SUPREME COURT OF FLORIDA

CASE NO. SC16-218LOWER TRIBUNAL NO. 4D13-1703

R.J. REYNOLDS TOBACCO COMPANY,

Defendant/Petitioner,vs.

PHIL J. MAROTTA, as Personal Representativeof the Estate of Phil F. Marotta, Deceased,

Plaintiff/Respondent.__________________________________________/

RESPONDENT’S ANSWER BRIEF

Philip Freidin Richard B. RosenthalFreidin Brown, P.A. Counsel of Record 2 South Biscayne Boulevard Florida Bar No. 184853Suite 3100 Law Offices of Richard B. Rosenthal, P.A.Miami, Florida 33131 1581 Brickell Avenue, Suite 1408pf@fblawyers.net Miami, Florida 33129

Tel: (305) 779-6097 / Fax; (305) 779-6095rbr@rosenthalappeals.com

Alex Alvarez Randy RosenblumThe Alvarez Law Firm Dolan Dobrinsky Rosenblum, LLP355 Palermo Avenue 2665 South Bayshore Drive, Suite 609Miami, Florida 33134 Miami, Florida 33133alex.alvarez@integrityforjustice.com rrosenblum@ddrlawyers.com

Robert E. Schack8950 Southwest 74 Court Counsel for RespondentSuite 1711Miami, Florida 33156reslegal@hotmail.com

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TABLE OF CONTENTS

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

INTRODUCTION......................................................................................................1

STATEMENT OF THE CASE AND FACTS...........................................................2

A. The “All Cigarettes Myth”....................................................................3

B. RJR Repeatedly Asserted Implied Preemption ThroughoutThe Engle Trial and Appellate Process...............................................11

C. Other Mis-Statements in RJR’s Factual Recitation............................16

SUMMARY OF ARGUMENT...............................................................................20

ARGUMENT...........................................................................................................22

I. JURISDICTION/SCOPE OF REVIEW........................................................22

II. RJR’S PREEMPTION ARGUMENT IS BARRED.....................................25

A. RJR’s Argument is Barred by the Res Judicata Effect of Engle........25

B. There is No Reason for this Court to Revisit Douglas.......................32

III. RJR’S IMPLIED PREEMPTION ARGUMENT IS WITHOUT MERIT....35

A. RJR’s Implied Preemption Argument Fails Because it isPremised on the “All Cigarettes Myth”..............................................35

B. The Federal Statutes Do Not Support Implied Preemption Here.......37

C. The Tobacco Case Law on Preemption is Squarely Against RJR......42

D. RJR’s Argument Contravenes Established Principles ofFederalism and Dual Sovereignty.......................................................47

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E. RJR is Not Entitled to A New Trial....................................................48

IV. RJR’S DUE PROCESS ARGUMENT IS WITHOUT MERIT....................49

V. THE COURT SHOULD SUMMARILY QUASH AND REMAND SOLELY REGARDING THE CLAIM FOR PUNITIVE DAMAGES........50

CONCLUSION........................................................................................................50

CERTIFICATE OF SERVICE................................................................................52

CERTIFICATE OF COMPLIANCE.......................................................................52

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TABLE OF CITATIONS

Animal Leg. Defense Fund v. Veneman, 490 F.3d 725 (9th Cir. 2007)...................................................................................19

Altria Group v. Good, 555 U.S. 70 (2008)...................................................................................................43

Austin v. Tennessee, 179 U.S. 343 (1900).................................................................................................42

Barton Protective Servs., Inc. v. Faber, 745 So.2d 968 (Fla. 4th DCA 1999)........................................................................49

Bates v. Dow Agrosiences, LLC, 544 U.S. 431 (2005).................................................................................................47

Berger v. Philip Morris USA, Inc.,2016 WL 2593841 (M.D. Fla. May 5, 2016)...................................................passim

Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005)...................................................................................46

Bougpoulos v. Altria Group, Inc., 954 F. Supp. 3d 54 (D. N.H. 2013)..........................................................................46

Brown v. Philip Morris USA, Inc., No. 07-11175 (Fla. 4 Cir. Aug. 3, 2015)...............................................................24th

Cantor v. Davis, 489 So. 2d 18 (Fla. 1986)..................................................................................25, 28

Chinatown Neighborhood Assn. v. Harris, 794 F.3d 1136 (9th Cir. 2015).................................................................................43

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)...........................................................................................40, 43

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Conley v. RJ Reynolds Tobacco Co., 286 F. Supp. 2d 1097 (N.D. Cal. 2002).............................................................43, 46

Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013)...............................................................................passim Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).............................................................................passim

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)........................................................................14, 16, 17, 37, 38

Ferlanti v. Liggett Group. Inc., 929 So. 2d 1172 (Fla. 4th DCA 2006).....................................................................43

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)...........................................................................................39, 40

Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)...........................................................................................43, 44

Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir. 2015), vacated and reh’g en banc ordered, 811 F.3d 434 (11th Cir. 2016)............1, 19, 23

Gray v. R. J. Reynolds Tobacco Co., No. 13-2813 (Fla. 1 Cir. May 20, 2015)................................................................24st

Hardin v. R. J. Reynolds Tobacco Co., No. 12-2900 (Fla. 11 Cir. May 13, 2015)..............................................................24th

In re Holder,945 So. 2d 1130 (Fla. 2006)....................................................................................32

In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 725 F.3d 65 (2d Cir. 2013)......................................................................................43

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Izzarelli v. RJ Reynolds Tobacco Co., 806 F. Supp. 2d 516 (D. Conn. 2011)......................................................................46

Liggett Group, Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007).......................................................................17

Liggett Group, Inc. v. Engle,853 So. 2d. 460 (Fla. 3d DCA 2003).................................................................14, 45

Medtronic, Inc. v. Lohr, 518 U.S, 470 (1996).................................................................................................47

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985).................................................................................................42

Murray v. Reiger, 872 So. 2d 217 (Fla. 2002)................................................................................25, 28

Musnick v. King Motor Co., 325 F.3d 1255 (11th Cir. 2003)...............................................................................19

Philip Morris USA, Inc. v. Arnitz, 933 So. 2d 693 (Fla. 2d DCA 2006)........................................................................43

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

Philip Morris USA, Inc. v. Hess, 95 So. 3d 254 (Fla. 4th DCA 2012)...................................................................31, 32

Philip Morris USA, Inc. v. Lourie, No. 2D14-5403 (Fla. 2d DCA)................................................................................24

Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th DCA 2012).......................................................................48

Pickelman v. Mich. State Police, 31 Fed. App’x 298 (6th Cir. 2002)..........................................................................43

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Puerto Rico Dept’t of Consumer Affairs v. Isla Petro. Corp., 485 U.S. 495 (1988).................................................................................................39

Richardson v. RJ Reynolds Tobacco Co., 578 F. Supp. 2d 1073 (E.D. Wisc. 2008).................................................................46

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008).................................................................................................39

RJ Reynolds Tobacco Co. v. Engle, 672 So. 2d 39 (Fla. 3d DCA 1996)............................................................................8

RJ Reynolds Tobacco Co. v. Engle, 552 U.S. 941, rh’g denied, 552 U.S. 1056 (2007)...................................................16

RJ Reynolds Tobacco Co. v. Marotta, 182 So. 3d 829 (Fla. 4th DCA 2016)...............................................................passim

RJ Reynolds Tobacco Co. v. Martin, 53 So. 2d 1060 (Fla. 1st DCA 2010).........................................................................5

Russo v. Philip Morris USA, Inc., No. 07-44469-CA-01(58) (Fla. 11 Cir. Apr. 28, 2015).........................................24th

Ryan v. R.J. Reynolds Tobacco Co., No. 08-022579 (19) (Fla. 17 Cir. Apr. 16, 2015)..................................................24th

Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016).............................................................................passim

Spain v. Brown & Williamson Tobacco, 363 F.3d 1183 (11th Cir. 2004)...............................................................................46

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)...................................................................................................44

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United States v. Lopez,514 U.S. 549 (1995).................................................................................................48

United States v. Philip Morris USA, Inc., 449 F. Supp. 2d. 1 (D.D.C. 2006), aff’d in part, 566 F.3d 1095 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 3501 (2010)........................................................................47

Viva! Int’l Voice for Animals v. Adidas Promo. Retail Ops., 162 P.3d 569 (Cal. 2007).........................................................................................43

Walker v. RJ Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), cert. denied, 134 S. Ct. 2727 (2014).....................................................18, 19, 45, 50

