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From Products Liability Law Daily, August 14, 2013

Cigarette maker petitions U.S. Supreme Court to review due process ramifications of Florida Supreme Court’s application of “claim preclusion”

By Susan Lasser, J.D.

Cigarette manufacturer, Philip Morris USA Inc., has petitioned the U.S. Supreme Court (Philip Morris USA Inc. v. Douglas, Dkt. No. 13-191, August 9, 2013) to review a decision by the Florida Supreme Court (Philip Morris USA, Inc. v. Douglas, March 14, 2013, Polston, C.J.) in which it affirmed a $2.5 million jury verdict awarded to James Douglas, as the personal representative of the Estate of Charlotte M. Douglas, for her smoking-related death. In so ruling, the state high court upheld its landmark decertification of a class action originally filed in 1994 by smokers and their survivors against cigarette companies and industry organizations for damages allegedly caused by smoking-related injuries (Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006)). The Engle decision allowed certain jury findings from the class action to have res judicata effect in subsequent lawsuits by individual class members seeking damages from the tobacco companies.

Cigarette manufacturer’s petition. In its petition, Philip Morris described the Engle decision as one in which the Florida Supreme Court partially upheld a massive class action brought on behalf of Florida smokers and ruled that certain “issues”—including defect and negligence—were suitable for class adjudication under Florida’s analog to the federal rules governing class certification orders (Fed. R. Civ. P. 23(c)(4)). According to the tobacco company, the Engle jury was presented with multiple theories of defect and negligence, “many of which applied only to a subset of class members, and the verdict form required the jury to find against the defendants if any one of the class's theories was proven.”

Turning to the Douglas case, which Philip Morris pointed out was one of more than 4,500 suits filed by “alleged Engle class members,” the company said that the Florida Supreme Court did not believe it was possible to determine which of the class’s alternative theories of defect and negligence the Engle jury actually found, and that the state high court “conceded that the Engle findings would be ‘useless’ if class members were required to establish what was actually decided in Engle.” The cigarette company explained that to make the findings useful to members of the “issues class” certified in Engle, the Florida high court “devised a new doctrine of offensive claim preclusion under which the class verdict is conclusively deemed to establish any issue that might have been decided in Engle.” According to Philip Morris, this was an unprecedented application of preclusion that violated the due process rights of defendant tobacco companies and cigarette manufacturers under the Fourteenth Amendment to the U.S. Constitution.

The cigarette maker complains to the U.S. Supreme Court that the Florida Supreme Court upheld “this unprecedented application of preclusion against a due process challenge” and notes that common law requires a party seeking to preclude litigation of an issue to demonstrate that a prior proceeding actually decided that “precise question.” Philip Morris objects to the ruling by the Florida Supreme Court that the “issues” decided in the Engle class action be given “claim-preclusive effect.”

Question presented. The question presented to the U.S. Supreme Court by the tobacco company is: whether the Due Process Clause is violated by the Florida Supreme Court’s new rule of preclusion, which permits Engle class members to establish petitioners’ liability without being required to prove essential elements of their claims or establishing that those elements were actually decided in their favor in a prior proceeding.

The docket number is 13-191.

Attorneys: Miguel A. Estrada (Gibson, Dunn & Crutcher LLP) for Philip Morris USA Inc. Gregory G. Katsas (Jones Day) and Paul D. Clement (Bancroft PLLC) for R.J. Reynolds Tobacco Co.

Companies: Philip Morris USA Inc. and R.J. Reynolds Tobacco Co.

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