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R.J. Reynolds Tobacco Co. v. Marotta

Supreme Court of Florida

April 6, 2017

PHIL J. MAROTTA, etc., Respondent.


         Application for Review of the Decision of the District Court of Appeal - Certified Great Public ImportanceBroward County, Fourth District - Case No. 4D13-1703

          Charles R.A. Morse of Jones Day, New York, New York; and Eric L. Lundt and Robert C. Weill of Sedgwick LLP, Miami, Florida, for Petitioner

          Philip Freidin of Freidin Brown, P.A., Miami, Florida; Richard B. Rosenthal of the Law Offices of Richard B. Rosenthal, P.A., Miami, Florida; Alex Alvarez of The Alvarez Law Firm, Coral Gables, Florida; Randy Rosenblum of Dolan Dobrinsky Rosenblum, LLP, Miami, Florida; and Robert E. Schack, Miami, Florida, for Respondent

          Celene H. Humphries, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa, Florida, for Amicus Curiae Florida Justice Association

          John S. Mills and Courtney Brewer of The Mills Firm, Tallahassee, Florida, for Amicus Curiae Engle Plaintiffs' Firms

          LABARGA, 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 public importance:


Id. at 834. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that Engle did not impose liability based solely on the sale of cigarettes, we rephrase the certified question as follows:


         We answer the rephrased question in the negative and approve the Fourth District's decision related to the preemption issue; however, we quash the decision below to the extent that it held that respondent, as representative of the estate of Phil Felice Marotta, was precluded from seeking punitive damages and remand for further proceedings consistent with this opinion.


         This case follows a long line of cases decided in light of Engle v. Liggett Group, Inc. (Engle III), 945 So.2d 1246 (Fla. 2006). In Engle, a group of smokers and their survivors filed a class action against major tobacco companies for damages allegedly caused by smoking-related injuries. Id. at 1256.[2] Among other things, the class sought compensatory damages based on various theories, including strict liability and negligence.

         After certification of the class in R.J. Reynolds Tobacco Co. v. Engle (Engle I), 672 So.2d 39 (Fla. 3d DCA 1996), the trial court developed a three-phase trial plan. Phase I consisted of a year-long jury trial to determine issues related to liability and entitlement to punitive damages. Liggett Grp. Inc. v. Engle (Engle II), 853 So.2d 434, 441 (Fla. 3d DCA 2003). The jury considered issues common to the entire class, including the defendants' conduct, general causation, and the effects of smoking on health. Id. The 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. Id.

         In Phase II, the same jury decided the individual causation and damages for the class representatives, as well as the amount of punitive damages to be awarded to the entire class. Id. The jury found that the class representatives were entitled to compensatory damages, and awarded class-wide punitive damages in the amount of $145 billion.[3]

         The plan for Phase III was to have different juries decide the individual causation and damages for each class member, but prior to the start of Phase III, the class was decertified "because individualized issues such as legal causation, comparative fault, and damages predominate[d]." Engle III, 945 So.2d at 1268. This Court held that individual class members could initiate individual actions against the Engle defendants "within one year of the issuance of [Engle III] with res judicata effect given to certain Phase I findings." Id. at 1254.

         Specifically, this Court held that the following Phase I findings were entitled to res judicata effect: (1) smoking cigarettes causes certain enumerated diseases, including lung cancer; (2) nicotine is addictive; (3) the Engle "defendants placed cigarettes on the market that were defective and unreasonably dangerous"; (4) 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"; (5) 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"; (6) "all of the [Engle] defendants sold or supplied cigarettes that were defective"; (7) "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 (8) "all of the [Engle] defendants were negligent." Id. at 1276-77. However, this Court disapproved the use of the Phase I findings relating to intentional infliction of emotional distress, fraud and misrepresentation, and civil conspiracy based on misrepresentation because the nonspecific findings were "inadequate to allow a subsequent jury to consider individual questions of reliance and legal cause." Id. at 1255.

         After Engle III was issued, there was some confusion among the courts regarding whether the Phase I findings were to be given the effect of claim preclusion or issue preclusion. This Court clarified that the "res judicata" effect in Engle III is claim preclusion, not issue preclusion. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 432 (Fla. 2013).


         The representative for the estate of Phil Felice Marotta (Marotta) filed an action as an Engle progeny plaintiff against R.J. Reynolds Tobacco Company (Reynolds), an Engle defendant, asserting that Marotta's addiction to Reynolds' cigarettes caused his death by lung cancer. Marotta raised several claims based on the Engle Phase I findings, including strict liability, negligence, concealment, and conspiracy. The jury found Reynolds liable on the strict liability claim, but not on the negligence, concealment, or conspiracy claims. The jury assigned 58% of the fault to Reynolds and 42% to Marotta and awarded total compensatory damages of $6 million (reduced to $3.48 million to reflect comparative fault determinations). Reynolds appealed the final judgment, and Marotta cross-appealed the trial court's decision to preclude the jury from considering punitive damages on the product liability claim. Marotta, 182 So.3d at 830.

