IN THE UNITED STATES COURT OF APPEALS FOR...

Case No. 13-14590

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

EARL E. GRAHAM, etc., Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY et al., Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of Florida

AMICUS BRIEF OF ENGLE STATE PLAINTIFFS’ FIRMS IN SUPPORT OF PLAINTIFF’S PETITION FOR REHEARING EN BANC

Steven L. Brannock Celene Harrell Humphries Philip A. Padovano Maegan P. Luka Brannock & Humphries 100 South Ashley Drive, Suite 1130 Tampa, Florida 33602 (813) 223-4300 [email protected]

John S. Mills Courtney Brewer The Mills Firm, P.A. 203 North Gadsden Street, Suite 1A Tallahassee, Florida 32301 (850) 765-0897 [email protected] [email protected] Kenneth S. Canfield Doffermyre Shields Canfield & Knowles, LLC 1355 Peachtree Street, Suite 1600 Atlanta, Georgia 30309 (404) 881-8900 [email protected]

Counsel for Amici Curiae Engle State Plaintiffs’ Firms

Case: 13-14590 Date Filed: 05/04/2015 Page: 1 of 37

Graham v. R.J. Reynolds Tobacco Co., Case No. 13-14590

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

In compliance with 11th Cir. R. 26.1-1, the undersigned certifies that the

following is a complete list of all trial judge(s), attorneys, persons, associations of

persons, firms, partnerships, or corporations that have an interest in the outcome of

this particular case or appeal, and includes subsidiaries, conglomerates, affiliates

and parent corporations, including any publicly held company that owns 10% or

more of the party’s stock, and other identifiable legal entities related to a party.

1. Abrahamson & Uiterwyk – Amicus Curiae

2. Altria Group, Inc.- Publicly held parent corporation of Defendant

Philip Morris USA, Inc.

3. Arnold & Porter, LLP – Counsel for Defendant Philip Morris USA,

Inc.

4. Arnold, Keri – Counsel for Defendant Philip Morris USA, Inc.

5. Avera & Smith, LLP – Amicus Curiae

6. Baker, Frederick C. – Former Counsel for Plaintiff

7. Bancroft, PLLC – Counsel for Defendant R.J. Reynolds Tobacco

Company

8. Baringer, Randal S. – Counsel for Defendant R.J. Reynolds Tobacco

Company

9. Barnett, Kathryn E. – Former counsel for Plaintiff

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10. Bedell, Dittmar, DeVault, Pillans & Coxe, PA – Counsel for former

Defendant Lorillard Tobacco Company

11. Bernstein-Gaeta, Judith – Counsel for Defendant Philip Morris USA,

Inc.

12. Beaver, Renee T. – Counsel for Defendant Philip Morris USA, Inc.

13. Bidwell, Cecilia M. – Counsel for Defendant Philip Morris USA, Inc.

14. Blasingame, Janna M. – Counsel for Plaintiff

15. Boies, Schiller & Flexner, LLP – Counsel for Defendant Philip Morris

USA, Inc.

16. Bradford II, Dana G. – Counsel for Defendant Philip Morris USA,

Inc.

17. Brannock & Humphries – Amicus Curiae

18. Brannock, Steven L. – Counsel for Amicus Curiae

19. Brenner, Andrew S. – Counsel for Defendant Philip Morris USA, Inc.

20. Brewer, Courtney – Counsel for Amicus Curiae

21. British American Tobacco p.l.c – Through its ownership interest in

Brown & Williamson Holdings, Inc., the indirect holder of more than

10% of the stock of Reynolds American Inc., parent company of

Defendant R.J. Reynolds Tobacco Company

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22. Brown, Joshua Reuben – Counsel for Defendant Philip Morris USA,

Inc.

23. Brown & Williamson Holdings, Inc. – Holder of more than 10% of

the stock of Reynolds American Inc., parent company of Defendant

R.J. Reynolds Tobacco Company

24. Browne, Mallori C. – Counsel for Defendant Philip Morris USA, Inc.

25. Budner, Kevin – Counsel for Plaintiff

26. Burnette, Jason – Counsel for Defendant R.J. Reynolds Tobacco

Company

27. Byrd, Kenneth S. – Counsel for Plaintiff

28. Cabraser, Elizabeth Joan – Counsel for Plaintiff

29. Canfield, Kenneth S. – Counsel for Amicus Curiae

30. Clement, Paul D. – Counsel for Defendant R.J. Reynolds Tobacco

Company

31. Coll, Patrick P. – Counsel for former Defendant Lorillard Tobacco

Company

32. Corrigan, Timothy J. – Judge of the Middle District of Florida

33. Council for Tobacco Research, USA, Inc. – Former Defendant

34. Crane, Eliza S. – Counsel for Defendant Philip Morris USA, Inc.

35. Daboll, Bonnie C. – Counsel for Defendant Philip Morris USA, Inc.

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36. Dalton, Jr., Roy B. – Judge of Middle District of Florida

37. David J. Sales, P.A. – Amicus Curiae

38. Deupree, Rebecca M. – Counsel for Plaintiff

39. DeVault III, John Andrew – Counsel for former Defendant Lorillard

Tobacco Company

40. Dewberry, Michael J. – Special Master

41. Doffermyre Shields Canfield & Knowles, LLC – Amicus Curiae

42. Dorsal Tobacco Corp. – Former Defendant

43. Dyer, Karen C. – Counsel for Defendant Philip Morris USA, Inc.

44. Elias, Jordan – Counsel for Plaintiff

45. Farah & Farah, PA – Counsel for Plaintiff

46. Farah Jr., Charles Easa – Counsel for Plaintiff

47. Farah, Eddie Easa – Counsel for Plaintiff

48. Feiwus, Leonard A. – Counsel for former Defendants Liggett Group,

LLC and Vector Group, Ltd., Inc.

