Recently, in Searcy v. R.J. Reynolds Tobacco Co., 2018 WL 4214594 (11th Cir. Sept. 5, 2018), the Eleventh Circuit held that giving preclusive effect to a Florida jury’s findings that tobacco companies had concealed the health impacts of smoking did not violate the Due Process Clause when the defendants had notice and an opportunity to be heard.
This is the latest in a line of “Engle progeny” cases. Engle was a Florida class action brought by smokers that culminated in jury findings establishing many elements of liability on various torts against tobacco companies. The Florida Supreme Court held that the plaintiffs had not established the defendants’ ultimate liability, but that the jury had decided several issues relevant to the defendants’ liability—for example, that cigarettes are carcinogenic and addictive, and that the defendants had concealed that fact—and that these findings would have preclusive effect. Engle v. Liggett Grp., 945 So. 2d 1246 (Fla. 2006). In Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir. 2017) (en banc), the Eleventh Circuit held that giving preclusive effect to the Engle jury’s findings for negligence and strict liability torts comported with due process. (You can find our blog post in Graham here.)
Searcy may be more interesting for what it did not decide than what it did. The plaintiff, whose mother had died from a smoking-related illness, had prevailed on several causes of action in the lower court, including the claim that defendants’ intentional concealment of the effects of low-nicotine and low-tar cigarettes had contributed to her mother’s illness. Graham had not addressed intentional torts such as concealment, and the defendants argued that this tort was distinguishable. The defendants reasoned that the application of res judicata comports with due process only if the issue was “actually decided” by the jury, and the Engle trial record did not reveal this to be true for the plaintiff’s specific concealment claims.
The Searcy panel found this question very interesting. It ordered two rounds of supplemental briefing: one on Graham’s impact on intentional torts; one on what the Engle jury had actually decided. Yet the panel had this “intriguing question” snatched away from it. In the interim, another panel held that, under Graham, due process required only that defendants had been given notice and the opportunity to be heard, which had occurred here. Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068 (11th Cir. 2018). Under the circuit’s prior precedent rule, that was the end of the matter.
Judge Martin agreed that defendants’ due process challenge should fail, but wrote separately to state that the majority should not have examined the Engle trial record. (Judge Martin had previously dissented from the majority’s decision to order supplemental briefing on the Engle trial record.) In Judge Martin’s concurrence, she read Graham to require the panel to give full faith and credit to the Florida Supreme Court’s determination that the Engle jury had actually decided that the tobacco companies had intentionally concealed the harmful effects of cigarettes, including “low-tar” and “low-nicotine” cigarettes. Judge Martin joined the rest of the panel’s opinion in full.
As for what the full panel did decide? It rejected a rare challenge under the Reexamination Clause of the Seventh Amendment, which bars partial retrials under certain circumstances. Assuming without deciding that the Seventh Amendment even applies to awards of punitive damages, the court determined that in this case the jury had not impermissibly reexamined the Engle jury’s determination that the defendants had concealed material information. The court also held that the plaintiff had not waived her entitlement to unapportioned damages under a Florida statute.
Posted by Nick Boyd.