R.J. Reynolds Tobacco Co. v. Marotta, 4D13–1703.

Decision Date06 January 2016
Docket NumberNo. 4D13–1703.,4D13–1703.
Citation182 So.3d 829
Parties R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Phil J. MAROTTA, as Personal Representative of the Estate of Phil Felice Marotta, deceased, Appellee.
CourtFlorida District Court of Appeals

Gordon James III, Eric L. Lundt and Robert Weill of Sedgwick LLP, Fort Lauderdale; and Gregory G. Katsas of Jones Day, Washington, D.C., for appellant.

Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A., Miami; Philip Freidin and Randy Rosenblum of Freidin, Dobrinsky, Brown & Rosenblum, P.A., Delray Beach; and Alex Alvarez of The Alvarez Law Firm, Miami, for appellee.

CIKLIN, C.J.

In this Engle progeny case,1 R.J. Reynolds Tobacco Company ("the defendant") appeals a final judgment entered in favor of Phil J. Marotta, as Personal Representative of the Estate of Phil Felice Marotta ("the plaintiff"), arguing that federal law implicitly preempts state law tort claims of strict liability and negligence based on the sale of cigarettes and that the use of the Engle defect finding resulted in a violation of due process. The plaintiff cross-appeals, contending that the trial court erred in precluding the jury from considering punitive damages on the products liability claim. We affirm on all issues pursuant to Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 424 (Fla.2013), Engle v. Liggett Group, Inc.,

945 So.2d 1246 (Fla.2006), and R.J. Reynolds Tobacco Co. v. Ciccone, 123 So.3d 604 (Fla. 4th DCA 2013), review granted, 147 So.3d 526 (Fla.2014). However, we write to address the defendant's federal preemption argument, and to certify a question thereon to the Florida Supreme Court as one of great public importance.

The defendant very broadly argues that, because Congress has expressly sanctioned the sale of cigarettes, and because the practical effect of the Engle progeny litigation is to establish that all cigarettes are inherently dangerous and defective, strict liability and negligence claims are implicitly preempted by federal law allowing the sale of cigarettes.

This court explained federal preemption in Liggett Group, Inc. v. Davis, 973 So.2d 467 (Fla. 4th DCA 2007), as follows:

The doctrine of conflict preemption prevents state laws which conflict with federal statutes from being applied. Conflict preemption occurs where a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively or when state law is in actual conflict with federal law. Conflict preemption turns on the identification of actual conflict and not an express statement of preemptive intent. If Congress gives express sanction to an activity, the states cannot declare that activity tortious.

Id. at 471 (internal citations and quotation marks omitted).

"[W]hether a state law claim is preempted is dependent on the exact nature of that particular claim." Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1193 (11th Cir.2004) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ). In Cipollone, the Supreme Court explained, "The central inquiry in each case is ... whether the legal duty that is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion’...." Cipollone, 505 U.S. at 523–24, 112 S.Ct. 2608 (quoting 15 U.S.C. § 1334(b) ). Cipollone addresses causes of action of failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to misrepresent or conceal material facts, and a plurality of the Court "found that state laws which required a showing that warnings on cigarettes should have been more clearly stated, were preempted, and the state law claims based on the manufacturer's practices of testing or research unrelated to advertising were not preempted." Davis, 973 So.2d at 471. Accordingly, not all tobacco claims are preempted, "only certain ones." Id. at 472.

Recently, in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir.2015), the Eleventh Circuit held that Engle progeny strict liability and negligence claims are implicitly preempted by federal law. Id. at 1280. Rather than defining a legal duty or duties imposed by Florida case law with respect to strict liability and negligence claims pursuant to the test propounded in Cipollone, the Eleventh Circuit identifies "[t]hree aspects of that litigation [that] inform how we characterize the duty it has come to impose on cigarette manufacturers":

First, the Engle class definition does not distinguish among types of smokers, types of cigarette manufacturers, or types of cigarettes. It applies across the board. The class definition thus creates a "brandless" cigarette, one produced by all defendants and smoked by all plaintiffs at all times throughout the class period.
Second, the Phase I findings, given claim-preclusive effect by Douglas reading Engle III, concern conduct common to the class.... To avoid a due process violation, the Phase I findings must turn on the only common conduct presented at trial—that the defendants produced, and the plaintiffs smoked, cigarettes containing nicotine that are addictive and cause disease.
Third, the Douglas causation instruction removes the need to litigate brand-specific defects in Engle -progeny trials altogether. Progeny plaintiffs must only prove how their addiction to cigarettes containing nicotine caused their injuries, not how the specific conduct of a specific defendant caused their injuries.
Taken together, these three factors compel the conclusion that Engle strict-liability and negligence claims have imposed a duty on all cigarette manufacturers that they breached every time they placed a cigarette on the market. That result is inconsistent with the full purposes and objectives of Congress, which has sought for over fifty years to safeguard consumers' right to choose whether to smoke or not to smoke.

