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Appeals Court Limits Use of Jury Findings by Tobacco Plaintiffs 

The Eleventh Circuit Court of Appeals issued a significant tobacco-related decision on Thursday, ruling that jury findings from a previous tobacco lawsuit can be applied to new cases, but only if the plaintiffs prove that they apply.

The ruling concerned factual findings from Engle v. RJ Reynolds, a Florida class action brought on behalf of consumers who smoked before warning labels were required on cigarette packages. In that case, the jury concluded that the cigarettes smoked by the plaintiffs were defective and addictive, and that the manufacturer failed to properly disclose the danger of smoking to consumers.

The Florida Supreme Court eventually decertified the Engle class but allowed individual plaintiffs to file suit by January 2008. As a result, nearly 4,000 such cases are now working their way through Florida federal courts.

In its decision, the court said that the findings “must be given the same preclusive effect in this federal court case that they would be given if the case were in state court.”

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• BROWN v. R.J. REYNOLDS TOBACCO COMPANY 

The bottom line, then, is that the Phase I approved findings may be given effect to the full extent of, but no farther than, what the jury found. The disagreement is about what the jury actually did find. The defendants, taking a narrow view, insist that the only facts found by the jury are those framed by the specific factual issue set out in the questions posed to them on the verdict form. The plaintiffs, by contrast, take a broader view of what facts the jury decided, arguing that the language of the questions, and hence the jury’s answers, can and should be fleshed out using the record as a whole and apparently by going outside the record.

For example, Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes,” for every time period for every defendant except Brooke Group, Ltd., Inc. 8 Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type

8 The jury found that Brooke Group, Ltd., Inc., sold cigarettes that were defective and unreasonably dangerous after July 1, 1974, but not before that date. of cigarette sold by a defendant during the relevant time period was defective and unreasonably dangerous. . . .

We leave it to the district court to apply Florida law as we have outlined it and decide in the first instance precisely what facts are established when preclusive effect is given to the approved findings. . . .

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Ruling Gives Tobacco Lawsuits New Life  

The 11th Circuit Court of Appeals on Thursday reversed a lower court decision and will allow a previous jury's finding against several tobacco companies be allowed in consideration of a pending class-action suit involving more than 3,800 Florida plaintiffs.

Among the prior jury findings were those that said tobacco defendants were negligent and made a defective product.

The individual suits against Altria Group Inc.) and other tobacco companies, including Reynolds American Inc., came up after a court ruling several years ago that decertified the class-action case, but allowed individual cases within a stipulated period time.

Separately, there are several thousand cases against the tobacco companies pending in state courts in Florida.

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• Federal court rules in Fla. smoker cases 

"On balance, it's less helpful to the plaintiffs," said University of Richmond law professor Carl W. Tobias.

The key issue that the ruling addressed was what a Florida Supreme Court ruling in 2006 meant when it quashed a $145 billion class action lawsuit against the tobacco industry in the so-called Engle case. . . .

The smokers and families argued the findings simply should be accepted as applying to their cases, as is the practice in similar cases in the Florida state courts.

"We leave it to the district court to . . . decide in the first instance precisely what facts are established when preclusive effect is given to the approved findings," the appeals court ruled.

It said the lower courts decide the exact scope of the factual issues in the findings -- whether, for instance, a finding that the companies made defective and dangerous products over several years meant all cigarettes are defective or, if not, whether a specific smoker's brand was defective.

Until the lower courts decide that, it is too early to say whether the findings prove any smoker's or family's claim, the appeals court said.

This finding overturns a lower court ruling that the findings cannot be used to preclude the smokers' and families' need to establish any element of their claims.

The issue had put federal cases by former class action participants on ice. . . .

Edward L. Sweda, senior attorney for the Tobacco Control Resource Center at Northeastern University in Boston, described yesterday's ruling as favorable for plaintiffs.

"It does provide a green light to go forward for the plaintiffs in federal court," he said. "They have the opportunity to show that the jury's findings [in the class action case] can be and should be applied to their own cases in federal court. The plaintiffs are in much better position than they were if the circuit court had upheld the order from the district court."

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11th Circuit's tobacco ruling leaves both sides claiming victory in Jacksonville cases  

"We believe that this is a victory for the thousands of injured smokers who have been denied their day in court for over a decade," plaintiff's attorney Woody Wilner of Wilner Hartley & Metcalf in Jacksonville wrote in a news release. He said the 11th Circuit upheld the right of litigants to rely on the previous jury findings and rulings by the Florida Supreme Court.

But tobacco giant Philip Morris said in its own release that the ruling actually restricts the plaintiffs' use of the Engle jury's conclusions.