49. Fiorta, Timothy J. – Counsel for Defendant R.J. Reynolds Tobacco

Company

50. Galloway, Jeff H. – Counsel for former Defendant Lorillard Tobacco

Company

51. Geary, Roger C. – Counsel for Defendant Philip Morris USA, Inc.

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52. Geraghty, William Patrick – Counsel for Defendant Philip Morris

USA, Inc.

53. German, Michael C. – Counsel for Defendant Philip Morris USA, Inc.

54. Gharbieh, Khalil – Counsel for Defendant Philip Morris USA, Inc.

55. Gillen, Jr., William A. – Counsel for Defendant Philip Morris USA,

Inc.

56. Goldberg, Richard W. – Judge of the U.S. Court of International

Trade, sitting by designation

57. Goldman, Lauren Rosenblum – Counsel for Defendant Philip Morris

USA, Inc.

58. Gordon & Doner – Amicus Curiae

59. Gross, Jennifer – Former counsel for Plaintiff

60. Grossi, Jr., Peter T. – Counsel for Defendant Philip Morris USA, Inc.

61. Hamelers, Britanny E. - Counsel for Defendant Philip Morris USA,

Inc.

62. Hartley, Stephanie J. – Counsel for Plaintiff

63. Heimann, Richard M. – Counsel for Plaintiff

64. Heise, Mark J. – Counsel for Defendant Philip Morris USA, Inc.

65. Homolka, Robert D. – Counsel for Defendant Philip Morris USA, Inc.

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66. Hughes, Hubbard & Reed, LLP – Counsel for former Defendant

Lorillard Tobacco Company

67. Humphries, Celene Harrell – Counsel for Amicus Curiae

68. Invesco Ltd. – Holder of more than 10% of the stock of Reynolds

American Inc., parent company of Defendant R.J. Reynolds Tobacco

Company

69. Issacharoff, Samuel – Counsel for Plaintiff

70. Jackson, Brian A. – Counsel for Defendant Philip Morris USA, Inc.

71. Jones Day – Counsel for Defendant R.J. Reynolds Tobacco Company

72. Kamm, Cathy A. – Counsel for Defendant Philip Morris USA, Inc.

73. Kasowitz, Benson, Torres & Friedman, LLP – Counsel for Former

Defendants Liggett Group, LLC and Vector Group, Ltd.

74. Katsas, Gregory – Counsel for Defendant R.J. Reynolds Tobacco

Company

75. Kelley Uustal, PLC – Amicus Curiae

76. Klaudt, Kent L. – Counsel for Plaintiff

77. Knight, II, Andrew J. – Counsel for Defendant Philip Morris USA,

Inc.

78. Knopf Bigger – Amicus Curiae

79. Kouba, David E. – Counsel for Defendant Philip Morris USA, Inc.

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80. Kreiner, Christopher A. – Counsel for Defendant Philip Morris USA,

Inc.

81. Laane, M. Sean – Counsel for Defendant Philip Morris USA, Inc.

82. Lantinberg, Richard Jason – Counsel for Plaintiff

83. Law Offices of Howard M. Acosta – Amicus Curiae

84. Law Offices of John S. Kalil, P.A. – Amicus Curiae

85. Law Offices of William J. Wichmann, P.A. – Amicus Curiae

86. Lawson, L. Christine – Counsel for Defendant R.J. Reynolds Tobacco

Company

87. Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A. –

Amicus Curiae

88. Lieberman, Stacey K. – Counsel for former Defendant Lorillard

Tobacco Company

89. Lieff Cabraser Heimann & Bernstein, LLP – Counsel for Plaintiff

90. Lifton, Diane Elizabeth – Counsel for former Defendant Lorillard

Tobacco Company

91. Liggett Group, LLC – Former Defendant

92. London, Sarah R. – Counsel for Plaintiff

93. Lorillard Tobacco Company – Former Defendant

94. Luka, Maegan P. – Counsel for Amicus Curiae

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95. Luther, Kelly Anne – Counsel for former Defendants Liggett Group,

LLC and Vector Group, Ltd.

96. Mayer Brown, LLP – Counsel for Defendant Philip Morris USA, Inc.

97. Mayer, Theodore V.H. – Counsel for former Defendant Lorillard

Tobacco Company

98. Mayer-Cantú, Jerome – Counsel for Plaintiff

99. Mehrkam, Hilary R. – Counsel for Defendant R.J. Reynolds Tobacco

Company

100. Melville, Patricia – Counsel for Defendant Philip Morris USA, Inc.

101. Michael, Geoffrey – Counsel for Defendant Philip Morris USA, Inc.

102. Miglori, Donald A. – Counsel for Plaintiff

103. Mills, John S. – Counsel for Amicus Curiae

104. Molony, Daniel F. –Counsel for Defendant Philip Morris USA, Inc.

105. Molter, Derek R. – Counsel for Defendant Philip Morris USA, Inc.

106. Monde, David M. – Counsel for Defendant R.J. Reynolds Tobacco

Company

107. Monroe, Aulica Lin – Counsel for Defendant R.J. Reynolds Tobacco

Company

108. Morgan & Morgan – Amicus Curiae

109. Morse, Charles Richard Allan – Counsel for Defendant R.J. Reynolds

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110. Moseley, Prichard, Parrish, Knight & Jones – Counsel for Defendant

R.J. Reynolds Tobacco Company

111. Motley Rice LLC – Counsel for Plaintiff

112. Murphy, Jr., James B. –Counsel for Defendant Philip Morris USA,

Inc.