Id. at 1279–80. Graham concludes:

[A]s a result of the interplay between the Florida Supreme Court's interpretations of the Engle findings and the strictures of due process, the necessary basis for Graham's Engle -progeny strict-liability and negligence claims is that all cigarettes sold during the class period were defective as a matter of law. This, in turn, imposed a common-law duty on cigarette manufacturers that they necessarily breached every time they placed a cigarette on the market. Such a duty operates, in essence, as a ban on cigarettes. Accordingly, it conflicts with Congress's clear purpose and objective of regulating—not banning—cigarettes, thereby leaving to adult consumers the choice whether to smoke cigarettes or to abstain. We therefore hold that Graham's claims are preempted by federal law.

Id. at 1282.

We disagree with Graham, and we respectfully note what we believe to be flaws in its reasoning. First, Graham overstates the effect of the past ten years of Florida tobacco case law by equating it to a ban on cigarette sales. As one commentator notes, "tort verdicts (which are hardly uniform), do not always arise to a state law ‘standard’; sometimes they may only ‘motivate an optional decision’ for a defendant to behave differently." Douglas J. McNamara, What Were They Smoking? Why the Graham Court was Wrong, LAW 360, May 14, 2015 (footnote omitted) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) ). "The proper [preemption] inquiry calls for an examination of the elements of the common-law duty at issue, see Cipollone, 505 U.S. at 524, 112 S.Ct. 2608 (plurality opinion); it does not call for speculation as to whether a jury verdict will prompt the manufacturer to take any particular action (a question, in any event, that will depend on a variety of cost/benefit calculations best left to the manufacturer's accountants)." Bates, 544 U.S. at 445, 125 S.Ct. 1788.2

Additionally, Graham suggests that state and presumably local governments cannot ban a product that Congress has chosen to regulate. This blanket argument cannot withstand the test of experience and logic. For example, numerous so-called dry counties exist throughout the United States today despite federal regulation of alcohol.

Furthermore, Graham relies in part on the 1965 Federal Cigarette Labeling and Advertising Act ("FCLAA"), codified as amended at 15 U.S.C. §§ 1331 –1341, to conclude that Congress intended to preempt states from banning the sale of cigarettes. See Graham, 782 F.3d at 1277. In the "Congressional declaration of policy and purpose" of the FCLAA, Congress expressed its policy to ensure that "commerce and the national economy may be (A) protected to the maximum extent consistent with [the objective of adequately informing the public of the risks of smoking] and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health." 15 U.S.C. § 1331. It then imposed regulations for the labeling and advertising of cigarettes, and banned states from imposing any separate regulations on the same activities. We believe this only demonstrates an intent to prevent states from imposing differing laws on the labeling and advertising of cigarettes, which undoubtedly would have been cumbersome for cigarette companies to comply with, and would have in turn stymied interstate commerce of cigarettes. It does not, however, indicate an intent to preempt states from banning the sale of cigarettes, a state right...

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7 cases
  • Berger v. Philip Morris USA, Inc.
    • United States
    • U.S. District Court — Middle District of Florida
    • May 5, 2016
    ...might variously have had towards the unimpeded sale of cigarettes. Like other courts in Florida, e.g. R.J. Reynolds Tobacco Co. v. Marotta , 182 So.3d 829, 831–34 (Fla. 4th DCA 2016), and around the country, e.g. , Hunter v. Philip Morris USA, Inc. , 582 F.3d 1039, 1046–48 (9th Cir.2009) ; ......
  • R.J. Reynolds Tobacco Co. v. Marotta
    • United States
    • Florida Supreme Court
    • April 6, 2017
    ...C.J.This case is before the Court for review of the decision of the Fourth District Court of Appeal in R.J. Reynolds Tobacco Co. v. Marotta , 182 So.3d 829 (Fla. 4th DCA 2016). In its decision, the district court ruled upon the following question, which the court certified to be of great pu......
  • Philip Morris USA, Inc. v. Lourie
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    • August 10, 2016
    ...1380, 1381 (M.D.Fla.1990). The reasoning in the Graham panel opinion has also been recently rejected in R.J. Reynolds Tobacco Co. v. Marotta, 182 So.3d 829 (Fla. 4th DCA 2016), review granted, No. SC16–218, 2016 WL 934971 (Fla. Mar. 8, 2016), and Berger v. Philip Morris USA, Inc., 3:09–CV–1......
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