Williamson v. Mazda Motors of Am., Inc., 562 U.S 323 (2011)..................................................................................................47

Wyeth v. Levine, 555 U.S. 555 (2009)...............................................................................39, 44, 45, 47

STATUTORY PROVISIONS

Alcohol and Drug Abuse Amendments of 1983, Pub. L. No. 98-24, 97 Stat. 175 (1983)...................................................................40

Alcohol, Drug Abuse and Mental Health Administration Reorganization Act,Pub. L. No. 102-321, § 202, 106 Stat. 394 (1992)..................................................40

Comprehensive Smokeless Tobacco Health Education Act of 1986, 15 U.S.C. §§ 4401–08 (1988)..................................................................................41

Family Smoking Prevention and Tobacco Control Act of 2009, 21 U.S.C. § 387p(a)(1) & (b)...................................................................................41

Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C. §1331 et. seq............................................................................................40

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Public Health Cigarette Smoking Act of 1969,Pub. L. No. 91-222, 84 Stat. 87 (1970)...................................................................40

OTHER MATERIALS

Brief of Plaintiff Class in Engle,2004 WL 1452476 (Fla. 2004)................................................................................28

Brief of Petitioner RJ Reynolds in Douglas, 2012 WL 3078033 (Fla. May 30, 2012)..................................................................33

G. Kogan & R. Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 NOVA L. REV. 1151 (1994)...............................23

http://www.revenue.nebraska.gov/cig/manufacturer.html .......................................7

Reply Brief of RJ Reynolds in Douglas, 2012 WL 3078034 (Fla., filed June 18, 2012)..................................................33, 34

RJ Reynolds’ U.S Supreme Court brief in FDA v. Brown & Williamson, 1999 WL 712566 (U.S., filed Sept. 10, 1999).........................................................38

RJ Reynolds’ Pet. for Certiorari in Engle, 2007 WL 1494692 (U.S., filed on May 21, 2007)............................................15, 16

Robert N. Proctor, Why ban the sale of cigarettes? The case for abolition,TOBACCO CONTROL, 22:i27 (2013)...................................................................42

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INTRODUCTION

The arguments presented by Petitioner R.J. Reynolds Tobacco Company

(“RJR”) have been unanimously rejected by every court that has considered them.

Indeed, the supposed “conflict” that animated the Fourth District to certify the

implied preemption question as one of great public importance has since disappeared,

leaving instead complete unanimity among all the Florida and Federal courts. Fifteen

days after the Fourth District noted that its ruling in this case conflicted with a panel

decision of the U.S. Court of Appeals for the Eleventh Circuit in Graham v. RJR, 782

F.3d 1261 (11th Cir. 2015), the Eleventh Circuit vacated its Graham panel decision

and ordered that case to be heard en banc. 811 F.3d 434.

Both before and since the Graham panel opinion was rendered a nullity by its

vacatur, every court confronted with the certified question–whether the negligence

and strict liability claims of an Engle progeny plaintiff are impliedly preempted by

federal law–has rejected it. The unanimous tidal wave of court decisions is correct.

RJR’s implied preemption argument is barred by res judicata, and it is wrong anyhow.

The only live issue in this case is something that already has been resolved by

this Court: Mr. Marotta was entitled to present his punitive damages case to the jury.

Soffer v. RJR, 187 So. 3d 1219 (Fla. 2016). The Fourth District ruled–pre-Soffer–that

punitive damages were unavailable to Mr. Marotta on his victorious products liability

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claim, rejecting his cross-appeal below. RJR v. Marotta, 182 So. 3d 829, 830 (Fla.

4th DCA 2016). That lone aspect of the Fourth District’s decision should be

summarily quashed and remanded for further proceedings consistent with Soffer.

STATEMENT OF THE CASE AND FACTS

In this Engle progeny case, the jury found that Mr. Marotta’s addiction to

RJR’s cigarettes caused his death by lung cancer. The evidence demonstrated that

Mr. Marotta began smoking cigarettes at the age of 12, became heavily addicted, and

smoked 2 to 3 packs a day of RJR brands (mostly Winston, but also Kools, Doral and

Tareyton) persistently for decades, before his eventual death at the early age of 47.

See, e.g., Tr. Vol. 5 at 496. He tried to beat his addiction numerous times, always1

without success. Tr. Vol. 11 at 1421; Vol. 17 at 2364-68.

On a strict products liability claim, the jury found RJR liable. The jury found

for RJR on the claims for negligence, concealment, and conspiracy. The jury

assigned 58% of the fault to RJR and 42% to Mr. Marotta, awarding $6 million in

total compensatory damages–$2 million to each of Mr. Marotta’s three survivors.

The trial court denied RJR’s post-trial motions, and after reducing the damages to

References to Mr. Marotta’s trial will be cited in the following format: “Tr. Vol.1/

[volume number] at [page number]. References to the Engle trial–the materials ofwhich were included as part of the record in the Fourth District–will be cited in thefollowing format: “Engle Tr. Vol. [volume number] at [page number].”

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reflect the jury’s determination of comparative fault, entered final judgment against

RJR for $3.48 million. The Fourth District affirmed on all points, but “recognizing

the Eleventh Circuit’s decision to the contrary” in Graham, it certified the implied

preemption question as one of great public importance. Marotta, 182 So. 3d at 834.

Tellingly, RJR’s appellate brief says little about the evidence actually presented

at Mr. Marotta’s trial. Instead, RJR simply makes sweeping generalizations, trying

to convince this Court (Brief at 1) that Mr. Marotta’s strict liability claim was

“premised on the inherent health and addiction risks of all cigarettes.” That is simply

not so. This myth–the “All Cigarettes Myth” as we will call it–pervades RJR’s Brief.

A. The “All Cigarettes Myth”

The reality is that we presented evidence that Mr. Marotta was addicted to the

RJR cigarettes he smoked, and that this addiction caused his death by lung cancer.

From the outset, we told the jury our case would not be about “inherent health risks

and addictiveness” of all cigarettes but rather how RJR deliberately engineered and

manipulated the nicotine levels: “They purposely controlled the levels of nicotine in

cigarettes to keep people addicted. They can take it out almost completely or to the

point where it’s no longer addictive. But they chose not to do that.” Tr. Vol. 5 at 452.

And that is exactly what our evidence proved. It demonstrated that RJR

deliberately manipulated the levels of nicotine in the cigarettes Mr. Marotta smoked,

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in order to maximize the addictiveness of them. For example, using a demonstrative

chart, one of our experts testified (Tr. Vol. 7 at 946-47):

A: [T]hese are different formulas -- well, rather nicotine contents inthe different types of leaves, and then they’re separated by eachdifferent brand, a number of different brands. So the three barsare each for Marlboro, Kent, and Winston, the different ratios ofdifferent types of leaf that are used in those.

Q: Are Winston cigarettes reflected in this chart?A: Yes, those are the yellow bars.Q: And is that manufactured by R.J. Reynolds Tobacco Company?A: Yes, it’s shows the percentage of nicotine there for Winston is

being just a little over two percent nicotine in bright leaf.Q: And what is the significance of the fact that different stings of

tobacco have different amounts of nicotine in them?A: It’s just a way for the tobacco industry to do what they call

precision manufacturing, where they can actually control veryprecisely how much nicotine was in a particular brand bymanipulating the different types of leaves involved in theblending of the cigarette.

The expert further explained some of the ways in which RJR deliberately

manipulated the nicotine, emphasizing that there was nothing “inherent” about the

addictive characteristics of RJR’s cigarettes–rather, it was RJR’s deliberate decision:

Q: And before we go through the specifics of this document, let mejust ask you a couple of general questions about this issue ofcontrolling nicotine. Is that a sophisticated process? Is it an easyprocess? Can you describe it for the jury?

A: No, it’s quite sophisticated. The way it's actually manipulated inthese processes is done within two decimal points of content ofnicotine for any given cigarette design.

Q: Have you studied whether the issue of how tobacco is grown canaffect the amount of nicotine in that tobacco?

A: Yes.

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Q: And can you describe that for us, please?A: Well, there are many different ways to control the amount of

nicotine in a particular tobacco leaf, and this can be beencontrolled by how tightly the plants are grown together, by howmuch fertilizer is added, by manipulating which particular leafyou take. The top leaves have more nicotine than the lowerleaves. The type of climate will affect the type of soil, so there aremany different ways to control how much nicotine is in the leaf,apart from just which variety you choose as well; that's anotherway to manipulate.

Q: Is it possible to grow tobacco with no nicotine?A: Yes, or essentially no nicotine.

