[Copyrighted Material Omitted]
P. Geraghty of Shook, Hardy & Bacon, LLP, Raoul G.
Cantero, III of White & Case, LLP, Miami, FL, Jennifer
Marie Voss and Cathy A. Kamm of Shook, Hardy & Bacon,
LLP, Gary L. Sasso of Carlton Fields, P.A., Tampa, FL, Leah
A. Sevi, Carlton Fields, Tallahassee, FL, David Boies of
Boies, Schiller & Flexner, LLP, Armonk, NY, Lauren R.
Goldman of Mayer, Brown, LLP, New York, NY, for Petitioner
Philip Morris USA, Inc.
Gregory George Katsas of Jones & Day, Washington, DC, for
Petitioner R.J. Reynolds Tobacco Company.
Haynes Curtis of Clark & Silvergate, P.A., and Kelly Ann
Luther of Kasowitz, Benson, Torres & Friedman, LLP,
Miami, FL, for Liggett Group LLC.
Martin Acosta, Law Office of Howard M. Acosta, Kent G.
Whittemore of the Whittemore Law Group, P.A., Bruce Howard
Denson of Bruce Howard Denson, P.A., St. Petersburg, FL,
Steven L. Brannock, Celene Harrell Humphries and Tyler K.
Pitchford of Brannock & Humphries, Tampa, FL, for
Respondent James L. Douglas.
Stewart Mills and Courtney Rebecca Brewer of the Mills Firm,
P.A., Tallahassee, FL, for Respondent Engle Plaintiff's
review the decision of the Second District Court of Appeal in
Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002,
1011 (Fla. 2d DCA 2012), in which the Second
District certified the following question of great public
DOES ACCEPTING AS RES JUDICATA THE EIGHT PHASE I FINDINGS
APPROVED IN ENGLE V. LIGGETT GROUP, INC., 945 So.2d
1246 (Fla.2006), VIOLATE THE [ ENGLE
DEFENDANTS'] DUE PROCESS RIGHTS GUARANTEED BY THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?
our decision in Engle, we answer the certified
question in the negative and approve the result of the Second
District's decision affirming the general verdict for the
plaintiff based on strict liability. However, as explained
below, we disapprove the Second District's rejection of
negligence as a basis for the general verdict because the
Second District's analysis requires causation
instructions and findings beyond those required by
Engle. We also decline the defendants' request
to revisit our decision in Engle.
Engle and the Phase I Findings
1994, smokers and their survivors filed a class action
against cigarette companies and industry organizations for
damages allegedly caused by smoking-related injuries.
See R.J. Reynolds Tobacco Co. v. Engle, 672
So.2d 39, 40 (Fla. 3d DCA 1996)( Engle I ). The
Engle class sought damages " for certain
diseases and medical conditions allegedly contracted [because
of] addiction to smoking cigarettes containing nicotine
produced by the [ Engle ] defendants."
Id. The complaint alleged causes of action for
" strict liability in tort, fraud and misrepresentation,
conspiracy to commit fraud and misrepresentation, breach of
implied warranty of merchantability and fitness, negligence,
breach of express warranty, [and] intentional infliction of
mental distress." Id.
Engle defendants filed an interlocutory appeal
challenging the class certification. Id. In
Engle I, the Third District affirmed certification
with the class defined as follows:
[All Florida citizens and residents], and their survivors,
who have suffered, presently suffer or have died from
diseases and medical conditions caused by their addiction to
cigarettes that contain nicotine.
Id. at 40, 42.
remand, the trial court developed a three-phase trial plan.
In Phase I, the jury was to decide issues common to the
entire class, including general causation, the Engle
defendants' common liability to the class members for the
conduct alleged in the complaint, and the class's
entitlement to punitive damages. See Engle v.
R.J. Reynolds Tobacco, 2000 WL 33534572, at *12 (Fla.
11th Cir.Ct.2000)( Engle F.J. ), rev'd,
Liggett Group, Inc. v. Engle, 853 So.2d 434 (Fla. 3d
DCA 2003)( Engle II ), approved in part and
quashed in part, Engle, 945 So.2d 1246. If the
jury ruled against the Engle defendants in Phase I,
the same jury would then decide individual causation and
damages for the class representatives and the amount of
punitive damages to be awarded to the entire class in Phase
II. Id. Then, in Phase III, different juries would
decide individual causation and damages for each class
member.  Id. After all Phase III
were complete, the trial court would divide the punitive
damages among the successful class members. Engle
II, 853 So.2d at 442.
with the trial plan's focus on common liability in Phase
I, the class action jury was not asked to find brand-specific
defects in the Engle defendants' cigarettes or
to identify specific tortious actions. Instead, in
instructing the jury, the Engle trial court
explained that it was to determine " all common
liability issues" for the class concerning " the
conduct of the tobacco industry." Though the
Engle defendants requested that the trial court use
a verdict form that would have required the jury to include
narrative explanations identifying specific defects and
tortious actions, the trial court rejected it, and they did
not provide the court with an alternative form.
