Searcy v. R.J. Reynolds Tobacco Co.

Decision Date05 September 2018
Docket NumberNo. 13-15258,13-15258
Citation902 F.3d 1342
Parties Cheryl SEARCY, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Samuel Issacharoff, New York University School of Law, New York, NY, Kathryn E. Barnett, Law Office of Morgan & Morgan, Nashville, TN, Janna M. Blasingame, Stephanie J. Hartley, Richard Lantinberg, Norwood Wilner, The Wilner Firm, PA, Jacksonville, FL, Kenneth S. Byrd, Andrew R. Kaufman, Nashville, TN, Elizabeth Joan Cabraser, Nancy Chung, Jordan S. Elias, Heather A. Foster, Richard M. Heimann, Kent L. Klaudt, Sarah Robin London, Scott Purington Nealey, Robert J. Nelson, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Charles Easa Farah, Jr., Farah & Farah, PA, Jacksonville, FL, for Plaintiff-Appellee.

Stephanie Ethel Parker, Michael F. Stoer, John F. Yarber, Jones Day, Atlanta, GA, Keri Arnold, Ingo Sprie, Jr., Arnold & Porter, LLP, New York, NY, Dana G. Bradford, II, Smith Gambrell & Russell, LLP, Jacksonville, FL, Andrew S. Brenner, Mark Jurgen Heise, Boies Schiller & Flexner, LLP, Miami, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, Paul D. Clement, Kirkland & Ellis, LLP, Washington, DC, Karen C. Dyer, Boies Schiller & Flexner, LLP, Orlando, FL, Steven N. Geise, Jones Day, Cleveland, OH, Khalil Gharbieh, David E. Kouba, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Gwenda L. Laws, Womble Bond Dickinson (US) LLP, Raleigh, NC, Charles Richard Allan Morse, Jones Day, New York, NY, James B. Murphy, Jr., Terri Lynn Parker, Shook Hardy & Bacon, LLP, Tampa, FL, Robert B. Parrish, Joseph W. Prichard, Jr., David C. Reeves, Jeffrey Alan Yarbrough, Moseley Prichard Parrish Knight & Jones, Jacksonville, FL, Stephen N. Zack, Boies Schiller & Flexner, LLP, Miami, FL, for Defendant-Appellant R.J. Reynolds Tobacco Company.

Ingo Sprie, Jr., Keri Arnold, Arnold & Porter, LLP, New York, NY, Renee Tyndell Beaver, Judith Bernstein-Gaeta, Peter T. Grossi, Brittany E. Hamelers, M. Sean Laane, Geoffrey Michael, Mallori Browne Openchowski, Carolyn A. Pearce, Jason Alan Ross, Michael S. Tye, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Dana G. Bradford, II, Smith Gambrell & Russell, LLP, Jacksonville, FL, Andrew S. Brenner, Patricia Melville, Stephen N. Zack, Boies Schiller & Flexner, LLP, Miami, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, Christopher V. Cotton, Robert D. Homolka, Shook Hardy & Bacon, LLP, Kansas City, MO, Karen C. Dyer, Boies Schiller & Flexner, LLP, Orlando, FL, Miguel A. Estrada, Gibson Dunn & Crutcher, LLP, Washington, DC, Nathan D. Foster, Thomas W. Stoever, Jr., Arnold & Porter Kaye Scholer, LLP, Denver, CO, Michael Craig German, Arnold & Porter, LLP, New York, NY, Khalil Gharbieh, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Lauren R. Goldman, Mayer Brown, LLP, New York, NY, Mark Jurgen Heise, Boies Schiller & Flexner, LLP, Miami, FL, Cathy Ambersley Kamm, James B. Murphy, Jr., Terri Lynn Parker, Jennifer M. Voss, Shook Hardy & Bacon, LLP, Tampa, FL, David E. Kouba, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Kenneth J. Reilly, Shook Hardy & Bacon, LLP, Miami, FL, for Defendant-Appellant Phillip Morris USA, Inc.

Celene Harrell Humphries, Brannock & Humphries, PA, Tampa, FL, Lorence Jon Bielby, John K. Londot, Greenberg Traurig, LLP, Tallahassee, FL, Patrick P. Coll, Smith Hulsey & Busey, Jacksonville, FL, Wilfred P. Coronato, Hughes Hubbard & Reed LLP, Jersey City, NJ, John A. DeVault, III, Bedell Dittmar DeVault Pillans & Coxe, PA, Jacksonville, FL, Michael Dewberry, Woolsey Morcom, PLLC, Ponte Vedra, FL, Leonard A. Feiwus, Kasowitz Benson Torres LLP, New York, NY, Kelly Anne Luther, Giselle Gonzalez Manseur, Maria Helena Ruiz, Kasowitz Benson Torres & Friedman, LLP, Miami, FL, Theodore V.H. Mayer, Robb W. Patryk, Cecily C. Williams, Hughes Hubbard & Reed, LLP, New York, NY, Nicolas Swerdloff, I, Kasowitz Benson Torres & Friedman, LLP, Miami, FL, for Amicus Curiae Engle State Plaintiffs' Firms Service.