Id. at 948-49. The point was summarized in this pithy exchange (Tr. Vol. 9 at 976):

Q: Doctor, does nicotine occur naturally in tobacco?A: Yes.Q: Does that mean that it’s not manipulated by the tobacco

companies?A: No.

The expert further explained that RJR actually did, at one point, design and

market certain cigarettes that it believed would be safer–these cigarettes, called

“Premier” and “Eclipse,” merely heated the tobacco rather than burning it, causing

the smoker to inhale less actual smoke–but RJR removed them because smokers

generally disliked the taste. Tr. Vol. 10 at 1246-50. While marketing these safer2

This reality has existed for over 80 years. RJR v. Martin, 53 So. 3d 1060, 1070 (Fla.2/

1st DCA 2010) (“The evidence also showed that as early as 1935 it was technicallypossible to remove nicotine from Lucky Strikes cigarettes but the company [RJR'spredecessor] chose not to do so . . . . That business decision endured, as . . . RJR . .. remained concerned that if it were to remove nicotine from its cigarettes peoplewould elect not to smoke.”).

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cigarettes, RJR continued to sell the brands that Mr. Marotta smoked, which RJR

privately knew were unreasonably addictive and unsafe. Tr. Vol. 10 at 1299-1300.

In closing argument, we reminded the jury of this point (Tr.Vol 19 at 2632-33):

They get it. Listen, if we continue to make this thing addictive, peopleare going to continue to smoke. And if we don’t make it addictive, guesswhat, people won’t smoke . . . . [T]his whole thing about, well, if youget a little bit of tobacco from the ground, it’s going to have nicotine init. Nicotine naturally occurs in tobacco. Yeah. But they manipulate it,because you could raise or lower the level of nicotine in cigarettes sothat you don’t make it addictive.

The products liability question on the verdict form echoed this specificity:

“Were the defective and unreasonably dangerous cigarettes manufactured by

Reynolds the legal cause of Mr. Marotta’s lung cancer and death?” R. Vol. 48 at

9499. Based on the evidence, the jury answered this question in the affirmative. Id.

Similarly, the trial and appellate record in Engle belie any notion that Mr.

Marotta’s case was premised on an assertion that “all cigarettes” are defective

because of their inherent risks. It is not accurate when RJR asserts (Brief at 2) that

in the Engle trial, “[o]n the strict liability and negligence claims, the class asserted

broad allegations that all cigarettes are defective, and the sale of all cigarettes is

negligent, because cigarettes are addictive and cause diseases.” Here is what actually

occurred during Engle:

RJR omits any discussion of the natural starting point for analyzing the nature

6

and scope of the claim in Engle: the Class Complaint itself. The Class Complaint did

not encompass an attack on all cigarettes. Engle Compl. 36-47, 49-51. Nor did the

strict liability and negligence counts apply to all tobacco companies selling

cigarettes–far from it. Rather, it 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.” Id. 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 many other leading manufacturers, such as Nat

Sherman, Inc., and Santa Fe Natural Tobacco Co., Inc. 3

Nor did the Class Complaint seek to include smokers of all cigarettes as class

members. Rather, the focus was on addicted smokers. The Class Complaint asserted

that the common questions included whether the defendants “manipulated the levels

of nicotine in their tobacco products,” and whether the level of nicotine in their

products was manipulated to cause smokers to be addicted to nicotine. Id. at 12-13.

Similarly, the Class Complaint cited industry documents reflecting that

cigarettes are not the industry’s true product; rather a cigarette is a “storage container

for a day’s supply of nicotine.” Id. at 23. It also cited direct evidence of manipulation

See http://www.revenue.nebraska.gov/cig/manufacturer.html (listing the top 253

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

7

of nicotine levels. Id. at 26. In context, the “dangerous and defective products”

referred to as “cigarettes containing nicotine,” id. at 36, were those which produced

addiction and disease from the named defendants’ manipulation.

The protracted battle regarding class certification in Engle further narrowed the

scope of the case, and intensified its focus on the role that nicotine plays in causing

disease. Not only was addiction an element of class membership, but class members

were limited to those whose illness and death were caused by that addiction.

Ultimately, the Third District refined the class definition to include all Florida

“citizens and residents, and their survivors, who have suffered, presently suffer or

have died from diseases and medical conditions caused by their addiction to cigarettes

that contain nicotine.” RJR v. Engle, 672 So. 2d 39, 40-42 (Fla. 3d DCA 1996).

The Phase I verdict form for the Engle trial further cements the notion that the

jury was not being asked to render a decision about all cigarettes. The verdict form4

the trial court ultimately approved 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

The trial court refused to give the named defendants’ proposed impractical,4/

essay-style verdict form that would have required the jury to identify in narrative formevery defect it found for every brand of cigarette and every time period, but the courtmade clear that if defendants “want specificity, then there is a way of doing it,” EngleTr. 35 at 968-69. But the defendants never submitted a proposed verdict form withYes/No questions for specific types of cigarettes.

8

intended” or that “the risk of danger in the design outweighs the benefits.” Engle Tr.

351 at 37,571. The court also instructed that to prevail on negligence, the class had

to prove 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.” Engle Tr. 351 at 37,577.

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

first asked whether smoking causes various disease, and the jury answered yes for

most of them. Phase I Verdict 1-2. The second asked whether cigarettes containing

nicotine are addictive, and the jury answered yes. Id. at 2. But those answers, standing

alone, 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.

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If RJR’s assertion that the Engle theory of strict liability was that “all cigarettes

are defective . . . because cigarettes are addictive and cause disease” were correct, the

jury’s answer to the first question (do cigarettes cause disease?) would have been the

basis for liability. But it was not. This fact was necessary but not sufficient to

establish the class’s claims; standing in isolation, the verdict form’s first question no

more established liability than the fact that car wrecks cause injuries would alone

establish a manufacturer’s liability in an auto products liability case. The basis for

liability asserted in the strict liability and negligence claims against the Engle

defendants was that those specific manufacturers designed their cigarettes by

manipulating the nicotine to ensure addiction, failed to warn their 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 were caused by smoking

many cigarettes every day as a result of addiction.5

In short, the record squarely exposes and refutes RJR’s “All Cigarettes Myth.”

And that myth is the predicate for RJR’s entire argument here. The strict liability

claim was that the defective cigarettes were only those: (1) that contained nicotine

Douglas, 110 So. 3d at 431-32 (“[P]roving class membership often hinges on the5/

contested issue of whether the plaintiff smoked cigarettes because of addiction or forsome other reason (like the reasons of stress relief, enjoyment of cigarettes, andweight control argued below).”).

10

(the trial evidence showed that the defendants could and indeed did market some

safer cigarettes, but they didn’t sell well because smokers didn’t get addicted); and

(2) that were designed and marketed by these defendants (many major brands were

not produced by the Engle defendants, and thus were not affected, and one named

defendant, Brooke Group, was partially exonerated in Engle); and (3) that were

designed and marketed during a limited time frame to a limited class of smokers.

Earlier this month, the U.S. District Court in Jacksonville systematically

reviewed these very same materials from the Engle trial record and concluded, in a

detailed opinion, that the “All Cigarettes Myth” was just that – a myth:

PM USA evidently believes that the Phase I findings were “premised onthe theory that all cigarettes are inherently defective and that everycigarette sale is an inherently negligent act.” PM USA’s characterizationof the Engle findings is hard to reconcile with what occurred at thePhase I trial, taking into account the Engle plaintiffs’ allegations, theevidence presented in Phase I, the jury instructions, and the structureand content of the Phase I verdict itself. * * * Accordingly, I reject PMUSA’s characterization of the Phase I liability findings as being basedon nothing more than the inherent properties of cigarettes.

Berger v. Philip Morris USA, Inc.,2016 WL 2593841, *6-*8 (M.D. Fla. May 5, 2016).

B. RJR Repeatedly Asserted Implied Preemption Throughout the EngleTrial and Appellate Proceedings.

Another critical area in which the factual recitation in RJR’s Brief is

misleading is its discussion of the implied preemption issue in the Engle class trial

and appeals. RJR’s factual recitation mentions only a (later-quashed) decision about

11

preemption from the Third District in Engle (Brief at 31), but RJR omits any

reference to its own repeated invocation of the implied preemption affirmative

defense throughout the Engle litigation.

From the very filing of the Engle Class Complaint, RJR asserted the affirmative

defense of federal preemption. RJR Answer at 6, 19. In analyzing the Engle

defendants’ motion for summary judgment based on federal preemption, the trial

court “scrutinized” the claims of the individual class members to determine if they

were preempted. Order on Defendants’ Motion for Partial Summary Judgment ¶9.