Phase I, proof submitted on strict liability included
brand-specific defects, but it also included proof that the
Engle defendants' cigarettes were defective
because they are addictive and cause disease. The
Engle defendants defended this defect theory,
including presenting testimony that cigarettes were not
addictive and were not proven to cause disease and that they
had designed the safest cigarette possible. Similarly,
arguments concerning the class's negligence, warranty,
fraud, and conspiracy claims included whether the
Engle defendants failed to address the health
effects and addictive nature of cigarettes, manipulated
nicotine levels to make cigarettes more addictive, and
concealed information about the dangers of smoking.
trial on the Phase I common liability issues, the
Engle jury returned a verdict in favor of the class
on all counts and determined that the Engle
defendants' actions entitled the class to punitive
damages. See Engle, 945 So.2d at 1256-57.
In denying the Engle defendants' motion for
directed verdict, the trial court summarized the evidence
that had been presented in support of each common liability
theory and found it sufficient to support the jury's
verdict. See Engle F.J. at *2-5.
Specifically, regarding strict liability, the trial court
There was more than sufficient evidence at trial to satisfy
the legal requirements of this [c]ount and to support the
jury verdict that cigarettes manufactured and placed on the
market by the [ Engle ] defendants were defective in
many ways including the fact that the cigarettes contained
many carcinogens, nitrosamines, and other deleterious
compounds such as carbon monoxide. That levels of nicotine
were manipulated, sometime[s] by utilization of ammonia to
achieve a desired " free basing effect" of pure
nicotine to the brain, and sometime[s] by using a higher
nicotine content tobacco called Y-1, and by other means such
as manipulation of the levels of tar and nicotine. The
evidence more than sufficiently
proved that nicotine is an addictive substance which when
combined with other deleterious properties, made the
cigarette unreasonably dangerous. The evidence also showed
some cigarettes were manufactured with the breathing air
holes in the filter being too close to the lips so that they
were covered by the smoker thereby increasing the amount of
the deleterious effect of smoking the cigarette. There was
also evidence at trial that some filters being test marketed
utilize glass fibers that could produce disease and
deleterious effects if inhaled by a smoker.
Id. at *2. In addition, regarding negligence, the
trial court held that " [t]he [ Engle ]
defendants according to the testimony, well knew from their
own research, that cigarettes were harmful to health and were
carcinogenic and addictive. By allowing the sale and
distribution of said product under those circumstances
without taking reasonable measures to prevent injury,
constitutes ... negligence." Id. at *4.
the common liability issues decided, the Engle jury
moved to Phase II, in which it found that three class
representatives were entitled to compensatory damages under
all counts. Engle, 945 So.2d at 1257. In addition,
the Phase II jury awarded class-wide punitive damages in the
amount of $145 billion based on its findings concerning the
Engle defendants' conduct. Id. By this
point, the parties had collectively presented " over 150
witnesses [and] thousands of documents and exhibits, and [the
jury had heard] over 57,000 pages of testimony."
Engle F.J. at *1. Before the individual trials
contemplated by Phase III of the class action trial plan
could begin, the Engle defendants appealed.
See Engle II, 853 So.2d at 442.
the Third District's decision in that appeal, this Court
decertified the class " because individualized issues
such as legal causation, comparative fault, and damages
predominate." Engle, 945 So.2d at 1268. In
addition, we reversed the class-wide punitive damages award
as premature because, though the Phase I jury decided the
Engle defendants' common liability to the class
under certain claims, it did not decide the
plaintiff-specific elements of those claims and, therefore,
" did not determine whether the defendants were
liable to anyone." Id. at 1262-63 (quoting
Engle II, 853 So.2d at 450). However, we held "
that certain common liability findings" made by the
class action jury (known as the " Phase I findings"
) would have " res judicata effect" in individual
damages actions brought within a year of the opinion's
mandate. Id. at 1254, 1277.
Specifically, this Court in Engle held that the
following Phase I findings are entitled to res judicata
effect: (i) " that smoking cigarettes causes"
certain named diseases including COPD and lung cancer; (ii)
" that nicotine in cigarettes is addictive; " (iii)
" that the [ Engle ] defendants placed
cigarettes on the market that were defective and unreasonably
dangerous; " (iv) " that the [ Engle ]
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; " (v) " that the [
Engle ] 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;
" (vi) " that all of the [ Engle ]
defendants sold or supplied cigarettes that were defective;
" (vii) " that all of the [ Engle ]
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 (viii) " that all of the [
Engle ] defendants were negligent."