113. Nealey, Scott P. – Counsel for Plaintiff

114. Nelson, Robert J. – Counsel for Plaintiff

115. Nimaroff, Carole W. – Counsel for former Defendant Lorillard

Tobacco Company

116. Oliver, Lance V. – Counsel for Plaintiff

117. Padovano, Philip A. – Counsel for Amicus Curiae

118. Parker, Stephanie Ethel – Counsel for Defendant R.J. Reynolds

Tobacco Company

119. Parker, Terri L. – Counsel for Defendant Philip Morris USA, Inc.

120. Parrish, Robert B. – Counsel for Defendant R.J. Reynolds Tobacco

Company

121. Patyrk, Robb W. – Counsel for former Defendant Lorillard Tobacco

Company

122. Pearce, Carolyn A. – Counsel for Defendant Philip Morris USA, Inc.

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123. Persinger, Morgan E. – Counsel for Defendant R.J. Reynolds Tobacco

Company

124. Philip Morris International, Inc. – Parent Corporation to Defendant

Philip Morris USA, Inc.

125. Philip Morris USA, Inc. – Former Defendant

126. Pitchford, Jr., Joseph W. – Counsel for Defendant R.J. Reynolds

Tobacco Company

127. Prichard, Jr., Joseph W. – Counsel for Defendant R.J. Reynolds

Tobacco Company

128. Rabil, Joseph Matthew – Counsel for Defendant R.J. Reynolds

Tobacco Company

129. Reeves, David C. – Counsel for Defendant R.J. Reynolds Tobacco

Company

130. Reilly, Kenneth J. – Counsel for Defendant Philip Morris USA, Inc.

131. Reynolds American Inc. – Publicly held parent corporation of

Defendant R.J. Reynolds Tobacco Company

132. R.J. Reynolds Tobacco Company – Defendant

133. Ruiz, Maria Helena – Counsel for former Defendants Liggett Group,

LLC and Vector Group, Ltd.

134. Sankar, Stephanie S. – Counsel for Defendant Philip Morris USA, Inc.

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135. Sastre, Hildy M. –Counsel for Defendant Philip Morris USA, Inc.

136. Schaefer, Tina M. – Counsel for former Defendant Lorillard Tobacco

Company

137. Schlesinger Law Offices, P.A. – Amicus Curiae

138. Searcy Denney Scarola Barnhart & Shipley, P.A. – Amicus Curiae

139. Sears, Connor J. – Counsel for Defendant Philip Morris USA, Inc.

140. Sexton, Terrence J. – Counsel for Defendant Philip Morris USA, Inc.

141. Shook Hardy & Bacon, LLP – Counsel for Defendant Philip Morris

USA, Inc.

142. Smith, Gambrell & Russell, LLP – Counsel for Defendant Philip

Morris USA, Inc.

143. Sprie, Jr., Ingo W. – Counsel for Defendant Philip Morris USA, Inc.

144. Stoever, Jr., Thomas W. – Counsel for Defendant Philip Morris USA,

Inc.

145. Sullivan, Thomas C. - Counsel for Defendant R.J. Reynolds Tobacco

Company

146. Swerdloff, Nicolas – Counsel for former Defendant Lorillard Tobacco

Company

147. Tayrani, Amir C. – Counsel for Defendant Philip Morris USA, Inc.

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148. Tedder, Gay – Counsel for former Defendant Lorillard Tobacco

Company

149. Tepikian, Bruce R. – Counsel for Defendant Philip Morris USA, Inc.

150. Terrell Hogan Yegelwel, P.A. – Amicus Curiae

151. The Alvarez Law Firm – Amicus Curiae

152. The Ferraro Law Firm – Amicus Curiae

153. The Mills Firm, P.A. – Amicus Curiae

154. The Tobacco Institute, Inc. – Former Defendant

155. The Wilner Firm – Counsel for Plaintiff

156. Toomey, Joel B. – United States Magistrate Judge for the Middle

District

157. Trop Law Group, P.A. – Amicus Curiae

158. Tye, Michael S. – Counsel for Defendant Philip Morris USA, Inc.

159. Vaka Law Group – Amicus Curiae

160. Vector Group, Ltd. – Former Defendant

161. Walker, John M. – Counsel for Defendant R.J. Reynolds Tobacco

Company

162. Warren, Edward I. – Counsel for Plaintiff

163. Weiner, Daniel H. – Counsel for former Defendant Lorillard Tobacco

Company

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164. Wernick, Aviva L. – Counsel for former Defendant Lorillard Tobacco

Company

165. The Whittemore Law Group, P.A. – Amicus Curiae

166. Wiggins Childs Pantazis Fisher & Goldfarb, LLC – Amicus Curiae

167. William, Cecily C. – Counsel for former Defendant Lorillard Tobacco

Company

168. Williams, Jack – Counsel for Defendant R.J. Reynolds Tobacco

Company

169. Wilner, Norwood – Counsel for Plaintiff

170. Yarber, John F. – Counsel for Defendant R.J. Reynolds Tobacco

Company

171. Yarbrough, Jeffrey Alan – Counsel for Defendant R.J. Reynolds

Tobacco Company

172. Zack, Stephen N. – Counsel for Defendant Philip Morris USA, Inc.

Dated: May 4, 2015 /s/ John S. Mills John S. Mills

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF CITATIONS ......................................................................................... ii

RULE 35-5(c) CERTIFICATE ................................................................................ vi

EXPLANATION OF RECORD CITATIONS ....................................................... vii

STATEMENT OF THE ISSUE WARRANTING REVIEW .................................... 1

STATEMENT OF FACTS ........................................................................................ 2

ARGUMENT AND AUTHORITIES ........................................................................ 7

I. The Premise of the Panel’s Opinion – That the Engle Findings

Apply to All Cigarettes – Is Mistaken. .................................................. 9