The court painstakingly analyzed dozens of discrete allegations by the class,

identifying those which were not preempted. For example, the class’s allegation that

the defendants “manipulated the level of nicotine in their tobacco products so as to

make these products addictive” was not preempted. Id. ¶9(a). Nor were the allegations

that the defendants failed to utilize available, safer alternative designs for cigarettes,

id. ¶9(ee), nor that the defendants failed to “design and manufacture products that did

not contain an unreasonable level of nicotine.” Id. ¶9(aaa).

The defendants also raised the issue of preemption through repeated

evidentiary objections. E.g., Engle Tr.96:10,736-63; 149:16,400-01, 170:18,708-21,

253:27,957-58, 421:42,393-94. The trial court sustained some of them. At the

defendants’ request, the trial court instructed the jury (Engle Tr. 351:37,569):

12

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

Numerous times the defendants made the same core implied preemption

argument that RJR presents here–i.e., the defendants could not be held liable merely

for selling cigarettes, because cigarettes are legal (Engle Tr. 349: 37,361):

[This case is not] about whether cigarettes themselves as a productcategory are wrong or unethical or immoral or against religion, orwhatever other words were used. That’s just not what the law requiresyou to do. That’s not what the case is about. The case isn’t a referendumon smoking. Just not—that’s not what it’s about.

See id. 542:53,913 (“[U]nder the theories of this case, the harm is not merely caused

by actually selling cigarettes.”); id. 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.”).

After the jury in Phase I found for the class, the defendants unsuccessfully

sought a new trial based, among other arguments, on preemption. Phase I Motion for

New Trial 69-86. And then again, after the jury returned its Phase II verdict, the

defendants again sought a new trial based on the same argument that RJR is

advancing today: that the class “suggesting that cigarettes should not be sold because

they present health risks,” is “contrary to the framework for the sale of cigarettes

established by Congress, which allows the sale of cigarettes.” Phase II-B Motion for

13

New Trial 33 (citing FDA v. Brown & Williamson, 529 US. 120 (2000)).

The defendants made the implied preemption argument on appeal, and the

Third District accepted it:

In FDA v. Brown & Williamson, 529 U.S. at 137, 120 S.Ct. 1291, theSupreme Court noted that Congress has foreclosed the removal oftobacco products from the market since at least 1938. Moreover, duringthe period from 1965 to 1992—a period in which “the adverse healthconsequences of tobacco use were well known, as were nicotine'spharmacological effects”—Congress passed various statutes that“directly addressed the problem of tobacco and health,” whilecontinuing to uphold the legality of selling cigarettes. FDA v. Brown &Williamson, 529 U.S. at 137–38, 120 S.Ct. 1291. See Lorillard v. Reilly,121 S.Ct. at 2426. Because the sale of cigarettes is subject to federalregulation, attempts to impose contradictory requirements orprohibitions under state law are subject to at least implied preemption.See, e.g., Insolia, 128 F.Supp.2d at 1225 (“allowing tort actions againstcigarette manufacturers and sellers for the allegedly negligent act ofcontinuing to make and sell cigarettes would interfere with Congress'spolicy in favor of keeping cigarettes on the market”); see also, Geier v.American Honda Motor Co., 529 U.S. 861, 865, 120 S.Ct. 1913, 146L.Ed.2d 914 (2000) (federal regulation of car manufacturers preemptedstate-law tort claims); cf., Buckman Co. v. Plaintiffs' Legal Committee,531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (state-lawclaims based on alleged misrepresentations to a federal regulatoryagency were preempted).

Liggett Grp., Inc. v. Engle, 853 So. 2d 460 n.35 (Fla. 3d DCA 2003).

But this Court then quashed that opinion. Engle v. Liggett Grp., Inc., 945 So.

2d 1246 (Fla. 2006). Among this Court’s various holdings in Engle was its direct

rejection of defendants’ preemption argument: “Although compliance with the federal

warnings preempted any claim based on failure to warn, it did not eliminate the other

14

causes of action that the jury had to consider in Phase I.” Engle, 945 So. 2d at 1273.

The Court was not merely addressing express preemption based on the warning

labels; it was also addressing defendants’ implied preemption argument that class

counsel had argued to the jury that defendants could be liable despite the fact that

cigarettes legally could be sold, finding that “[t]hese arguments were not an attempt

to tell the jury to ignore the law.” Id. at 1273-74.

Notably, in quashing the Third District’s opinion, this Court also reinstated the

jury’s compensatory damage verdicts for two of the class representatives: Mary

Farnan and Angie Della Vecchia. Id. at 1276. The defendants eventually paid those

judgments to Ms. Farnan ($2.85 million) and Ms. Della Vecchia ($4.02 million). Yet

today, having been found liable for–and ultimately paid–those judgments, RJR makes

the Orwellian assertion (Brief at 32) that it was RJR who prevailed in Engle because

the Third District’s implied preemption ruling went “unchallenged” in this Court.

But before payment was made to the two victorious class representatives in

Engle, RJR sought certiorari in the U.S. Supreme Court, where they made federal

preemption a centerpiece, listing it as one of the two “Questions Presented” in the

case, along with due process. RJR Pet. for Certiorari in Engle, 2007 WL 1494692

(U.S. May 21, 2007). RJR’s petition asserted not just “express preemption” as a basis

for review, but also–just as RJR is asserting today–the supposed “inconsistency”

15

between liability under Florida common law tort principles and “the basic purpose”

of federal statutes regulating tobacco. Id. at *20,*29. RJR explicitly acknowledged

that its petition would be its final opportunity to defeat Engle progeny cases on the

basis of preemption: “If certiorari is not granted, the Florida courts’ disregard for

federal preemption will subject petitioners to adverse judgments based on those

theories in all the follow-on cases to which the Florida Supreme Court has given the

green light.” Id. at *30. The U.S. Supreme Court denied review. RJR v. Engle, 552

U.S. 941, rh’g denied, 552 U.S. 1056 (2007).

As the foregoing chronology reveals, the Engle case–from beginning to

end–was replete with the defendants’ repeated assertions that the plaintiffs’ claims

were impliedly preempted by federal law. And those efforts ultimately failed.

C. Other Mis-Statements in RJR’s Factual Recitation.

Although we will amplify this infra, it bears mention here RJR has mis-stated

the holdings of several cases in its factual recitation. First, RJR says (Brief at 1) that

FDA v. Brown & Williamson (“B&W”), 529 U.S. 120 (2000), “held as a matter of

federal law that Congress has ‘foreclosed the removal of tobacco products from the

market.’ Id. at 138-39.” This selective quotation snippet is misleading. B&W

certainly did not hold that Congress has decreed tobacco products cannot be banned

anywhere within the country by any governmental entity. The Supreme Court instead

16

made clear that it was saying the FDA could not effect a nationwide ban on tobacco

products. B&W, 529 U.S. at 139 (“A ban of tobacco products by the FDA would

therefore plainly contradict congressional policy”) (emphasis ours). That is because

the FDA is an administrative agency, and as such, it would have needed a

Congressional delegation of authority for the agency to effect such a ban. As we

explain infra, the sovereign States, unlike federal administrative agencies, do not

need a permission slip from Congress to exercise regulatory authority to protect the

public health and welfare of their citizens and residents. Morever, “the market” B&W

was referring to–i.e., that for which the FDA could not ban tobacco products –was the

nationwide market. See id. at 138-39 (Congress is the entity which gets to set policy

for “commerce and the national economy”). B&W said nothing at all about whether

a any particular State could regulate–or even completely ban–the sale of tobacco

products within its State borders.

RJR next misleads (Brief at 1) by stating that “[t]he Fourth District has given

conflicting answers” on the implied preemption question in the case at bar and in

Liggett Grp., Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007). RJR claims that the

Fourth District in the case at bar “held the opposite from Davis” and did so “without

attempting to distinguish” Davis. Id. Not so. In actuality, the Fourth District in the

case at bar directly addressed Davis, explaining that “[w]hether a state law claim is

17

preempted is dependent on the exact nature of that particular claim” and then quoting

Davis for the proposition that “state law claims based on the manufacturer’s practices

of testing or research unrelated to advertising were not preempted. Accordingly, not

all tobacco claims are preempted, ‘only certain ones.’” Marotta, 182 So. 3d at 831

(quoting Davis, 973 So. 2d at 471-72). As the Fourth District made clear, there is no

conflict between Marotta and Davis because the holding of each is predicated “on the

exact nature of that particular claim.” Id. Davis was not an Engle progeny case, and

thus its claims were not Engle claims. Davis actually affirmed that “a design defect

claim against a cigarette manufacturer is not preempted by federal statutes.”Id. at 472.