"We are pleased that the appellate court has rejected arguments by plaintiffs that they have an automatic and unlimited right to use the findings," the release says. "In the court's own words, plaintiffs have a 'considerable task' to show with 'reasonable certainty' that the facts they want to establish were 'actually decided' by the prior jury."

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• Tobacco suit rules change 

The biggest legal storm hanging over the tobacco industry -- about 8,000 smoker lawsuits in Florida -- may have begun to dissipate yesterday.

The 11th Circuit Court of Appeals ruled that plaintiffs bringing a so-called "Engle" case before a federal court will have to individually prove two pivotal elements:

• The cigarettes smoked by those involved in the case were defective;

• The manufacturer withheld information, keeping the smoker from fully understanding the potentially addictive and defective nature of the cigarettes.

The cases sprung from a decision in 2006 by the Florida Supreme Court that decertified a class-action lawsuit initially filed by Howard Engle. The 2006 ruling allowed former class members to file individual lawsuits stating that cigarettes caused their respective illnesses. . . .

Yesterday's ruling directly affects about 4,000 lawsuits that have been held up in the federal-court system.

However, analysts said it is likely to affect about 4,000 other lawsuits in the Florida court system. Eighteen of at least 20 cases that have gone to a jury were won by the plaintiffs. . . .

"The logic of this opinion supports our position that every Engle-related judgment to date against Reynolds in the Florida state courts should be reversed," said Martin Holton III, the general counsel for R.J. Reynolds Tobacco Co. Reynolds called the ruling "a watershed" decision. . . .

The Public Health Advocacy Institute viewed the ruling as removing a legal roadblock from the federal cases, giving those plaintiffs "a green light to have their cases proceed to trial."

"The plaintiffs, under today's ruling, only need to show that the jury was presented with persuasive and compelling evidence that all of the defendants' cigarettes were dangerous and unreasonably dangerous during phase 1."

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Watershed appeal in Florida case clarifies that there are no special rules for Engle progeny cases (PDF) 

The Court of Appeals for the Eleventh Circuit today clarified that the jury findings from the decertified class-action in Engle v. Liggett Group, Inc. may be used by plaintiffs in Engle progeny trials only to establish facts that were actually decided by the jury in the Engle trial.

“The logic of this opinion supports our position that every Engle-related judgment to date against R.J. Reynolds Tobacco Company in the Florida state courts should be reversed,” said Martin L. Holton III, general counsel for R.J. Reynolds Tobacco.

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R.J. Reynolds Tobacco Company Says Watershed Appeal In Florida Case Clarifies That There are No Special Rules for Engle Progeny Cases 

R.J. Reynolds Tobacco Company has issued the following statement: "Watershed appeal in Florida case clarifies that there are no special rules for Engle progeny cases."

Go to R.J. Reynolds' website, www.RJRT.com, or Reynolds American Inc.'s website, www.ReynoldsAmerican.com, to read the full release.

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Ruling means new legal hurdles for Fla. smokers 

An appeals court ruling has set new legal hurdles for 4,400 federal lawsuits pitting Florida smokers or their survivors against cigarette companies.

The 11th U.S. Circuit Court of Appeals' decision Thursday could sharply limit whether juries must accept as fact in each case that tobacco companies sold dangerous products and hid smoking risks from the public.

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Cigarette Makers Win Big At 11th Circuit 

The $145 billion Engle case against the cigarette manufacturers just keeps getting whittled down. In a decision issued today the 11th Circuit Court of Appeals said the seemingly devastating findings by the Florida jury in that case -- that cigarettes are addictive and defective, that the companies entered into agreements to hide these facts from consumers -- won't have much effect in subsequent trials.

Plaintiff lawyers had been using the Engle findings to argue res judicata when they put on individual trials in Florida courts. They were forced to try those cases one by one after a Florida appeals court disbanded the class action that represented every smoker in the state, saying the individual cases were too dissimilar to keep them bound together into one lawsuit. Later the punitive damages award was thrown out, but the Florida Supreme Court allowed the so-called Engle findings to dictate certain conclusions in those cases, making it much harder for the merchants of tobacco to defend themselves. A Florida appeals court upheld a $24 million verdict against Philip Morris in March and last year a plaintiff in Fort Lauderdale won $300 million, subsequently shaved down to $39 million.

"It will give us an opportunity finally to have a fair defense," said Stephanie Parker with Jones Day in Atlanta, who represented the cigarette companies. "We've been trying these cases with both arms tied behind our back."

The decision is only binding on the 4,000 cases pending in federal court in Florida, but presumably judges in Florida state courts will adopt its reasoning as well, Parker said. That will dramatically increase costs for plaintiff lawyers . . .

"All we know from the verdict is one cigarette made by Reynolds at some point in the universe was defective," Parker said. The rest is up to the plaintiff lawyers to prove, one case at a time.