Before MARTIN, ANDERSON, and JULIE CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:

Cheryl Searcy ("Plaintiff") sued the defendants, R.J. Reynolds Tobacco Company and Philip Morris Inc. (together, "Defendants") for unintentional and intentional torts arising from the death of her mother, Carol Lasard, alleging that Lasard’s illnesses were caused by her addiction to cigarettes manufactured by Defendants. The jury found for Plaintiff on both the unintentional and intentional tort claims and awarded substantial damages. Defendants assert on appeal that the district court violated their due process and Seventh Amendment rights when it directed the jury that it should deem Defendants’ alleged tortious conduct in the present case to have been proven based on the findings of another jury in a prior proceeding. Defendants also contend that the district court should have applied Florida’s comparative fault statute to reduce the jury’s damages award based on the fault the jury attributed to Lasard. After careful review, we affirm the district court.

I. PROCEDURAL AND FACTUAL BACKGROUND
A. The Engle Litigation

This is an " Engle progeny" case—so named because it stems from the Engle class action initiated in 1994 in Florida state court against the major tobacco companies alleging negligence, strict liability, fraudulent concealment, and conspiracy to conceal (among other claims), arising from these companies’ manufacture and sale of cigarettes. Although much ink could be (and has been) spilled describing the history of Engle litigation over the past two and a half decades, we cover only the most pertinent facts here.1

Suffice it to say, the initial Engle class action culminated in jury findings establishing certain elements of Defendants’ conduct (the " Engle jury findings") that the Florida Supreme Court determined would be given res judicata effect in subsequent lawsuits brought by members of the Engle class. See Engle v. Liggett Grp., Inc. , 945 So.2d 1246, 1276–77 (Fla. 2006). According to that court, the Engle jury did not decide the defendants’ liability, but instead "decided issues related to [the defendants’] conduct." Id. at 1263. As a result, the Florida Supreme Court held that Engle "progeny" plaintiffs may use the Engle jury findings to establish the conduct elements for the "strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal claims alleged by the Engle class." Philip Morris USA, Inc. v. Douglas , 110 So.3d 419, 436 (Fla. 2013).

Specifically, the Engle jury findings establish: (1) "that smoking cigarettes causes" various diseases, including "lung cancer

"; (2) "that nicotine in cigarettes is addictive"; (3) "that the defendants placed cigarettes on the market that were defective and unreasonably dangerous"; (4) "that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both"; (5) "that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment"; (6) "that all of the defendants sold or supplied cigarettes that were defective"; (7) "that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants"; and (8) "that all of the defendants were negligent." Engle , 945 So.2d at 1276–77.

Thereafter, in the progeny phase of Engle litigation, "individual plaintiffs must establish (i) membership in the Engle class; (ii) individual causation, i.e., that addiction to smoking the Engle defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged; and (iii) damages." Douglas , 110 So.3d at 430.

B. This Case

Plaintiff’s mother, Carol Lasard, died of lung cancer

and chronic obstructive pulmonary disease, having been addicted to cigarettes since she was fifteen years old.

Proceeding as an Engle class member, Plaintiff sued both R.J. Reynolds and Phillip Morris—the companies that manufactured the cigarettes Plaintiff claims caused her mother’s death. She asserted both non-intentional tort claims (negligence and strict liability) and intentional tort claims (concealment and conspiracy to conceal). At issue for purposes of Defendants’ present due process challenge are the intentional tort claims, hereinafter referred to as the "concealment claims." As to the concealment claims before it, the Engle jury had found that the defendant tobacco companies had "concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both" and further that these defendants had agreed to conceal "information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment." See Engle , 945 So.2d at 1277 (emphasis added). Yet, to prevail on an intentional tort claim, a plaintiff who is a member of the Engle class cannot rest solely on the above Engle findings but must prove that the defendant’s tortious act caused her injury: that is, for a concealment claim, the plaintiff must show that in deciding or continuing to smoke, she relied on the particular misleading information disseminated by the particular defendant and that such reliance caused harm. See Philip Morris USA, Inc. v. Russo , 175 So.3d 681, 686 (Fla. 2015) (" Engle -progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims."); Hess v. Philip Morris USA,...

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  • SUPPLEMENTING SUPPLEMENTAL BRIEFING.
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