Next, RJR mis-states the Eleventh Circuit’s decision in Walker v. RJR, 734

F.3d 1278 (11th Cir. 2013). According to RJR (Brief at 6), Walker premised its

decision upon the court’s “read[ing] Douglas to have held that the Engle jury actually

decided that ‘all’ cigarettes are defective, and the sale of ‘all’ cigarettes is negligent,

because cigarettes are addictive and cause various diseases. Id. at 1281, 1287.”

Despite RJR’s repeated use of the word “all” in quotation marks, Walker never

endorsed the “All Cigarettes Myth.” Rather, Walker specified that it was addressing

“the Engle defendants’ cigarettes” (id. at 1281)– which, as we noted supra, is a

considerably smaller sub-set of cigarettes than all cigarettes. Indeed, rather than

accepting the “All Cigarettes Myth,” what Walker actually held was that “the decision

18

of the Supreme Court of Florida [in Douglas] forecloses that argument. Whether a

jury actually decided an issue is a question of fact, and the Supreme Court of Florida

looked past the ambiguous jury verdict to decide this question of fact.” Id. at 1289

(bracketed material added for clarity; internal citation omitted).

RJR reports (Brief at 8) that “the Eleventh Circuit granted rehearing en banc

in Graham” but does not mention the panel decision was also vacated, 811 F.3d 434,

meaning it is a legal nullity. Musnick v. King Motor Co., 325 F.3d 1255, 1257 n.1

(11th Cir. 2003) (A “vacated decision has no effect whatsoever.”); Animal Leg.

Defense Fund v. Veneman, 490 F.3d 725, 730-31 (9th Cir. 2007) (Thomas, J.,

concurring) (“Vacatur . . . render[s] an opinion a legal nullity.”).

Lastly, RJR mis-states the holding of the Fourth District in the case at bar.

According to RJR (Brief at 10), “the Fourth District held that federal law does not

impliedly preempt strict-liability and negligence claims based on the inherent health

and addiction risks of all cigarettes.” The Fourth District held no such thing. Rather,

the court described the “flaws” in the assertion that “the past ten years of Florida

tobacco case law” can somehow be “equate[d] . . . to a ban on cigarette sales.”

Marotta, 182 So. 3d at 832. Indeed, specifically because the Fourth District did not

credit RJR’s “All Cigarettes Myth,” it concluded as follows: “In sum, because Engle

progeny cases do not support a conclusion that strict product liability claims amount

19

to a ban on the sale of cigarettes, and because federal tobacco laws expressly preserve

a state’s ability to regulate tobacco in ways other than manufacturing and labeling

while declining to ‘modify or otherwise affect any action or the liability of any person

under the product liability law of any State,’ we find no conflict between the

applicable state and federal laws.” Id. at 834.

SUMMARY OF ARGUMENT

There is no reason for this Court to exercise its discretion to decide the certified

question because the underlying “conflict” which prompted the Fourth District to

certify it no longer exists. Indeed, the Eleventh Circuit having now vacated its panel

opinion in Graham, every court–both Florida and Federal–is in total agreement that

RJR’s implied preemption argument fails. Put simply: There is no conflict and no

need to provide guidance to the lower courts in Florida. All courts already agree.

The only issue that merits this Court’s attention is the argument the Fourth

District rejected in our cross-appeal below. Mr. Marotta argued that the trial court

should have permitted him to seek punitive damages on his strict liability claim, and

noted that this exact issue was then pending in this Court. But before this Court

resolved the question by issuing its decision in Soffer v. RJR, 187 So. 3d 1219 (Fla.

2016), the Fourth District disallowed Mr. Marotta’s punitive damages claim.

Marotta, 182 So. 3d at 830. That lone aspect of the Fourth District’s decision should

20

be summarily quashed and remanded for further proceedings consistent with Soffer.

The Court should go no further than that.

But if it does, RJR’s preemption argument is barred by the res judicata effect

of Engle anyhow. As this Court made clear in Douglas, the res judicata effect of

Engle bars any arguments that were raised–or could have been raised–in the Engle

litigation which seek to immunize the conduct of the Engle defendants. In other

words, the conduct elements of their torts have been established and cannot be

contested. But that is exactly what RJR is attempting to do here, through its

preemption defense: arguing that its conduct was non-tortious because it was

impliedly protected by federal law. Certainly nothing prevented RJR from making

that argument within the Engle litigation, and indeed RJR did make it there

repeatedly. Either way, it is barred now. Accordingly, this Court need not–and

indeed should not–bother confronting the implied preemption question.

Morever, the Court has already decided the question in both Engle and

Douglas, and there is no reason to re-visit it here. Engle held: “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 [of the

Engle trial].” Engle, 945 So. 2d at 1273. In Douglas, RJR again asserted its

preemption argument, but the Court rejected it, “affirming the general verdict for the

21

plaintiff based on strict liability.” Douglas, 110 So. 3d at 422. RJR now attempts to

tapdance away from Douglas’ holding by arguing that its argument today is somehow

different from what it argued in Douglas; but RJR’s own briefs in both Engle and

Douglas betray the fallacy of that argument.

Even if RJR’s preemption argument were not barred, the argument is wrong on

the merits anyway. It is predicated on RJR’s “All Cigarettes Myth”: i.e., that the

Engle strict liability claim is that all cigarettes are defective because of their inherent

health risks and addictiveness. As our factual recitation explained, that assertion is

simply not true. The Engle findings do not involve all cigarettes. They pertain only

to a limited universe of cigarettes of a limited kind, produced and marketed by a

limited list of tobacco companies, during a specific limited time frame.

Nor is there any merit to RJR’s perfunctory due process argument, an argument

which every court–including this one–has rejected many times over. There is nothing

new about that argument today.

ARGUMENT

I. JURISDICTION/SCOPE OF REVIEW

As this Court is well aware, “certification does not create mandatory

jurisdiction. The Florida Supreme Court has discretion to decline review, such as

where the question is irrelevant, or where answering it would serve no purpose. On

22

occasion, the Court also seems to have declined to answer questions it regarded as too

insignificant.” G. Kogan & R. Waters, The Operation and Jurisdiction of the Florida

Supreme Court, 18 NOVA L. REV. 1151 (1994). When the Fourth District certified

the question in this case, it explicitly did so based on the view that its opinion

conflicted with the panel opinion in Graham (Marotta, 182 So. 3d at 831-32, 834):

Recently in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11thCir. 2015, the Eleventh Circuit held that Engle progeny strict liabilityand negligence claims are implicitly preempted by federal law. *** Wedisagree with Graham, and we respectfully note what we believe to beflaws in its reasoning. *** Recognizing the Eleventh Circuit’s decisionto the contrary, however, we certify this latest Engle progeny defense asa question of great public importance[.]

However, exactly 15 days after the Fourth District issued its opinion, the

Eleventh Circuit vacated the panel opinion in Graham and set it for rehearing en

banc. Vacatur renders the panel opinion a nullity, as if it never existed. Supra at 19.6

Now that the Graham panel opinion has been vacated, there is no conflict.

Indeed, both before Graham and after Graham, every court confronted with the

certified question–whether the negligence and strict liability claim of an Engle

progeny plaintiff is impliedly preempted by federal law–has rejected the argument on

the merits, or otherwise held that the argument was barred by the res judicata effect

of Engle. Roughly 200 Engle progeny trials pre-dated Graham, and none of them has

The Eleventh Circuit later issued an amended order to the same effect, but merely6/

adding that Chief Judge Carnes had recused himself. 811 F.3d 434.

23

held the plaintiff’s claim was impliedly preempted. And every Florida decision

issued after the Graham panel opinion has explicitly rejected it. See Ryan v. R.J.

Reynolds Tobacco Co., No. 08-022579 (19) (Fla. 17 Cir. Apr. 16, 2015); Russo v.th

Philip Morris USA, Inc., No. 07-44469-CA-01(58) (Fla. 11 Cir. Apr. 28, 2015);th

Hardin v. R. J. Reynolds Tobacco Co., No. 12-2900 (Fla. 11 Cir. May 13, 2015);th

Gray v. R. J. Reynolds Tobacco Co., No. 13-2813 (Fla. 1 Cir. May 20, 2015); Brownst

v. Philip Morris USA, Inc., No. 07-11175 (Fla. 4 Cir. Aug. 3, 2015). In the federalth 7

system, Graham has been rendered a nullity by its vacatur, but even so, the U.S.