         On appeal, the Fourth District affirmed. Id. In its opinion, the court wrote to specifically address Reynolds' argument 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." Id. at 831. The district court did not find merit in this argument, explaining that only certain tobacco claims are preempted by federal law, and "[w]hether a state law claim is preempted is dependent on the exact nature of that particular claim." Id. (quoting Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1193 (11th Cir. 2004)). Federal law provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. § 1334(b) (2012) (emphasis added). The district court therefore concluded that "[t]he central inquiry in each [preemption] 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.' " Marotta, 182 So.3d at 831 (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 523-24 (1992) (plurality opinion) (quoting 15 U.S.C. § 1334(b) (1988))). The district court therefore concluded that only state law claims related to the advertisement and promotion of cigarettes are preempted, but strict liability and negligence claims are not. Id. at 834.

         The district court in Marotta acknowledged that the United States Court of Appeals for the Eleventh Circuit recently reached the opposite conclusion in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir. 2015), reh'g en banc granted, opinion vacated, 811 F.3d 434 (11th Cir. 2016). In Graham, the federal court held that Engle progeny product liability claims are implicitly preempted by federal law. Id. at 1280. The court determined that the Engle "Phase I findings regarding strict-liability and negligence amount to the bare assertion that cigarettes are inherently defective-and cigarette manufacturers inherently negligent-because cigarettes are addictive and cause disease." Id. at 1281. The court concluded that Engle "imposed a common-law duty on cigarette manufacturers that they necessarily breached every time they placed a cigarette on the market, " and because such a duty operates as a ban on cigarettes, "it conflicts with Congress's clear purpose and objective of regulating-not banning- cigarettes." Id. at 1282. However, the circuit court conceded that federal law does not preempt all state law tort claims against tobacco companies; rather, it only preempts those claims that rely solely on Engle Phase I findings or are based on a theory of liability that all cigarettes are defective as a matter of law. Id. at 1284.

         The Marotta court disagreed with the decision in Graham for several reasons. First, Marotta determined that Graham "overstates the effect of the past ten years of Florida tobacco case law by equating it to a ban on cigarette sales." Marotta, 182 So.3d at 832. Second, Marotta disagreed with the Eleventh Circuit's conclusion that state governments cannot ban a product that Congress has chosen to regulate, stating it amounted to a blanket argument that "cannot withstand the test of experience and logic, " citing federal regulation of alcohol as an example. Id. at 833. Further, the district court in Marotta noted that Graham relied in part on the Federal Cigarette Labeling and Advertising Act of 1965 (1965 Act or FCLAA), Pub. L. No. 89-92, 79 Stat. 282 (1965), to conclude that Congress intended to prevent states from banning the sale of cigarettes. See Graham, 782 F.3d at 1277-78. The district court in Marotta disagreed with the assertion that the FCLAA indicates any congressional "intent to preempt states from banning the sale of cigarettes, a state right traditionally reserved within a state's police powers, or from permitting state tort claims relating to the production and sale of cigarettes." Marotta, 182 So.3d at 833. The district court concluded that the FCLAA only demonstrates Congress's intent to establish uniform labeling and advertising requirements by preventing states from imposing their own requirements, a result that would have created a burden on the interstate commerce of cigarettes. Id.

         The district court in Marotta also noted that Graham relied in part on a provision of the 2009 Family Smoking Prevention and Tobacco Control Act (FSPTCA), Pub. L. No. 111-31, 123 Stat. 1776 (2009), codified as 21 U.S.C. § 387a (2012), which grants the Food and Drug Administration (FDA) authority to regulate cigarettes, but specifically prohibits the FDA from banning them. See Graham, 782 F.3d at 1278-79. However, the district court observed that the FSPTCA contains no such prohibition on states from banning cigarettes. Marotta, 182 So.3d at 833. The district court explained that, although the FSPTCA "expressly preempts states from regulating certain aspects of cigarette commerce, such as labeling and manufacturing, it [also] specifically acknowledges states' rights to regulate other aspects of tobacco, including a state's right to prohibit the sale of tobacco." Id. The district court concluded:

[B]ecause Engle progeny cases do not support a conclusion that strict product liability claims amount to a ban on the sale of cigarettes, and because federal tobacco laws expressly preserve a state's ability to regulate tobacco in ways other than manufacturing and labeling while declining to "modify or otherwise affect any action or the liability of any person under the product liability law of any State, " we find no conflict between the applicable state and federal laws. Accordingly, the trial court did not err in rejecting the defendant's argument that negligence and strict liability claims are preempted by federal law.

Id. at 834. Nevertheless, the district court certified the question to this Court in acknowledgement of Graham's contrary ...

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