II. The Panel’s Adoption of the Defendants’ Preemption Defense

Conflicts with This Court’s Approval of the Res Judicata Effect

of These Findings in Walker. ..............................................................11

CONCLUSION ........................................................................................................15

CERTIFICATE OF SERVICE ................................................................................16

i


TABLE OF CITATIONS

* Blue Cross & Blue Shield of Md., Inc. v. Weiner,

868 F.2d 1550 (11th Cir. 1989) ................................................................vi, 14

Bd. of Trs. of Carpenters Pension Trust Fund for N. Cal. v. Reyes,

688 F.2d 671 (9th Cir. 1982) ......................................................................... 14

Brown v. R.J. Reynolds Tobacco Co.,

611 F.3d 1324 (11th Cir. 2010) ....................................................................... 7

Brown v. United States,

748 F.3d 1045 (11th Cir. 2014) ....................................................................... 9

Cohen v. Office Depot, Inc.,

204 F.3d 1069 (11th Cir. 2000) ....................................................................... 8

* Community State Bank v. Strong,

651 F.3d 1241 (11th Cir. 2011) ............................................................vi, 8, 15

* Engle v. Liggett Group, Inc.,

945 So. 2d 1246 (Fla. 2006) ......................................................... vii, 6, 13, 14

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 120 S. Ct. 1291 (2000) ............................................................. 6

Hess v. Philip Morris USA, Inc.,

No. SC12-2153, 2015 WL 1472319 (Fla. Apr. 2, 2015) ............................... 13

ii


Liggett Grp., Inc. v. Engle,

853 So. 2d 434 (Fla. 3d Dist. Ct. App. 2003) ............................................ 6, 14

Matsushita Elec. Indus. Co. v. Epstein,

516 U.S. 367, 116 S. Ct. 873 (1996) ............................................................. 15

Philip Morris USA Inc. v. Douglas,

134 S. Ct. 332 (2013) ....................................................................................... 7

* Philip Morris USA, Inc. v. Douglas,

110 So. 3d 419 (Fla. 2013) ........................................................... vii, 7, 10, 13

Philip Morris USA, Inc. v. Douglas,

83 So. 3d 1002 (Fla. 2d Dist. Ct. App. 2012) .................................................. 7

R.J. Reynolds Tobacco Co. v. Campbell,

132 S. Ct. 1795 (2012) ..................................................................................... 7

R.J. Reynolds Tobacco Co. v. Clay,

133 S. Ct. 650 (2012) ....................................................................................... 7

R.J. Reynolds Tobacco Co. v. Engle,

552 U.S. 941, 128 S. Ct. 96 (2007) ................................................................. 7

R.J. Reynolds Tobacco Co. v. Gray,

132 S. Ct. 1810 (2012) ..................................................................................... 7

R.J. Reynolds Tobacco Co. v. Hall,

132 S. Ct. 1795 (2012) ..................................................................................... 7

iii


R.J. Reynolds Tobacco Co. v. Martin,

132 S. Ct. 1794 (2012) ..................................................................................... 7

S. Pac. R. Co. v. United States,

168 U.S. 1, 18 S. Ct. 18 (1897) ..................................................................... 12

San Remo Hotel, L.P. v. City & County of San Francisco, Cal.,

545 U.S. 323, 125 S. Ct. 2491 (2005) ........................................................... 12

Soffer v. R.J. Reynolds Tobacco Co.,

106 So. 3d 456 (Fla. 1st Dist. Ct. App. 2012) .............................................. vii

Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 65 S. Ct. 152 (1944) ................................................................. 9

Tippitt v. Reliance Standard Life Ins. Co.,

457 F.3d 1227 (11th Cir. 2006) ....................................................................... 8

Town of Deerfield, N.Y. v. F.C.C.,

992 F.2d 420 (2d Cir. 1993) .......................................................................... 14

Waggoner v. R.J. Reynolds Tobacco Co.,

835 F. Supp. 2d 1244 (M.D. Fla. 2011) .......................................................... 7

* Walker v. R.J. Reynolds Tobacco Co.,

734 F.3d 1278 (11th Cir. 2013) ....................................................... vi, 1, 7, 13

Walker v. R.J. Reynolds Tobacco Co.,

No. 12-13500 (Order of June 11, 2013) ....................................................... vii

iv


Weiner v. Blue Cross of Md., Inc.,

925 F.2d 81 (4th Cir. 1991) ........................................................................... 14

STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES OF COURT

Public Health Cigarette Smoking Act,

Pub. L. No. 91-222, § 5(b), 84 Stat. 87 (codified at 15 U.S.C. § 1334(b)) ..... 3

21 U.S.C. § 387p ...................................................................................................... 11

SECONDARY SOURCES

http://www.cigreviews.com/find-by-brand .............................................................. 10

http://www.revenue.nebraska.gov/cig/manufacturer.html ........................................ 2

v


RULE 35-5(c) CERTIFICATE

We express a belief, based on a reasoned and studied professional judgment,

that the panel decision is contrary to the following decision(s) of the Supreme

Court of the United States or the precedents of this circuit and that consideration

by the full court is necessary to secure and maintain uniformity of decisions in this

court: Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013); Blue

Cross & Blue Shield of Md., Inc. v. Weiner, 868 F.2d 1550 (11th Cir. 1989); and

Community State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011).