District Court in Jacksonville recently added its voice to the unanimous chorus

rejecting Graham’s reasoning (Berger, 2016 WL 2593841, at *6 (citations omitted)):

I am well aware that the now vacated, now non-binding panel opinionin Graham endorsed PM USA’s argument. . . . Like other courts inFlorida, and around the country, which have rejected preemption claims,I find entirely unpersuasive PM USA’s arguments and the panel’srationale that somehow Congress, when it decided not to ban cigarettesales in toto, implicitly preempted state law product liability.

Put simply: There is no conflict and no need to provide guidance to the lower

courts in Florida. They are in complete agreement that the Engle defendants’ implied

preemption argument fails. Whatever “great public importance” the Fourth District

perceived at the time–before the Graham panel opinion was vacated– it is gone now.

Copies of those opinions were part of the record below. The issue is pending in a7/

Second District appeal which has not yet been orally argued, PM v. Lourie, No.2D14-5403, in which the trial court found “no merit” to the implied preemption defense.

24

There is, however, one issue that does merit this Court’s attention. See Cantor

v. Davis, 489 So. 2d 18, 20 (Fla. 1986) (“Once this Court has jurisdiction, however,

it may, at its discretion, consider any issue affecting the case.”); Murray v. Reiger,

872 So. 2d 217, 223 n.5 (Fla. 2002) (same). In the Fourth District, Mr. Marotta cross-

appealed and argued that the trial court erred by preventing him from seeking

punitive damages on his strict liability claim, and specifically noted that the question

was pending in this Court. The Fourth District–before this Court resolved the

question by issuing its ruling in Soffer v. RJR, 187 So. 3d 1219 (Fla. 2016)–held Mr.

Marotta was not entitled to seek punitive damages. Marotta, 182 So. 3d at 830. Now

that Soffer has resolved that question, that lone aspect of the Fourth District’s

decision should be summarily quashed and remanded for further proceedings.

II. RJR’s IMPLIED PREEMPTION ARGUMENT IS BARRED.

A. RJR’s Argument is Barred by the Res Judicata Effect of Engle

When this Court in Engle said its findings would have “res judicata effect” in

all progeny cases, the Court meant exactly what it said: “res judicata” not “collateral

estoppel.” Douglas, 110 So. 3d at 432 (“At its core, the defendants’ due process

argument is an attack on our decision in Engle to give the Phase I findings res

judicata–as opposed to issue preclusion–effect in class members’ individual damages

actions. However, res judicata is the proper term, and we decline the defendants’

25

invitation to rewrite Engle.”). Thus, RJR is barred in Engle progeny cases from

asserting any defense to the conduct elements that RJR actually raised in the Engle

trial or could have raised there:

Because the claims in Engle and the claims in individual actions like thiscase are the same causes of action between the same parties, res judicata(not issue preclusion) applies. As we explained in Engle, 945 So.2d at1259 (quoting Kimbrell, 448 So.2d at 1012), res judicata prevents thesame parties from relitigating the same cause of action in a secondlawsuit and “is conclusive not only as to every matter which was offeredand received to sustain or defeat the claim, but as to every other matterwhich might with propriety have been litigated and determined in thataction.” With the Engle defendants’ common liability established by thePhase I findings, individual plaintiffs do not have to reprove thoseelements of their claims. Likewise, Engle defendants are precluded fromarguing in individual actions that they did not engage in conductsufficient to subject them to liability.

Douglas, 110 So. 3d at 432-33 (italics in original; underlining supplied by us).

But that is precisely what RJR is attempting to do here via its implied

preemption defense: RJR is arguing that it “did not engage in conduct sufficient to

subject [RJR] to liability” because, according to RJR, its conduct is impliedly

protected by federal law. As Douglas reaffirmed clearly, that argument is completely

barred by res judicata. Id. at 431 (“[A]s we held in Engle, the Phase I jury’s verdict

fully settled all arguments regarding the Engle defendants’ conduct.”) (emphasis

added). That should be the end of the story.

However, RJR asserts today (Brief at 31) that res judicata does not bar RJR’s

26

implied preemption defense because “an argument for express preemption . . . is

entirely distinct from an argument for implied preemption . . . [and in Engle] [t]his

Court rejected the former, but did not address the latter.” We have already

demonstrated how the historical reality is totally at odds with any contention that the

defendants did not assert an implied preemption defense in Engle. Supra at 11-16.

On this point, the record itself speaks volumes: RJR and its Engle co-defendants

indeed asserted the implied preemption argument throughout Engle.

RJR tries to gain mileage by arguing (Brief at 31) that “[a]fter losing that issue

[implied preemption] in the Third District, the class did not even bother to raise it in

this Court.” That argument fails for a host of reasons. First, as our factual recitation

described, supra at 14-15, this Court in Engle was not merely addressing express

preemption based on the warning labels; it was also addressing defendants’ implied

preemption argument that class counsel had argued to the jury that defendants could

be liable despite the fact that cigarettes legally could be sold, finding that “[t]hese

arguments were not an attempt to tell the jury to ignore the law.” Engle, 945 So.2d

at 1273-74. Second, whether the Engle class itself “raised” the issue to this Court in

its merits brief is irrelevant; the issue was one of the express bases for the Third

District’s ruling–a ruling which this Court then quashed. Once this Court accepted

jurisdiction in Engle, the Court was of course free to consider any and all issues in the

27

case. Cantor, 489 So. 2d at 20; Murray, 872 So. 2d at 223 n.5. Third, the Engle

class’s merits brief to this Court did contest the notion that the defendants could

evade liability in tort merely because Congress had not banned the sale of tobacco.

Engle Class’s Merits Brief, 2004 WL 1452476, *46 (“Defendants’ trial strategy, was

to defend the case by convincing the jury that tobacco manufacturers should not be

liable for selling a legal product with congressionally mandated warnings . . . .

Counsel properly used Civil Rights examples as an analogy of where ‘legality’ of the

product–cigarettes–was not dispositive of the issue; being legal did not make

defendants’ conduct ‘right.’”). And the Court addressed this very point in its opinion,

stating: “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. Fourth and finally, RJR ignores the

historical reality that this Court in Engle ordered payment of the judgment to two

Engle class representatives (Farnan and Delia Vecchia), and payment was eventually

made to them. If those legal claims remained impliedly preempted–as the Third

District had previously held–why did RJR eventually pay Farnan and Delia Vecchia?

RJR is simply engaging in revisionist history about what transpired in Engle.

But there is a more basic point: It actually does not matter whether or not this Court

in Engle rejected an implied preemption defense. All that matters is that RJR could

28

have raised an implied preemption defense in Engle. Because the “res judicata”

reference in Engle means exactly what it says (res judicata and not collateral

estoppel), RJR is now precluded from asserting any defense to its conduct that RJR

could have asserted during the Engle trial and its direct appeals. Now the only

relevant question is: Is there anything that prevented RJR from asserting an implied

preemption defense in Engle? Of course not. Therefore, the implied preemption

argument is barred here.

Yet to this straightforward logic, RJR offers yet another spin. RJR says (Brief

at 33-34) the res judicata effect of Engle applies only to the “conduct elements” of

Engle progeny claims, but not to “defenses.” There are two obvious problems with

this argument. First, this Court cleared up any possible ambiguity on the matter in

Douglas, when it stated (110 So. 3d at 432-33):

With the Engle defendants’ common liability established by the PhaseI findings, individual plaintiffs do not have to reprove those elements oftheir claims. Likewise, Engle defendants are precluded from arguing inindividual actions that they did not engage in conduct sufficient tosubject them to liability.

RJR’s current argument would read the second sentence of that quotation out of

existence. But the second sentence adds something critically important to the first

sentence; it clarifies that not only do plaintiffs in Engle progeny cases not have to

reprove the conduct elements of their own claims, but also the Engle defendants are

29

precluded from arguing that their own conduct was somehow immune from liability.

