611 F.3d 1324 (11th Cir. 2010), 08-16158, Brown v. R.J. Reynolds Tobacco Co.

Docket Nº:08-16158.
Citation:611 F.3d 1324
Opinion Judge:CARNES, Circuit Judge:
Party Name:Bernice BROWN, Paul Christie, Dorothy Copeland, Juanita Coston, Alice Cothern, Robert Denton, Catherine Dillingham, Sharon Fernandez, Tony Harris, Nadine Head, Joanne Heflin-Gillis, Peggy Hickox, Alonzo Johnson, Mary Jane Moschini, Holly Murray, Lorraine Olson, Minnie Register, James L. Smith, Sr., Fonatine Wallace, Esther Werth, as Personal Repres
Attorney:Samuel Issacharoff, New York University Sch. of Law, New York City, Norwood S. Wilner, Frank Fratello, Jr., Wilner, Hartley & Metcalf, P.A., Jacksonville, FL, for Plaintiffs. Stephanie Ethel Parker, Jones Day, Atlanta, GA, Andrew L. Frey, Mayer, Brown, Rowe & Maw, New York City, Elliot H. Scherke...
Judge Panel:Before CARNES, HULL and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge, concurring specially:
Case Date:July 22, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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611 F.3d 1324 (11th Cir. 2010)

Bernice BROWN, Paul Christie, Dorothy Copeland, Juanita Coston, Alice Cothern, Robert Denton, Catherine Dillingham, Sharon Fernandez, Tony Harris, Nadine Head, Joanne Heflin-Gillis, Peggy Hickox, Alonzo Johnson, Mary Jane Moschini, Holly Murray, Lorraine Olson, Minnie Register, James L. Smith, Sr., Fonatine Wallace, Esther Werth, as Personal Representatives of the estates of Levi Brown, Sharon Christie, Robert Copeland, Troy R. Coston, James A. Cothern, Linda L. Denton, Catherine Dillingham, Sharon Fernandez, Linda Harris, Carson W. Head, Milton Heflin, Benjamin F. Hickox, Willie P. Johnson, Giuliano P. Moschini, Perry Murray, Floyd G. Olson, Jimmy C. Register, Wanette Smith, Robert E. Wallace and Howard Werth, respectively. Plaintiffs-Appellants-Cross-Appellees,

v.

R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown & Williamson Tobacco Corporation and the American Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., foreign corporations, Defendants-Appellees-Cross-Appellants.

No. 08-16158.

United States Court of Appeals, Eleventh Circuit.

July 22, 2010

Page 1325

[Copyrighted Material Omitted]

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Samuel Issacharoff, New York University Sch. of Law, New York City, Norwood S. Wilner, Frank Fratello, Jr., Wilner, Hartley & Metcalf, P.A., Jacksonville, FL, for Plaintiffs.

Stephanie Ethel Parker, Jones Day, Atlanta, GA, Andrew L. Frey, Mayer, Brown, Rowe & Maw, New York City, Elliot H. Scherker, Brigid F. Cech Samole, David L. Ross, Greenberg Traurig, P.A., Miami, FL, for Defendants.

John H. Beisner, Matthew Shoes, Scott M. Edson, O'Melveny & Myers, LLP, Washington, DC, for Amicus Curiae.

Appeals from the United States District Court for the Middle District of Florida.

Before CARNES, HULL and ANDERSON, Circuit Judges.

CARNES, Circuit Judge:

I.

Almost two decades ago, six individuals filed a lawsuit in Florida state court against the major domestic makers of cigarettes and two industry organizations seeking over $100 billion in both compensatory and punitive damages for injuries allegedly caused by smoking. Liggett Grp. Inc. v. Engle, 853 So.2d 434, 440-41 (Fla. 3d DCA 2003) ( Engle II ). The plaintiffs asserted claims of " strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress." Id. at 441. After some wrangling between the parties and an interlocutory appeal to the Third District Court of Appeal, a class was certified composed of " [a]ll Florida citizens and residents," R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 42 (Fla. 3d DCA 1996) ( Engle I ), " and their survivors who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." Engle v. Liggett Grp. Inc., 945 So.2d 1246, 1256 (Fla.2006) ( Engle III ). There were estimated to be at least 700,000 class members. Id. at 1258; Engle II, 853 So.2d at 442.

To manage the class action, the trial court developed a trial plan that had three phases. See Engle III, 945 So.2d at 1256. Phase I was a year-long trial that involved only " common issues relating ... to the defendants' conduct and the general health

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effects of smoking." Id. The jury was given a verdict form at the end of Phase I containing a series of questions. The verdict form asked the jury to answer " yes" or " no" to each question for specific time periods for each of the defendants.