Dated: May 4, 2015 /s/ John S. Mills

John S. Mills

/s/ Kenneth S. Canfield Kenneth S. Canfield

/s/ Steven L. Brannock Steven L. Brannock

vi


EXPLANATION OF RECORD CITATIONS

This amicus brief cites and quotes from filings and transcripts from the

original class litigation culminating in Engle v. Liggett Group, Inc., 945 So. 2d

1246 (Fla. 2006). These materials are on file in the district court on DVD, and they

are part and parcel of Graham’s case. Engle “[p]rogeny plaintiffs wear the same

shoes, so to speak, as the plaintiffs in Engle because they are the plaintiffs from

Engle” and they “must accept the status and procedural posture of the Engle

litigation as they find it.” Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 460

(Fla. 1st Dist. Ct. App. 2012); see also Philip Morris USA, Inc. v. Douglas, 110

So. 3d 419, 432 (Fla. 2013) (explaining that the “decision in Engle allowed

members of the decertified class to pick up litigation of the approved six causes of

action right where the class left off”).

Should the Court desire, the amici can provide either the complete DVD

(which contains a hyperlinked index to the hundreds of thousands of pages of

filings, including the complete class trial transcripts) or an addenda to this brief

that contains the portions cited herein, as the Court accepted in Walker v. R.J.

Reynolds Tobacco Co., No. 12-13500 (Order of June 11, 2013).

vii


STATEMENT OF THE ISSUE WARRANTING REVIEW

Rehearing or en banc review is warranted because the Defendants led the

panel down the garden path to make a proclamation of constitutional law – that no

State may choose to ban cigarettes on a local level because Congress elected not to

do so on a national level – on an issue that is not presented by the facts of this case

and, in any event, is barred by res judicata. This brief sets the record straight so

that the question of whether States are powerless to protect their citizens from the

leading cause of death in America can be decided only when truly necessary.

Even if Graham were wrong and the panel correct that federal law preempts

States from imposing liability for selling cigarettes, that does not mean that claims

based on the Engle strict liability and negligence findings are preempted. The

Engle findings do not apply to all cigarettes; they are based on these defendants’

surreptitious decision to manipulate the nicotine in their cigarettes to ensure

addiction instead of using available designs that do not addict. Regardless, the

preemption defense was finally decided against these defendants in Engle, and the

panel was barred from revisiting that decision not only under the holding in Walker

v. R.J. Reynolds Tobacco Co., 734 F.3d 1278, 1288 (11th Cir. 2013), that these

defendants have “exhausted [their] opportunities to contest the common liability

findings of the jury in Phase I,” but also under black-letter preclusion law

recognized by this Court and the Supreme Court of the United States.

1


STATEMENT OF FACTS

The amici first provide what was missing from the parties’ briefs – a correct

recitation of the history of the class proceedings relating to the Engle defendants’

preemption defense. Graham failed to correct the defendants when they misled the

panel by claiming that “the class asserted broad allegations that all cigarettes are

defective, or that the sale of all cigarettes is negligent.” Def. Br. at 4. While the

class did allege that cigarettes cause cancer and they would have lost had they not

proven that, the class did not seek to impose liability based on this fact alone.

The strict liability and negligence counts applied solely to the tobacco

companies named as defendants, whom the complaint described as cigarette

manufacturers that “manipulated the level of nicotine in their tobacco products so

as to make these products addictive.” Compl. at 8-9. One of these defendants,

Florida’s Dosal Tobacco Corp., was dropped before the verdict, and the complaint

made no allegations regarding cigarettes manufactured by other manufacturers,

such as Nat Sherman, Inc., and Santa Fe Natural Tobacco Co., Inc. See generally

http://www.revenue.nebraska.gov/cig/manufacturer.html (listing manufacturers,

including over a dozen not named as defendants in Engle).

These counts alleged that the defendants manipulated nicotine levels in their

cigarettes to ensure addiction, failed to use available safer alternative designs, and

failed to warn consumers of what they had done. Compl. at 36-37, 50-51. The

2


defendants’ answers claimed that the nicotine in their cigarettes occurred naturally

and not through manipulation and that their cigarettes were not addicting, and they

asserted federal preemption as an affirmative defense. E.g., RJR Answer 6, 19; PM

Answer 5, 16.

This preemption defense was thoroughly argued before and during the trial,

both in hearings dedicated to the topic and through objections to evidence and

argument offered by the class. E.g., Tr. 96:10,736-63; 149:16,400-01, 170:18,708-

21, 253:27,957-58, 421:42,393-94. At trial, they directed their arguments primarily

to the extent the class challenged their failure to warn of the dangers of smoking

after the July 1, 1969, effective date of the Public Health Cigarette Smoking Act,

Pub. L. No. 91-222, § 5(b), 84 Stat. 87 (codified at 15 U.S.C. § 1334(b)). The trial

court sustained several preemption objections and overruled others. At the

defendants’ request, it ultimately instructed the jury:

Preemption is a doctrine of federal law that limits the claims the plaintiffs can make in this case. You need to understand this limitation in order to perform your duty as jurors.

Tr. 351:37,569. After explaining the requirements of federal labelling law, the

court warned that the jury could

not base any finding of liability on a determination that after July 1 of 1969, one or more of these defendants should have included additional or more clearly stated warnings on their cigarette packages or in their advertisements. However, federal law does not limit the liability of any defendant against claims based on negligence [or] strict liability ….

3


Tr. 351:37,569-70.

The defendants made relatively few arguments before or during trial that the

strict liability and negligence claims were preempted as an effective ban on the sale

of cigarettes because they well understood the claims did not go that far. For

example, they argued to the jury, without objection, that the case was not about

whether cigarettes themselves as a product category are wrong or unethical or immoral or against religion, or whatever other words were used. That’s just not what the law requires you to do. That’s not what the case is about. The case isn’t a referendum on smoking. Just not – that’s not what it’s about.