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All we know from the [Engle] verdict is one cigarette made by Reynolds at some point in the universe was defective.
Stephanie Parker with Jones Day in Atlanta, who represented the cigarette companies before the 11th Circuit.

• Altria, Cigarette Makers Lose Appeal Affecting 4,000 Florida Lawsuits 

Altria Group Inc.’s Philip Morris USA unit and other U.S. cigarette makers lost an appeal affecting about 4,000 Florida smoker suits in federal court.

A federal appeals court in Atlanta today denied the companies’ request to block lower courts from applying a 2006 Florida Supreme Court decision they claimed deprived them of fair trials in death and injury suits filed in the state.

The companies said that a series of factual conclusions endorsed by Florida’s highest court in the 2006 “Engle” decision can’t fairly be used against them in individual smokers’ trials. The findings included those that cigarette makers conspired to hide information on smoking’s health effects and that they made false statements about their products.

The federal court said the findings “must be given the same preclusive effect in this federal court case that they would be given if the case were in state court.”

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Watershed appeal in Florida case clarifies that there are no special rules for Engle progeny cases (PDF) 

The Court of Appeals for the Eleventh Circuit today clarified that the jury findings from the decertified class-action in Engle v. Liggett Group, Inc. may be used by plaintiffs in Engle progeny trials only to establish facts that were actually decided by the jury in the Engle trial.

“The logic of this opinion supports our position that every Engle-related judgment to date against R.J. Reynolds Tobacco Company in the Florida state courts should be reversed,” said Martin L. Holton III, general counsel for R.J. Reynolds Tobacco.

The 11th Circuit is the first appellate court to issue an opinion on this question. Its ruling directly applies to over 4,400 cases pending in federal court in Florida. The same issue is at the heart of a similar number of cases pending in Florida state court, and is the subject of several appeals pending in the state system. . . .

“It is clear that the tobacco companies have been wrongfully prevented from mounting a full defense in lawsuits brought by individual Engle progeny plaintiffs in state court,” said Holton.

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• Bernice Brown v. R.J. Reynolds Tobacco Co. 

The bottom line, then, is that the Phase I approved findings may be given effect to the full extent of, but no farther than, what the jury found. The disagreement is about what the jury actually did find. The defendants, taking a narrow view, insist that the only facts found by the jury are those framed by the specific factual issue set out in the questions posed to them on the verdict form. The plaintiffs, by contrast, take a broader view of what facts the jury decided, arguing that the language of the questions, and hence the jury’s answers, can and should be fleshed out using the record as a whole and apparently by going outside the record.

For example, Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes,” for every time period for every defendant except Brooke Group, Ltd., Inc. 8 Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type

8 The jury found that Brooke Group, Ltd., Inc., sold cigarettes that were defective and unreasonably dangerous after July 1, 1974, but not before that date. of cigarette sold by a defendant during the relevant time period was defective and unreasonably dangerous. . . .

We leave it to the district court to apply Florida law as we have outlined it and decide in the first instance precisely what facts are established when preclusive effect is given to the approved findings. . . .

Cigarette Makers Ask to Block Ruling in 4,000 Cases (Update1) 

Altria Group Inc.’s Philip Morris USA unit and other U.S. cigarette makers asked a federal appeals court to block federal trial courts from applying a 2006 Florida decision they claim would deprive them of a fair trial in thousands of death and injury suits in the state.

The companies argue that a series of factual findings endorsed by the Florida Supreme Court in a 2006 decision - including that the companies sold defective products, that they conspired to hide information about the health effects of smoking and that they made false statements about their products - can’t fairly be applied in any of 4,000 cases against them in Florida federal court.

The companies claim that applying the 2006 ruling, which came in the Florida’s “Engle” tobacco class action, ‘would compromise an arbitrary deprivation of the defendants’ federal due process rights,” as a lower judge ruled in August 2008.

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Court looks at tobacco appeal in the wake of the Florida Supreme Court's ruling. 

A group of Florida smokers asked a federal appeals court Tuesday not to force each of them to prove that smoking causes illness in the thousands of individual lawsuits moving through federal court.

Such a ruling by the 11th Circuit Court of Appeals would mean that the more than 4,000 plaintiffs wouldn't need extensive -- and costly -- expert testimony to prove to each jury that their nicotine addiction caused lung cancer and other diseases.

Tobacco companies, meanwhile, asked the three-judge panel to conclude that the trials don't begin with an assumption that the industry acted with negligence and that their products were defective. Attorney Andrew Frey said that each plaintiff should be required to prove that point in court.

"That's the issue that's really before you today -- can the plaintiffs simply say negligence is established?" said Frey.

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