Id. at 1276-77. However, this Court disapproved the
use of the Phase I conduct findings relating to intentional
infliction of emotional distress, fraud and
misrepresentation, and civil conspiracy based on
misrepresentation because they were " inadequate to
allow a subsequent jury to consider individual questions of
reliance and legal cause." Id. at 1255.
Engle, we explained res judicata generally:
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. We have explained the
doctrine of res judicata as follows:
A judgment on the merits rendered in a former suit
between the same parties or their privies, upon the same
cause of action, by a court of competent jurisdiction, is
conclusive not only as to every matter which was offered and
received to sustain or defeat the claim, but as to every
other matter which might with propriety have been litigated
and determined in that action.
Id. at 1259 (alteration in original) (quoting
Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)).
Second District explained the facts of this case, which
applies the Engle Phase I findings to an individual
plaintiff's strict liability and negligence claims, as
Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and
Liggett Group, LLC (the [defendants] ), challenge the final
judgment entered after jury trial which awarded James L.
Douglas, as the personal representative of the Estate of
Charlotte M. Douglas, $2.5 million as damages on claims based
on Mrs. Douglas' smoking-related death.
Mrs. Douglas began smoking cigarettes in the mid-1960s as a
teen. The complaint alleged that it was her addiction to
cigarettes manufactured by the [defendants] that caused her
to develop chronic obstructive pulmonary disease (COPD) and
lung cancer, which ultimately led to her death in 2008 at the
age of sixty-two.
Mr. Douglas' third amended complaint alleged claims for
strict liability, negligence, breach of express and implied
warranty, fraudulent concealment, and conspiracy to
fraudulently conceal. Mr. Douglas originally sought both
compensatory and punitive damages, but he dismissed his claim
for punitive damages before trial. [The jury, using a general
verdict form, found the defendants] liable for Mrs.
Douglas' death, apportioning fault as follows: 50% to
Mrs. Douglas, 18% to Philip Morris, 5% to R.J. Reynolds, and
27% to Liggett. Additionally, the jury found against Mr.
Douglas on the issue of Mrs. Douglas' detrimental
reliance on concealment or omissions by the [defendants].
The crux of this appeal is whether the trial court erred in
the application of the findings reached by a jury and
affirmed by the Florida Supreme Court in the class action
case Engle v. Liggett Group, Inc., 945 So.2d 1246
(Fla.2006)[, where] the Florida Supreme Court affirmed [eight
of] the [class] jury's [Phase I]
findings[, including] (1) that smoking cigarettes causes
certain named diseases; (2) " that nicotine in
cigarettes is addictive" ; (3) that the [defendants]
" placed cigarettes on the market that were defective
and unreasonably dangerous" ; ... and (8) that all the [
Engle defendants] " were negligent."
Douglas, 83 So.3d at 1003-04 (footnotes omitted)
(quoting Engle, 945 So.2d at 1276-77).
determining whether the trial court properly applied the
Phase I findings to Mr. Douglas' strict liability and
negligence claims, the Second District examined the trial
court's jury instructions and the general verdict form,
which did not ask the jury to return specific findings for
each cause of action the plaintiff alleged. Id. at
1004-05. Specifically, the trial court presented the jury
with a verdict form that contained five questions. The first
asked whether Mrs. Douglas was a member of the Engle
class;  the jury found that she was. The
second question asked the jury to determine whether "
smoking cigarettes manufactured by one or more of the
[d]efendants [was] a legal cause of [Mrs. Douglas']
death" and, if so, to determine whether " smoking
cigarettes" manufactured by each of the three named
defendants was " a legal cause of [Mrs. Douglas']
death."  The jury answered " [y]es"
to all parts of question two. Third, the verdict form asked
the jury to determine whether Mrs. Douglas " reasonably
rel[ied] to her detriment on the concealment or omission by
one or more of the [d]efendants of material information not
otherwise known or available or their failure to disclose
material facts concerning the health effects or addictive
nature of smoking cigarettes." The jury answered "
[n]o." Fourth, the verdict form asked the jury to
apportion fault that was a legal cause of Mrs. Douglas'
death between Mrs. Douglas and the three defendants. Lastly,
the verdict form asked the jury to determine the damages to
Mr. Douglas for Mrs. Douglas' death. The jury awarded $4
million of past damages and $1 million of future damages,
which the trial court reduced based on the jury's
apportionment of fault.
reviewing the jury instructions and verdict form, the Second
District addressed ...