Tr. 349:37,361; see also Tr. 542:53,913 (“[U]nder the theories of this case, the

harm is not merely caused by actually selling cigarettes.”); Tr. 578:57,569 (“It is

an undeniable fact that no matter what is decided in this courtroom, cigarettes will

be available on the market in this country for the foreseeable future.”).

The trial court instructed the jury that the class had to satisfy one of two tests

to prevail on their strict liability claims – that each defendant’s cigarettes “fail[ed]

to perform as safely as an ordinary consumer would expect when used as intended”

or that “the risk of danger in the design outweighs the benefits.” Tr. 351:37,571. It

instructed that to prevail on the negligence claim, the class had to prove that each

defendant was “negligent in designing, manufacturing, testing, or marketing of

cigarettes [and] prior to July 1, 1969 in failing to warn smokers of the health risks

of smoking or the addictiveness of smoking.” Tr. 351:37,577.

4


The jury was asked only two questions applying to cigarettes generally. The

first asked, “Does smoking cigarettes cause one or more of the following diseases

or medical conditions?” followed by yes/no blanks for 23 different diseases. Phase

I Verdict 1-2. The jury answered yes for all but three. The second question asked,

“Are cigarettes that contain nicotine addictive or dependence producing?” and the

jury answered yes. Id. at 2. But those answers did not establish liability. Instead,

the strict liability question asked whether each defendant had “place[d] cigarettes

on the market that were defective and unreasonably dangerous.” Id. at 2. The jury

answered yes for each defendant separately. Id. at 2-3. Far from suggesting that all

cigarette manufacturers are negligent, the negligence question expressly posited

the existence of a non-negligent manufacturer, asking whether each defendant had

“failed to exercise the degree of care which a reasonable cigarette manufacturer

would exercise under like circumstances.” Id. at 10. The jury was provided yes/no

answer blanks for each defendant and for time periods before, after, and both

before and after July 1, 1969, and it answered yes for all defendants and all time

periods. Id. at 10-11.

The defendants unsuccessfully sought a new trial based on preemption,

among other arguments. Phase I Motion for New Trial 69-86; see also Phase II-B

Motion for New Trial 33; accord id. at 31 & n.15, 76-77 (contending that

comments by class counsel were “tantamount to suggesting that cigarettes should

5


not be sold because they present health risks,” a position they argued was “contrary

to the framework for the sale of cigarettes established by Congress, which allows

the sale of cigarettes”).

The intermediate appellate court reversed the judgment in favor of the class

on a range of issues, including the exact preemption defense adopted by the panel

here, concluding that “Congress has foreclosed the removal of tobacco products

from the market” and therefore “[f]ederal law preempts claims that selling

cigarettes is tortious or otherwise improper.” Liggett Group, Inc. v. Engle, 853

So. 2d 434, 460 & n.35 (Fla. 3d Dist. Ct. App. 2003) (citing FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291 (2000)).

While the panel quotes favorably from that decision (Opinion 39-40), the

Supreme Court of Florida quashed it, not only holding that the strict liability and

negligence findings (and others not relevant here) would have res judicata effect,

but also directly rejecting the preemption argument:

Although compliance with the federal warnings preempted any claim based on failure to warn, it did not eliminate the other causes of action that the jury had to consider in Phase I.

Engle, 945 So. 2d at 1273.

The defendants sought certiorari on preemption grounds, acknowledging that

if the Supreme Court of the United States denied certiorari on the federal

preemption issue, that would “subject petitioners to adverse judgments” in progeny

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actions. Cert. Pet. 30. The Court promptly denied review. R.J. Reynolds Tobacco

Co. v. Engle, 552 U.S. 941, 128 S. Ct. 96 (2007).

Despite their admission to the Supreme Court, the defendants nonetheless

sought to avoid adverse judgments in progeny actions by raising the same

preemption argument adopted by the panel in the briefs they filed that led to many

of the opinions cited by the panel that considered their challenges to the res

judicata effect of the Engle findings on strict liability and negligence. Walker, 734

F.3d 1278; Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010);

Waggoner v. R.J. Reynolds Tobacco Co., 835 F. Supp. 2d 1244 (M.D. Fla. 2011);

Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013); Philip Morris

USA, Inc. v. Douglas, 83 So. 3d 1002 (Fla. 2d Dist. Ct. App. 2012). Every court,

including this one, rejected this preemption argument without comment.1

ARGUMENT AND AUTHORITIES

Whether the panel’s application of preemption law was correct is beyond the

scope of this amicus brief. Even if it were correct, rehearing (whether by the panel

or en banc) is still warranted because the panel misapprehended both the basis for

1 The defendants also raised this same preemption argument in numerous Engle progeny certiorari petitions, all of which have been denied. E.g., Philip Morris USA Inc. v. Douglas, 134 S. Ct. 332 (2013); R.J. Reynolds Tobacco Co. v. Clay, 133 S. Ct. 650 (2012); R.J. Reynolds Tobacco Co. v. Gray, 132 S. Ct. 1810 (2012); R.J. Reynolds Tobacco Co. v. Hall, 132 S. Ct. 1795 (2012); R.J. Reynolds Tobacco Co. v. Campbell, 132 S. Ct. 1795 (2012); R.J. Reynolds Tobacco Co. v. Martin, 132 S. Ct. 1794 (2012).

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Engle progeny strict liability and negligence claims, which do not apply to all

cigarettes, and the res judicata effect of the Engle findings that this Court mandated

in Walker, which would bar the preemption defense even if it had not been

adjudicated against the defendants (though it was).

