the interaction of the general findings with the individual facts, such inquiry will not run afoul of any constitutional due process concerns.
Time and again, the Supreme Court has held that, absent extraordinary circumstances, courts should assess the constitutionality of challenged rules on "as applied," rather than "facial," grounds. The District Court violated this principle because it wielded a meat-axe in attacking whatever constitutional problems the
Florida Supreme Court's ruling might in the future present. Proper constitutional methodology requires a case-specific inquiry as to whether following the res judicata rule declared by the Florida Supreme Court would offend due process "as
37 applied" to the particular issues, the particular facts, and the particular jury instructions presented by a particular class member's case.
7.2 Common findings are expected in common issue trials, and Engle approved this practice for Florida law
Before addressing the specifics, we note that it can be no surprise that the common factual findings approved by the Florida Supreme court were general.
There could be no other result of a common issues trial, and Florida law, as expressed in Engle, approves such trials. 7.3 The District Court erred in accepting Tobacco’s arguments that general findings could never be applied under any circumstances
The District Court accepted the idea in effect that all common issues trials are constitutionally infirm, especially in the case of tobacco, going so far as to disagree with the certification of the class. Brown, 576 F. Supp. 2d at 1344, n.24.
The District Court found:
Indeed, as the Engle II court [which is the intermediate appellate court the Florida supreme Court overruled in Engle] stated: "[i]n the years since initial affirmance of certification [of the Engle class] in 1996, virtually all courts that have addressed the issue have concluded that certification of smokers' cases is unworkable and improper." 853 So. 2d at 443-44 (collecting cases). A primary reason for denying certification in such cases is because such claims fail to meet the commonality, typicality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2), (3), or its various state analogues, making them unmanageable, inefficient and fundamentally unfair. The same principles of fundamental fairness militating against certifying such a class equally support this Court's
38 finding that the Phase I verdict may not be used to establish any element of Plaintiffs' claims.
However class certification is a state court matter finally and was conclusively resolved in favor of certification. The District Court took no evidence on whether tobacco cases lend themselves to class treatment, accepting Tobacco’s arguments that, in effect, circumstances of disease and smoking vary so tremendously among potential plaintiffs that common issues are essentially nonexistent. In fact, the important, operative facts and legal theories are entirely common, as the Florida courts have found, after taking extensive evidence on the issue of commonality and typicality. 7.3.1 It is a permissible factual finding that cigarette brands do not materially differ in their ability to cause disease
There are two areas of generality involving the contested findings. (Tobacco does not contest the findings that cigarettes cause the enumerated diseases, and that cigarette smoke is addictive.) The first area of concern is that the findings appear to apply to all cigarette brands. This seemed to be a concern of the Court, but it should not have been. The Florida Supreme Court, having reviewed the voluminous trial record, accepted that the Engle jury found that the defect proved by the plaintiffs, rooted as it was in the addictive liability of nicotine, extended to all brands. The defendant Tobacco companies were certainly able to mount a defense of a certain brand or type of cigarette. (In fact, in the Engle proceedings, the Tobacco defendants did successfully mount a causation challenge for a type
39 of lung cancer, known as bronchioloaviolar cancer, and jury accepted this.) If such defense had succeeded, the jury could have exempted the defect finding for that brand.
That no brand was found nondefective reflects the reality that neither the cigarette companies nor any legitimate scientific authority even suggests that there are brands of cigarettes that are materially different in their impact on human health. All cigarettes, i.e. tobacco rods wrapped in paper, share exactly the hazards that caused the diseases complained of: addictiveness of nicotine, the characteristic plant alkaloid synthesized by the tobacco plant and carcinogens and pathogens that are produced by the burning of the tobacco leaf. Even the website of Philip Morris explicitly admits that no type of cigarettes is safer than any other type, nor is any type less addictive than any other:
The terms "Light," "Ultra Light," "Medium" and "Mild" do NOT mean that the product is safer. These terms, or descriptors, are used to describe strength of taste and flavor.
Smoking brands using descriptors such as "Light," "Ultra Light," "Medium" and "Mild" will NOT help a smoker quit smoking. If a smoker is concerned about the health effects of smoking, the best thing to do is quit.
Brand descriptors such as "Light," "Ultra Light," "Medium" or "Mild" do NOT communicate the amount of tar, nicotine or other constituents in smoke a smoker may inhale when smoking.
As of today, there is no cigarette on the market which public health organizations endorse as offering "reduced risk." If smokers are concerned about the risks of cigarette smoking, the best thing to do is quit. There is no safe cigarette.