See also id. at 431 (“[A]s we held in Engle, the Phase I jury’s verdict fully settled all

arguments regarding the Engle defendants’ conduct.”) (emphasis added). In other

words, the only affirmative defenses an Engle defendant possesses in a progeny

case–assuming the plaintiff can prove class membership and individual causation–are

those affirmative defenses which are case-specific to each particular plaintiff (e.g.,

statute of limitations), but not generalized defenses which argue in a sweeping

fashion that the Engle defendants’ conduct was somehow non-tortious (e.g., the

implied preemption defense here). Id. at 429 (“The class action trial plan put the

Engle defendants on notice that if the Phase I jury found against them, the conduct

elements of the class's claims would be established, leaving only plaintiff-specific

issues for individual trials. And our holding allowing the common liability findings

to stand would serve no purpose and would in fact be obliterated if the Engle

defendants were permitted to relitigate matters pertaining to their conduct.”).

Second, RJR has it completely backwards when it argues (Brief at 34) that

post-Engle decisions from this Court somehow “confirm” that Engle defendants are

not barred from raising any affirmative defense. Those decisions confirm just the

opposite. We have already addressed RJR’s attempted distortion of Douglas, but

consider also two more recent decisions: Soffer, 187 So. 3d 1219, and Hess v. Philip

30

Morris USA, Inc., 175 So. 3d 687 (Fla 2015).

Contrary to RJR’s selective quotation of Soffer, that case does not support the

contention that Engle defendants are free to raise any affirmative defense they wish

in progeny cases. Rather, Soffer held: “There is simply no basis to conclude that the

procedural posture of Engle would bar an Engle progeny plaintiff, such as Soffer,

from amending her complaint to request punitive damages on all counts that were

properly pled in her individual action.” Id. at 1227-28. The Court’s reference to

“expand[ing] the res judicata effect of Engle beyond the parameters set by this Court”

id. at 1227, was the Court’s commentary on how RJR was trying to twist and

manipulate the res judicata effect of the Engle findings. And RJR is attempting to do

the same thing now–only this time, RJR is trying artificially to shrink the scope of

those findings to its strategic benefit, whereas in Soffer RJR was trying artificially to

expand the scope of those findings to its strategic benefit.

Hess puts to bed any possible notion that the res judicata effect of the Engle

findings does not extend to the defendants’ affirmative defenses. There, the Court

held that the res judicata effect of the Engle findings bars the Engle defendants’

statute of repose defense, because such defense is predicated on the defendant’s

conduct, rather than on a particular plaintiff’s reliance. Hess, 175 So. 3d at 698

(“Because we hold that the defendants’ last act or omission triggers the fraud statute

31

of repose and since the Engle jury found that the Engle defendants’ fraudulent

concealment conduct occurred within the repose period, we conclude that the Engle

defendants are precluded as a matter of law from asserting the fraud statute of repose

defense in Engle-progeny cases.”).

Put simply, the post-Engle cases from this Court confirm that Engle means

what it said: the Engle defendants are barred from making any argument that their

conduct exonerates them from civil liability. RJR’s implied preemption argument is

therefore barred. RJR’s Petition fails at the very outset, and this Court need go no

further to resolve this appeal. Indeed, under established principles of judicial

restraint, it would be inappropriate to do so. In re Holder, 945 So. 2d 1130, 1133 (Fla.

2006) (“Of course, we have long subscribed to a principle of judicial restraint by

which we avoid considering a constitutional question when the case can be decided

on nonconstitutional grounds.”). Preemption, rooted in the Supremacy Clause, is a

constitutional question easily avoided here because it is barred by res judicata.

B. There is No Reason for the Court to Revisit Douglas.

In Douglas, this Court permitted an Engle progeny plaintiff to recover based

on his strict liability claim. Douglas, 110 So. 3d at 422 (“Applying our decision in

Engle, we answer the certified question in the negative and approve the result of the

Second District’s decision affirming the general verdict for the plaintiff based on

32

strict liability.”) (emphasis supplied). The Court reached this conclusion in the face

of RJR’s argument that Mr. Douglas’s strict liability claim was preempted–precisely

the same argument RJR presents today. This is from RJR’s merits brief in Douglas:

[T]he Phase I findings cannot be read to establish that all cigarettes areinherently defective because that result would be preempted by federallaw, which “foreclose[s] the removal of tobacco products from themarket.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,137 (2000); see also 21 U.S.C. § 387g(d)(3) (prohibiting the FDA frombanning all cigarettes). Thus, in Liggettt Group, Inc. v. Davis, 973 So.2d 467 (Fla. 4th DCA 2007), rev. dismissed, 997 So. 2d 400 (Fla. 2008),the Fourth District Court of Appeal held that both Florida law andfederal law prevented a plaintiff from recovering on a negligence claimthat would have held Liggettt “liable for continuing to manufacturecigarettes” after it learned of smoking's health risks because the “claimwould necessitate all manufacturers from refraining from producingcigarettes.” Id. at 472, 473. Class members therefore cannot invoke thePhase I findings to establish that defendants’ cigarettes are defectivesimply because, due to the inherent characteristics of all tobacco, theyare addictive and cause disease.

RJR’s Brief in Douglas, 2012 WL 3078033, *33-34 n.7 (Fla. May 30, 2012). Then

RJR repeated the argument again. Id. at *37-*38 (“[T]he jury's finding that ‘smoking

cigarettes manufactured by one or more of the Defendants [was] a legal cause of

Charlotte Douglas’ death’ . . . premised liability on nothing more than the jury’s

finding that Mrs. Douglas’s injuries were caused by cigarettes–a legal product that

Congress has prohibited the States from banning. See Brown & Williamson, 529 U.S.

at 137.”). And then a third time. RJR’s Reply Brief in Douglas, 2012 WL 3078034,

*1 (Fla. June 18, 2012) (“[P]laintiff’s across-the-board defect theory is foreclosed by

33

Florida law and preempted by federal law because it would impose liability based on

inherent qualities of tobacco–and thus forbid the sale of all tobacco products. FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137 (2000); Liggettt Group,

Inc. v. Davis, 973 So. 2d 467, 471-73 (Fla. 4th DCA 2007).”).

That argument, which did not prevail in Douglas, is the exact same argument

RJR has presented today in this appeal. RJR does not dispute this reality, but argues

instead (Brief at 32) that its implied preemption argument in Douglas was “briefly

mentioned . . . in a single footnote of a 50-page merits brief[.]” As we have just

documented, that characterization is simply not true. In reality, RJR re-stated the

implied preemption argument at least three separate times in its Douglas briefs. 8

True, the Douglas opinion does not explicitly mention implied preemption, but

that misses the broader point. The point is that RJR made this Court perfectly aware

of the implied preemption argument in Douglas, and the Court nonetheless affirmed

the strict liability judgment in Mr. Douglas’s favor. Nothing has changed since then9

RJR says (Brief at 32-33) that in Douglas it was not raising implied preemption “as8/

an independent basis for relief” but merely “as one of many considerationsreinforcing their due process argument.” But this is no different from the “head-we-win, tails-you-lose” argument RJR is making today. See Brief at 46 (arguing that“due process and implied preemption present opposite sides of the same coin”).

Dozens of times post-Douglas, Florida’s appellate courts have affirmed a jury’s9/

liability verdict against an Engle defendant. If RJR’s argument about impliedpreemption were correct, those affirmances could not have occurred. It strainscredulity to believe that the Engle defendants, after specifically mentioning implied

34

to make Mr. Marotta’s case come out any differently.

III. RJR’S IMPLIED PREEMPTION ARGUMENT IS WITHOUT MERIT.

If the Court decides to go further than necessary by addressing RJR’s implied

preemption argument on the merits, that argument is plainly wrong anyhow. It is

predicated on a false premise, it ignores what Congress has actually said, it misreads

decades of case law, and it fundamentally misapprehends the nature of dual

sovereignty in our Federalist system.

A. RJR’s Implied Preemption Argument Fails Because it is Premised on the“All Cigarettes Myth”.

As we documented supra pp. 3-11, the Engle class never sought to impose

liability on the theory that “all cigarettes are defective.” The limited universe of

Engle liability is not merely, as RJR has asserted, limits on “the number of

plaintiffs”–there are limits on the kind of cigarettes, plus limits on the specific

producers of those limited class of cigarettes, plus temporal limits. A simple Venn

diagram would show that most Florida sales of cigarettes could not and have not been

affected in any way by Engle–and indeed RJR has continued to sell cigarettes in

Florida up to this very day, without a whiff of any liability from Engle for those

preemption three separate times in Douglas, somehow neglected to raise thatsupposedly “winning” defense in any of the dozens of post-Douglas appeals.

