R.J. REYNOLDS TOBACCO COMPANY, Petitioner,
PHIL J. MAROTTA, etc., Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
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,
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
H. Humphries, Maegen P. Luka, and Thomas J. Seider of
Brannock & Humphries, Tampa, Florida, for Amicus Curiae
Florida Justice Association
S. Mills and Courtney Brewer of The Mills Firm, Tallahassee,
Florida, for Amicus Curiae Engle Plaintiffs'
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
WHETHER FEDERAL LAW IMPLICITLY PREEMPTS STATE LAW TORT CLAIMS
OF STRICT LIABILITY AND NEGLIGENCE BY
ENGLE PROGENY PLAINTIFFS BASED ON THE SALE OF
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
WHETHER FEDERAL LAW IMPLICITLY PREEMPTS STATE LAW TORT CLAIMS
OF STRICT LIABILITY AND NEGLIGENCE BY ENGLE PROGENY
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
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. Among other
things, the class sought compensatory damages based on
various theories, including strict liability and negligence.
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.
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.
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.
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.
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).
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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
Id. at 834. Nevertheless, the district court
certified the question to this Court in acknowledgement of
Graham's contrary ...