40 See Philip Morris website, cited supra.
The “brand variety” issue, therefore is a parade of horribles argument that the cigarette company defendants well know, and even admit, is fallacious. Their brands may differ in “taste” or the in the marketing images they use, but they all cause the same cancers and they all are addictive. (However, regardless of the general findings of defect, individual plaintiffs must still prove that the defect caused their injuries, as we discuss below.) 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
The second concern of lack of specificity is related to the conduct of the defendant tobacco companies. The Court below accepted the argument that the findings of negligence and misconduct without further definition could not withstand constitutional scrutiny. This as well was an incorrect response to a parade of horribles argument accepted without factual support.
In fact, although the full story of the misconduct of the cigarette industry would of course fill an enormous volume of information (the Engle trial was reportedly the longest in history in making the effort to actually write this volume), there are parts of the story that can apply to everyone. For example, when confronted with scientific evidence of the hazards of cigarettes in the 1950's, the companies suppressed and distorted the scientific research. These clandestine activities were of course not directed against any individual smokers, but they had a general effect on the public. All of this and more was evaluated by the Engle
41 jury, who concluded that the cigarette companies had acted improperly in the marketing of their products to the public in general. 7.3.3 Application of general findings to specific circumstances is anticipated when causation is considered in the follow-on cases
Given that the defendants’ conduct was judged to be negligent in toto, that finding is easily applied to individual cases. The Florida Supreme Court decertified the class to permit follow-on cases where the matters of individual causation and damages would be considered. Causation is where the “big story”
of the cigarette industry’s conduct meets the individual plaintiff’s story. The plaintiff’s burden is to show that the defect or the misconduct caused the injuries complained of. The jury is to be instructed that cigarettes were found to be defective, and that the conduct of the defendants was found to be negligent.
Whether such defect or negligence was in fact the cause of any damages is for the individual juries to consider. Far from not getting their day in court, the cigarette defendants can and will argue that their negligent conduct did not cause any harm to the plaintiff, because the plaintiff was fully apprised in the hazards of their product. They can also argue that the plaintiff was not addicted, and/or did not suffer from any disease related to cigarettes. None of these arguments are in any way contradictory to the Florida Supreme Court findings, which should be read to the jury and considered established.
When the role of causation in evaluating individual issues is understood, the parade of horribles over the generality of the findings (a necessary consequence
42 of any classwide trial) evaporates. The Engle findings can be, consistent with
Florida law, preserved and enforced in the follow-on cases. The defendants were negligent and cigarettes were defective. Whether that misconduct or defect affected the individual, remains to be tried. Of course some specifics may be required to establish this. Yet the District Court’s opinion does not grapple with the nuts-and-bolts problem of applying the findings to individuals, or even conclude, after that attempt, that such a process is impossible. 7.4 Appropriate peremptory instructions will permit the District Court to apply the Engle findings to individual cases
Having made the decision on its own or as a result of an appellate court mandate – the District Court may fashion peremptory instructions for the second jury that explain the application of the findings. See e.g., Santiesteban v.
McGrath, 320 So. 2d 476 (Fla. 3d DCA 1975) (containing peremptory instruction finding liability but instructing jury to decide comparative negligence); Trejo v.
Denver & Rio Grande Western R.R. Co., 568 F.2d 181, 184-85 (10th Cir. 1977);
Cromling v. Pittsburgh L.E.R. Co., 327 F.2d 142, 152-53 (3rd Cir. 1963); Thatch v. Missouri Pacific R.R. Co., 362 N.E.2d 1064, 1068-70 (Ill. App. 1977)
(providing suggestion on how the trial court should draft an appropriate jury instruction when only comparative fault and damages are at issue).
Lower state courts have fashioned appropriate peremptory instructions for
Engle Phase III cases. Judge Levens found “Phase I finding #1 will conclusively establish . . . that smoking cigarettes causes a variety of diseases and medical
43 conditions” and proposed this jury instruction:
The court has determined and now instructs you, as a matter of law, that smoking the Defendant(s)’ cigarettes causes [one or more of the enumerated medical conditions suffered by the Plaintiff].
For causation, Judge Levens proposed this jury instruction:
The court has determined and now instructs you, as a matter of law, that the Defendant(s) was (were) negligent in the manufacture and sale of the cigarettes smoked by the Plaintiff, and that those cigarettes were defective and in an unreasonably dangerous condition to the Plaintiff.
The first issue for your determination on the Plaintiff’s negligence claim is whether smoking cigarettes manufactured and sold by the Defendant(s) was a legal cause of injury or damage to the Plaintiff.
Exhibit C at 2-3.
Whether a federal court sitting in diversity ultimately follows Judge Levens’ proposed instructions or drafts its own, a federal court faithfully applying the preclusion law of the State can surely craft instructions that will adequately inform the jury of the Engle Phase I findings and of what additional facts they will have to decide.
