Cross-posted at WLF’s Forbes.com contributor page
In Walker v. R.J. Reynolds Tobacco Co., the U.S. Court of Appeals for the Eleventh Circuit has ruled that even though Florida state courts failed to require plaintiffs to establish from the trial record that a previously tried issue was actually decided in their favor, it would not intervene. The tobacco defendants had argued that the Due Process Clause of the U.S. Constitution bars state courts from departing from their normal procedural rules in such a radical manner. They expected the appeals court to vindicate its earlier ruling in Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010).
Walker arises in the aftermath of an abortive effort to try all product liability claims against tobacco manufacturers in a single class-action trial. The trial court initially certified a class consisting of all smokers nationwide who had suffered an illness due to smoking. The class was later limited to Florida smokers. Early phases of the trial had gone on for more than a year when an appeal of the class certification order finally reached the Florida Supreme Court.
The Court ruled in its 2006 Engle decision that continuing the case as a class action was “not feasible because individualized issues such as legal causation, comparative fault, and damages predominate.” In other words, the Court did not believe that a single jury could make meaningful factual determinations that would be applicable to each of the thousands of class members. But the Court left open the possibility that some of the factual findings already made by the class action jury could be used in the subsequent lawsuits brought by individual smokers.
The lower Florida courts took that suggestion and ran with it. They noted that the class action jury had made a factual finding that each of the major tobacco companies sold cigarettes that were defectively designed and marketed. They then interpreted that finding to mean that every cigarette sold by the defendants was defective, even though the evidence shows that the jury was never asked to specify which brands of cigarettes were defective or which of the class plaintiffs’ numerous alternative liability theories it accepted as having been proven.
Accordingly, the lower Florida courts applied the doctrine of “issue preclusion” to subsequent suits filed by each individual smoker, preventing tobacco companies from denying that the specific products sold to each smoker were defective. By stacking the deck against tobacco defendants in this manner, the small number of “Engle progeny” cases decided to date have resulted in hundreds of millions of dollars in adverse judgments, with thousands of other Engle progeny cases still awaiting trial.
Back in 2010, it seemed the Eleventh Circuit’s ruling in Brown v. R.J.Reynolds might prevent the multi-billion-dollar Engle juggernaut from running roughshod over cigarette manufacturers and their due process rights. The appeals court rejected the “issue preclusion” approach of plaintiffs’ attorneys and made clear that only very broad issues decided by the jury should have any bearing on further cases. But Florida courts ultimately ignored that ruling, and last week the Eleventh Circuit let them get away with it, concluding that those state court decisions did not arbitrarily deprive R.J. Reynolds of its property without due process of law.
The tobacco defendants have indicated that they will seek en banc review.