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From Products Liability Law Daily, April 2, 2014

Tobacco companies challenge application of issue preclusion in “Engle-progeny” cases

By Pamela C. Maloney, J.D.

Leading tobacco companies have submitted a number of petitions asking the U.S. Supreme Court to review the constitutionality of the preclusionary effect onEngle-progeny cases established by the Florida District Court of Appeals in R.J. Reynolds Tobacco Co.v. Jimmie Lee Brown (Docket No. 13-1187, March 28, 2014) and by the U.S. Court of Appeals for the Eleventh Circuit in Walker v. R.J. Reynolds Tobacco Co. (sub nom. R.J. Reynolds Tobacco Co. v. Walker, Docket No. 13-1193, March 28, 2014). R.J. Reynolds asked the court to hold its petition in the Brown case pending disposition of the Walker case; similarly, tobacco companies in remaining cases asked the High Court to hold those petitions pending disposition of the Walker and Brown cases.

 Background. The Engle litigation was originally filed against Liggett Group and other cigarette manufacturers as a class action in Miami-Dade County, Florida, in May 1994. The class consisted of all Florida citizens and residents (and their survivors) who, by November 21, 1996, “… have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarette smoking.” In July 2006, after a multi-year trial, the Florida Supreme Court decertified the class action, but determined that certain jury findings from the class trial could be used in individual Engle progeny cases, including jury findings that smoking causes lung cancer (among other diseases), that nicotine in cigarettes is addictive, and that the cigarette companies concealed material information concerning the health effects or addictive nature of smoking.

In the Walker case, R.J. Reynolds appealed money judgments in favor of survivors of two smokers, arguing that the holdings of the Engle class action should not have res judicata effect in later suits filed by individual smokers/their survivors, such as Walker, against the tobacco company. R.J. Reynolds contended that such an application violated its constitutional right to due process of law because the jury verdict in the class action was so ambiguous that it was impossible to tell whether the jury found that each tobacco company acted wrongfully with respect to any specific brand of cigarette or any individual plaintiff. The Eleventh Circuit, however, affirmed the earlier rulings because it found that R.J. Reynolds had a full and fair opportunity to be heard in the Florida class action and that the application of res judicata did not violate the cigarette manufacturer’s right to due process.

The U.S. Supreme Court has declined to accept any appeals by Liggett and other tobacco companies of adverse verdicts in the Engle progeny cases (see for example, Philip Morris USA Inc. v. Douglas (Dkt. No. 13-191, August 9, 2013; cert. denied October 7, 2013) and R.J. Reynolds Tobacco Co. v. Clay (Dkt. No. 12-272, August 31, 2012; cert. denied November 26, 2012)).

Questions presented. In the Walker petition (Dkt. No. 13-1193),  R.J. Reynolds asked “Do either full faith and credit principles or due process permit generic findings from the decertified Engle class action—findings the Florida Supreme Court deemed “useless” for issue preclusion purposes—to be used to excuse thousands of plaintiffs in follow-on cases from proving essential elements of their claims?” This question was limited to the due process challenge in the Brownpetition (Dkt. No. 13-1187), in which the tobacco company asked whether the generic findings from the decertified Engle class action—findings the Florida Supreme Court deemed “useless” for issue preclusion purposes—can be used to excuse thousands of plaintiffs in follow-on cases from proving essential elements of their claims without violating defendants’ due process rights. The question posed in the remaining petitions was similar to the questions posed inWalker and Brown.

The case numbers are: 13-118013-118513-118613-1187 (Brown), 13-118813-118913-119013-119113-1192, and 13-1193 (Walker).

Attorneys:Paul D. Clement (Bancroft PLLC) and Gregory G. Katsas (Jones Day) for R.J. Reynolds. Miguel A. Estrada (Gibson, Dunn & Crutcher LLP) and Andrew L. Frey (Mayer Brown LLP) for Philip Morris USA Inc. William R. Stein (Hughes Hubbard & Reed LLP) and Elliot H. Scherker (Greenberg Traurig, P.A.) for Lorillard Tobacco Co.

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

MainStory: TopStory ClassActLitigationNews TobaccoProductsNews

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