Before developing these points, amici acknowledge that their criticisms of

the panel’s opinion are directed to points that the parties briefed either sparsely (the

Engle litigation history related to preemption) or not at all (the res judicata

argument). Rehearing is warranted, nonetheless, because a panel decision will bind

future panels on an issue even if contrary arguments were not raised by the parties.

E.g., Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir.

2006). The prior panel rule is not “dependent upon the skill of the attorneys …

involved with the prior decision,” and the prior panel’s “holding is the law of this

Circuit regardless of what might have happened had other arguments been made to

the [prior] panel.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.

2000). Moreover, even when the parties’ briefs do not address the issue, “this

Court may consider the preclusive effect of a prior judgment sua sponte.”

Community State Bank v. Strong, 651 F.3d 1241, 1261 n.17 (11th Cir. 2011).

Deciding the issue raised in this appeal based on amici’s arguments would

also serve the first rule of judicial restraint, which the parties’ briefs led this panel

to unknowingly violate:

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If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 154

(1944), quoted with approval in, e.g., Brown v. United States, 748 F.3d 1045, 1049

(11th Cir. 2014) (Tjoflat, J.).

I. THE PREMISE OF THE PANEL’S OPINION – THAT THE ENGLE FINDINGS APPLY TO ALL CIGARETTES – IS MISTAKEN.

The panel’s opinion could not be more clear that it rests entirely on the

conclusion that the Engle strict liability and negligence findings apply to “all

cigarettes,” an assertion the panel repeated again and again. E.g., Opinion 38, 43,

48, 49. Perhaps misled by Graham’s failure to correct the defendants’

mischaracterization of these claims, the panel erred in concluding that the Engle

findings at issue are “premised on the theory that all cigarettes are inherently

defective and that every cigarette sale is an inherently negligent act.” Id. at 49.

If that were the case, the jury’s answer to the first question (cigarettes cause

disease) would have been the basis for liability. But it was not. True, this fact was

necessary to the class’s claims, but it no more established liability here than the

fact that car wrecks cause injuries would establish a manufacturer’s liability in an

auto products liability case. The basis for liability asserted in the strict liability and

negligence claims was that these specific manufacturers designed their

cigarettes by manipulating the nicotine to ensure addiction, failed to warn their

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customers of this manipulation before 1969, and declined to use safer available

alternative designs that would not addict. By the very definition of the class, these

smokers did not get cancer merely because they smoked some cigarettes; their

injuries are caused by smoking multiple packs of cigarettes a day for decades as a

result of addiction, not free choice. See Douglas, 110 So. 3d at 431-32 (“[P]roving

class membership often hinges on the contested issue of whether the plaintiff

smoked cigarettes because of addiction or for some other reason (like the reasons

of stress relief, enjoyment of cigarettes, and weight control argued below).”).

In short, the defendants are liable to class members because they became

addicted, which led them to smoke enough cigarettes over a long enough period of

time to get cancer, and they became addicted as a result of the unreasonably

dangerous design of these manufacturers’ cigarettes and by these manufacturers’

negligence. Had these defendants instead sold cigarettes based on available

alternative designs that were not manipulated to ensure addiction, the plaintiffs

would have avoided injury or at least would not be entitled to the res judicata effect

of the Engle findings.

While the jury answered the liability questions the same for all defendants

still in the case by the time of trial, that was not inevitable as the jury instructions

demonstrate. It simply shows that class counsel chose these particular defendants

wisely based on what they could prove. The findings do not suggest, for example,

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that top-25 selling brands of cigarettes like Dosal’s 305’s, Santa Fe’s American

Spirit, or Nat Sherman’s New York Cut would subject those manufacturers to

liability. http://www.cigreviews.com/find-by-brand.

The panel also overlooked the fact that the Engle findings expressly applied

to time periods before the July 1, 1969, effective date of Congress’s requirement

that cigarette labels warn that smoking is dangerous. This was the very legislation

from which the panel took an express legislative finding that it construed to imply

the political judgment that Congress did not want to remove cigarettes from the

national market and expanded that into an implied finding that Congress intended

to prevent each State from making its own judgment on such a controversial topic.

Contra 21 U.S.C. § 387p(a)(1)) (preserving the right of states to “prohibit[] the

sale … of tobacco products by individuals of any age”). Most class members

became addicted well before 1969 (indeed, most became addicted by the 1950s).

Thus, even if the panel’s decision were correct as a matter of preemption law, the

error below was the failure to instruct the jury that it could only award damages on

the strict liability and negligence counts for defense conduct before 1969.

II. THE PANEL’S ADOPTION OF THE DEFENDANTS’ PREEMPTION DEFENSE CONFLICTS WITH THIS COURT’S APPROVAL OF THE RES JUDICATA EFFECT OF THESE FINDINGS IN WALKER.

Although Graham failed to articulate res judicata as a bar to the preemption

defense, he did contend that it is too late to revive the issue. The panel derided this

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suggestion as a “too-big-to-fail” argument to which the Constitution “lends [no]

credence.” Opinion 49. That may be, but the panel overlooked that the full faith

and credit statute compels respect for the finality of Engle:

The general rule implemented by the full faith and credit statute – that parties should not be permitted to relitigate issues that have been resolved by courts of competent jurisdiction – predates the Republic. It “has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it, an end could never be put to litigation.” This Court has explained that the rule

is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them.

San Remo Hotel, L.P. v. City & County of San Francisco, Cal., 545 U.S. 323, 336-

37, 125 S. Ct. 2491, 2501 (2005) (footnote and citation omitted) (quoting S. Pac.