8 C O N C LU SIO N The District Court's ruling on the merits of the due process argument offend the law of judgments and jurisdiction because:
(1) the District Court proceeding involved a de facto appeal of the Florida
Supreme Court's due-process ruling, notwithstanding the Rooker-Feldman
and §1257 requirement that such claims of state Supreme Court error be
44 brought, and be brought only, to the Supreme Court of the United States;
(2) governing principles of issue preclusion foreclosed the District Court from
again deciding the due process argument light of the Florida courts' earlier
consideration and rejection of the same argument in a proceeding that
involved exactly these same parties;
(3) the District Court's ruling wrongly vindicated a collateral attack on a now
final Florida Supreme Court judgment even though that judgment was
entered by that Court in an action unmarred by any flaw in either in
personam jurisdiction or notice or opportunity to be heard; and
(4) the District Court purported to read Florida law to strip a Florida jury's
"common liability findings" of all later effect, even in the face an express
declaration, by the Florida Supreme Court in applying Florida law, that
those findings should have "res judicata effect."
The District Court erred in declaring that the Florida Supreme. Court.'s res judicata ruling was so fundamentally flawed that it violated federal due process principles when the District Court's supporting analysis:
(1) entirely ignored the "common sense" basis on which the Florida Supreme
Court's ruling rightly rested; and
(2) equated supposed common-law preclusion rules with fundamental
constitutional requirements in the teeth of contrary United States Supreme
Court precedent.
45 The District Court erred when it evaluated the effect of the Florida Supreme
Court's res judicata ruling prematurely and on a woodenly "facial," rather than properly case-specific "as applied" basis because:
(1) the Court did not attempt to apply the general classwide facts found by the
Florida Supreme Court to individual cases in the exercise of its case
management authority, but instead attacked and rejected the classwide
findings in toto;
(2) the requirements of individual causation imply that general facts found by
the first jury will of necessity be applied in a specific and individual basis,
so that challenges to the application of a given general fact can be made at
that time;
(3) if the defendants have, as they will in individual trials involving causation,
ample opportunity to litigate the effect of any general fact on the particular
individual involved there can be no due process violation; and
(4) adequate peremptory instructions can assist follow-on juries in applying
general facts found by the Florida Supreme Court to individual causation
determinations.
For the foregoing reasons, the order of the District Court should be vacated and the cause remanded to the Court for further proceedings, including case management of individual or groups of cases in an effort to determine procedures wherein the Florida Supreme Court's intent to permit certain generalized facts to
46 apply, may be realized, and the litigation may proceed and conclude within a reasonable timescale considering the age and infirmity of the class members.
47 Date: February 2, 2009 Respectfully Submitted,
/s/ Norwood S. Wilner Samuel Issacharoff Norwood S. Wilner 40 Washington Square South FL. Bar No. 0222194 New York, NY 10012 Stephanie J. Hartley FL. Bar No. 0997846 Frank Fratello, Jr. FL Bar. No. 046100 Wilner Block, P.A. 444 E. Duval Street, 3rd Floor Jacksonville, FL 32202 Case No. 08-16158-CC
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Dana G. Bradford, II, Esquire Smith, Gambrell & Russell, LLP 50 N Laura Street, Suite 2600 Jacksonville, FL 32202 Attorneys for defendant R.J. Reynolds Tobacco Company individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company and Philip Morris USA, Inc.
James B. Murphy, Jr., Esquire Joshua R. Brown, Esquire Shook, Hardy & Bacon, LLP 100 N Tampa St, Suite 2900 Tampa, FL 33602 Attorneys for defendant R.J. Reynolds Tobacco Company individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Philip Morris USA, Inc. and Lorillard Tobacco Company
Stephanie E. Parker, Esquire John F. Yarber, Esquire Jones Day 1420 Peachtree St NE, Suite 800 Atlanta, GA 30309-3053 Attorneys for defendant R.J. Reynolds Tobacco Company individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company Kenneth J. Reilly, Esquire Shook, Hardy & Bacon, LLP 201 S Biscayne Blvd, Suite 2400 Miami, FL 33131-4332 Attorneys for defendant Philip Morris USA, Inc.
Kelly Anne Luther, Esquire Clarke, Silvergate & Campbell, PA 799 Brickell Plaza, Suite 900 Miami, FL 33131 Attorneys for defendant Liggett Group, LLC formerly known as Liggett Group, Inc. and Vector Group, Ltd., LLC.
Franklin J. Burr P O Box 789 Dunedin, FL 34697-0789 Pro Se Appellant on this 2nd day of February, 2009.
/s/ Norwood S. Wilner Norwood S. Wilner One of the Attorneys for Plaintiffs/Appellants