The Engle class came close to running the table-the jury answered " yes" to almost every question put to them. The jury found: (1) that smoking cigarettes causes 20 of 23 listed diseases or medical conditions; (2) that cigarettes containing nicotine are addictive or dependence producing; (3) that the defendants placed cigarettes on the market that were defective and unreasonably dangerous; (4) that the defendants made a false statement of a material fact, either knowing the statement was false or misleading, or being without knowledge as to its truth or falsity, with the intention of misleading smokers; (4a) that the defendants concealed or omitted material information, not otherwise known or available, knowing the material was false and misleading, or failed to disclose a material fact concerning or proving the health effects and/or addictive nature of smoking cigarettes; (5) that the defendants entered into an agreement to misrepresent information relating to 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; (5a) that the defendants 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; (6) that the defendants sold or supplied cigarettes that were defective in that they were not reasonably fit for the uses intended; (7) that the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by the defendants either orally or in writing; (8) that the defendants failed to exercise the degree of care that a reasonable cigarette manufacturer would exercise under like circumstances; (9) that the defendants engaged in extreme and outrageous conduct or with reckless disregard relating to cigarettes sold to Florida smokers with the intent to inflict severe emotional distress; and (10) that the defendants' conduct rose to a level that would permit a potential award or entitlement to punitive damages. See id. at 1257 n. 4.1

In Phase I, however, the jury was not asked whether the class had proven any of its claims; it did not decide if the defendants were liable to anyone on any cause of action. See Engle III, 945 So.2d at 1246 (" In Phase I, the jury decided issues related to Tobacco's conduct but did not consider whether any class members relied on Tobacco's misrepresentations or were injured by Tobacco's conduct." ); Engle II, 853 So.2d at 450 (" In Phase [I], the jury answered certain general questions about the defendants' products and conduct. The questions related to some, but not all of the elements of each legal theory alleged .... The jury did not determine whether defendants were liable to anyone. Essential elements of liability, such as reliance

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and proximate cause, were [not] tried in Phase I." ).

Later, in Phase II, the same jury did determine that the defendants' conduct was the legal cause of three individual class representatives' injuries. The three were awarded a total of $12.7 million in compensatory damages after their comparative fault was taken into account. Engle III, 945 So.2d at 1257. The jury also awarded a lump sum of $145 billion in punitive damages to the entire Engle class. Id.

Before Phase III could be conducted, the defendants appealed the verdicts the jury had returned in Phases I and II. Engle II, 853 So.2d at 441-42; see also Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328, 1332 (M.D.Fla.2008). The appeal resulted in a Third District Court of Appeal decision that the Engle class should be decertified. The court concluded that class action treatment was inappropriate because " the plaintiffs smokers' claims [we]re uniquely individualized and [could not] satisfy the ‘ predominance’ and ‘ superiority’ requirements imposed by Florida's class action rules." Engle II, 853 So.2d at 444. The court also reversed the compensatory damages award in favor of the three individual class representatives, finding that none of them had valid claims against any of the defendants.2 As for the punitive damages award, the court reversed it on a variety of grounds that are not relevant to the present case. See id. at 470.

The class appealed the Third District Court of Appeal's decision to the Florida Supreme Court. That court agreed that the punitive damages award to the class should be reversed, Engle III, 945 So.2d at 1254, and agreed with the reversal of the compensatory damages award to one of the three individual class representatives, id. at 1276. However, the court reinstated the compensatory damages award to the other two class representatives.3 Id. For our purposes though, the most important parts of the Engle III decision are those involving certification of the Engle class and the jury's findings in Phase I.

The Florida Supreme Court decided that the trial court had not abused its discretion in certifying the Engle class for Phases I and II but also decided that " continued class action treatment for Phase III of the trial plan [was] not feasible because individualized issues such as legal causation, comparative fault, and damages [would] predominate." Id. at 1267-68. As for the jury's findings in Phase I, the court threw out four of them but determined that the remainder could stand.4 See Engle III, 945 So.2d at 1255. (We will refer to the findings that were not

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thrown out by the Florida Supreme Court as the Phase I " approved" findings.) The court then set out where the case should go from there:

The pragmatic solution is to now decertify the class, retaining the jury's Phase I findings other than those on the fraud and intentional infliction of emotion distress claims, which involved highly individualized determinations, and the findings on the entitlement to punitive damages questions, which was premature. Class members can choose to initiate individual damages actions and the Phase I common core findings we approved above will have res judicata effect in those...

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