R. Co. v. United States, 168 U.S. 1, 49, 18 S. Ct. 18 (1897)).

In Douglas, the Florida Supreme Court reaffirmed that Engle finally

adjudicated the “defendants’ common liability” on the conduct elements of the

strict liability and negligence claims, including every class-wide defense that either

was raised or could properly have been raised:

res judicata prevents the same parties from relitigating the same cause of action in a second lawsuit and “is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to

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every other matter which might with propriety have been litigated and determined in that action.” …. Engle defendants are precluded from arguing in individual actions that they did not engage in conduct sufficient to subject them to liability.

110 So. 3d at 432-33 (quoting Engle, 945 So. 2d at 1259); see also Hess v. Philip

Morris USA, Inc., No. SC12-2153, 2015 WL 1472319 (Fla. Apr. 2, 2015) (holding

that the res judicata effect of the Engle findings bar the statute of repose defense

because it goes to the defendants’ conduct, not the plaintiff’s reliance).

In Walker, this Court decided that this decision “is entitled to full faith and

credit in federal court” because the defendants “had a full and fair opportunity to

be heard in the Florida class action and the application of res judicata under Florida

law does not cause an arbitrary deprivation of property.” 734 F.3d at 1279-80.

Applying Douglas, it held, “R.J. Reynolds has exhausted its opportunities to

contest the common liability findings of the jury in Phase I.” Id. at 1288. The

panel’s decision to give the defendants another opportunity to contest these

findings – this time under a preemption argument – conflicts with Walker’s express

holding every bit as much as it conflicts with the silent rejection of the same

preemption argument raised in Reynolds’ briefs and on rehearing in Walker.

Whether one looks at this as a question of claim preclusion that does not

require a prior actual adjudication, as Douglas requires with Walker’s blessing, or

as a question of issue preclusion requiring a prior actual adjudication, as the

defendants unsuccessfully argued in Walker, the preemption defense is barred.

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While the defendants initially succeeded in the state intermediate court on the same

obstacle preemption defense credited by the panel here, Liggett Group, Inc., 853

So. 2d at 460, the Florida Supreme Court quashed that decision and held the claims

not preempted. Engle, 945 So. 2d at 1273. Once the United States Supreme Court

denied certiorari, that was the end. The panel erred in reviving this issue.

A state court’s final determination of an issue, even a purely federal issue

like preemption, precludes federal courts from revisiting the issue between the

parties. E.g., Town of Deerfield, N.Y. v. F.C.C., 992 F.2d 420, 428-29 (2d Cir.

1993); Bd. of Trs. of Carpenters Pension Trust Fund for N. Cal. v. Reyes, 688 F.2d

671, 673 (9th Cir. 1982). This Court has held that federal courts may not entertain

an argument that a state court judgment is void because the claims it adjudicated

were preempted, so long as the defendant had an opportunity to litigate the

preemption issue in state court – even if the state court did not actually adjudicate

the defense and even when complete preemption, which would deprive the state

court of jurisdiction altogether, is at issue. Blue Cross & Blue Shield of Md., Inc. v.

Weiner, 868 F.2d 1550, 1554-56 (11th Cir. 1989).

While the procedural posture of Weiner (state court loser bringing a federal

action) and this case (state court loser defending a federal action) implicate

doctrines with different names (Rooker Feldman in Weiner, preclusion here), that

is a distinction without a difference for these purposes. See Weiner v. Blue Cross of

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Md., Inc., 925 F.2d 81, 83 (4th Cir. 1991) (affording res judicata effect to the same

state court judgment because the state court had jurisdiction to determine

preemption and noting that this Court did the same thing as a matter of abstention).

This Court has also held that a state court determination of a federal issue

that would have preclusive effect in the subject state binds federal courts in actions

between the same parties involving the same issue. Strong, 651 F.3d at 1262-71.

And the Supreme Court has held that when a class action in state court finally

resolves even “exclusively federal claims,” federal courts are required to give that

determination preclusive effect, so long as (1) courts in that state would do so and

(2) the Full Faith and Credit Act applies. Matsushita Elec. Indus. Co. v. Epstein,

516 U.S. 367, 373-75, 116 S. Ct. 873, 877-78 (1996).

This Court having held in Walker that both elements apply to the Engle

findings and that the defendants had a full and fair opportunity to be heard in state

court, the panel’s decision to entertain the preemption argument conflicts with

Walker, Weiner, Strong, and Epstein.

CONCLUSION

For the foregoing reasons, if the panel denies rehearing, the Court should

vacate the panel’s opinion and order en banc briefing to address not just the merits

of the preemption argument, but also whether the Engle findings apply to all

cigarettes and whether the preemption defense is barred by res judicata.

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/s/ Steven L. Brannock Steven L. Brannock Celene Harrell Humphries Philip A. Padovano Maegen P. Luka Brannock & Humphries 100 South Ashley Drive, Suite 1130 Tampa, Florida 33602 (813) 223-4300 [email protected]

Respectfully submitted, /s/ John S. Mills John S. Mills Courtney Brewer The Mills Firm, P.A. 203 North Gadsden Street, Suite 1A Tallahassee, Florida 32301 (850) 765-0897 [email protected] [email protected] /s/ Kenneth S. Canfield Kenneth S. Canfield Doffermyre Shields Canfield & Knowles, LLC 1355 Peachtree Street, Suite 1600 Atlanta, Georgia 30309 (404) 881-8900 [email protected]

Attorneys for Amici Curiae Engle State Plaintiffs’ Firms

CERTIFICATE OF SERVICE

I hereby certify that on May 4, 2015, I had the foregoing document

electronically filed using the Court’s Appellate PACER system, which will

automatically send electronic notification constituting service of the foregoing to

all counsel of record.

/s/ John S. Mills Attorney

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