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sales.10

In Mr. Marotta’s trial, as in all Engle progeny trials, from start to finish, the

Engle findings have applied only to those smokers who became addicted, and as a

result of that addiction, smoked long enough and in sufficient quantities to get cancer,

COPD, or one of the other enumerated diseases identified in Engle. Their addiction

was due to the unreasonable dangerous design of the Engle defendants’ cigarettes;

had those defendants instead sold cigarettes based on available alternative designs or

designs that were not deliberately manipulated to ensure addiction, smokers like Mr.

Marotta would have avoided addiction and injury. The theory of liability is worlds

apart from RJR’s caricature of “a complete ban on all cigarettes.” Florida has not

RJR implicitly concedes that Engle does not encompass the sale of all cigarettes10/

when it argues (Brief at p.35) that the Engle liability theory encompasses manycigarettes. According to RJR, “all cigarettes contain some amount of nicotine; theEngle defendants included all of the leading United States cigarettes manufacturers;and the times at issue spanned some four decades.” Id. (emphases ours). We haveitalicized RJR’s uses of the word “all” here because those references are not correct. RJR would have this Court ignore the reality that Engle applies only to cigarettes (1)that contain addictive levels of nicotine (recall that the Engle defendants could, andindeed did, market cigarettes with no or non-addictive levels of nicotine, but thosecigarettes didn’t sell well because smokers didn’t become addicted, and recall alsothat any smoker not addicted to nicotine is by definition not an Engle class member);(2) that were designed and marketed by only some of the leading U.S. manufacturers,and in fact many of the leading brands were not included as Engle defendants, andone named defendant, Brooke Group, was partially exonerated in Engle; and (3) thatwere designed and marketed during a limited time frame to a limited class of smokers. That the Engle findings apply to a significant number of cigarettes underscores onlythat the Engle defendants sold a lot of defective cigarettes to Engle class members.

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banned cigarettes nor imposed any sort of across-the-board civil liability upon all

tobacco manufacturers; indeed cigarettes remain widely available across Florida, just

as always. RJR’s implied preemption argument thus fails from the very outset.

B. The Federal Statutes Do Not Support Implied Preemption Here.

RJR’s argument also ignores what Congress has actually said–and has

steadfastly refrained from saying. What actual federal law is RJR talking about that

is supposedly impeded or impaired, such that it has preclusive effect over well-

established Florida tort law? To this question, RJR barely offers an answer.

The best RJR can muster is not any particular Congressional enactment but

instead a 9-word phrase clipped from a court decision, where the U.S. Supreme Court

mentioned that Congress had “foreclosed the removal of tobacco products from the

market.” B&W, 529 U.S. at 138-39. Our factual recitation already explained how this

clipped dicta from B&W, a case about the limits of administrative agency authority,

is inapplicable here. Supra at 16-17. B&W was not even a federal preemption case,

and it has nothing to do with the sovereign authority of the States, who do not need

any permission slip from Congress to protect their citizens through State tort law.

Berger, 2016 WL 2593841 at *8 (“Although the federal government has chosen to

regulate aspects of the cigarette industry while stopping itself short of banning

cigarettes, it did not intend to force the states to accept that cigarettes must remain on

37

their markets. Because I cannot infer such a heavy-handed intent from Congress’s

enactments over the years, I do not conclude that Engle product liability actions

‘stand as an obstacle’ to the objectives of Congress.”) (italics in original).11

RJR acknowledges that a court considering an assertion of preemption “must

first ascertain the nature of the federal interest” (Brief at 14), and further concedes

that there is no particular federal statute that expressly preempts a strict liability tort

suit–so from what actual source does RJR seek to ascertain this federal interest?

Instead of pointing to any federal statute, RJR posits that this Court should infer what

Congress would want from a mosaic of different federal statutes, enacted over a span

of 40 years. And the full extent of RJR’s “analysis” of this collection of federal

statutes is to list them in a footnote (Brief at 16 n.2), without more. No text of any

of these statutes, no attempt to ascertain the nature of the federal interest protected by

any of them, no analysis–nothing. This exposes the flimsiness of RJR’s argument.

In B&W, RJR argued that federal regulation of cigarettes would impermissibly11/

intrude upon the States’ power to safeguard their citizens’ health and welfare. SeeRJR’s Merits Brief in B&W, 1999 WL 712566, *44-45 (U.S. Sept. 10, 1999) (arguingthat the marketing and sale of tobacco products is “an area of local activityhistorically regulated by the States exclusively” and “and these measures have beenupheld as a proper exercise of the police power.”). Having successfully persuadedthe U.S. Supreme Court to adopt this view, 529 U.S. at 143, RJR should be estoppedfrom arguing the opposite here. Today RJR tries to tap-dance away from itsinconsistent positions by asserting its B&W brief was addressing state regulations thatwere not outright bans on cigarettes. But of course Engle is not an outright ban either.

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However, the U.S. Supreme Court has held many times that “the absence of

regulation [does not] itself constitute [ ] regulation.” Freightliner Corp. v. Myrick,

514 U.S. 280, 286 (1995). “There is no federal preemption in vacuo, without a

constitutional text or federal statute to assert it.” Puerto Rico Dept’t of Consumer

Affairs v. Isla Petro. Co., 485 U.S. 495, 503-04 (1988). Were it otherwise, “deliberate

federal inaction could always imply pre-emption, which cannot be.” Id. at 503.

Even when a defendant seeks to overcome the presumption against preemption

based on implied preemption–as opposed to express preemption–express preemption

clauses are nonetheless the best evidence of Congress’s preemptive intent. See Wyeth

v. Levine, 555 U.S. 555, 574-75 (2009); Riegel v. Medtronic, Inc., 552 U.S. 312, 327

(2008). Here, Congress has never said that a State cannot impose civil liability on a

tobacco company that injures its consumer via a defective product. Nor does that

gestalt message somehow emanate from a constellation of statutes over 40 years.

Quite the contrary. Congress’s tobacco legislation over the span of decades has

always followed the same basic pattern–limited preemption clauses directed to

disclosures and advertising only, along with savings clauses specifically preserving

traditional State common law remedies for anything else. Preemption is, at bottom,

a form of statutory analysis, so courts have typically used ordinary canons of

construction, including the familiar one that where Congress has preempted or

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regulated only certain matters, the inference arises that Congress did not intend to

preempt other matters. Cipollone, 505 U.S. at 517 (“Such reasoning is a variant of

the familiar principle of expression unius est exclusio alterius: Congress’ enactment

of a provision defining the pre-emptive reach of a statute implies that matters beyond

that reach are not pre-empted.”); Freightliner, 514 U.S. at 288 (citing Cipollone).

For example, in the 1965 Labeling Act, and then its 1969 amendments (The

Public Health Cigarette Smoking Act of 1969) Congress required cigarette ads to

include specified warnings and preempted state laws which (1) impose additional

statements on the product packages themselves, 15 U.S.C. §1334(a); or (2) impose

requirements or prohibitions “with respect to the advertising or promotion of any

cigarettes” in confirming packages. Id., §1334(b). But in carefully circumscribing

the Labeling Act’s preemptive scope to “advertising or promotion,” Congress left

most tort claims unaffected. See Cipollone, 505 U.S. at 517-18.12

None of the other statutes RJR lists in its footnote (Brief at 16 n.2) supports a12/

finding of preemption here. The Alcohol and Drug Abuse Amendments of 1983, Pub.L. No. 98-24, 97 Stat. 175 (1983), merely required the HHS Secretary to report everythree years to Congress on “current research findings made with respect to . . . theaddictive property of tobacco.” There is no regulation of tobacco sales and nomention of preemption. The Comprehensive Smoking Education Act, Pub. L. No.98-474, 98 Stat. 2200 (1984), updated some of the cigarette warnings and requiredthe Secretary of HHS to conduct additional research and outreach on tobacco-relatedhealth dangers. Rather than preempt state tobacco laws, it acknowledged their robustpresence: the law required the Secretary to “compile and make available informationon State and local laws relating to the use and consumption of cigarettes.” Id. TheAlcohol, Drug Abuse and Mental Health Administration Reorganization Act, Pub. L.

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Subsequent legislation explicitly preserved traditional state tort remedies. See

Comprehensive Smokeless Tobacco Education Act of 1986, 15 U.S.C. § 4406(c)

(“Nothing in this Act shall relieve any person from liability at common law or under

State statutory law to any other person.”); Family Smoking Prevention and Tobacco

Control Act of 2009, 21 U.S.C. § 387p(a)(1) & (b) (“nothing in this subchapter . . .

shall be construed to limit the authority of . . . a State . . . to . . . enforce any law . . .

with respect to tobacco products . . . including a law . . . prohibiting the sale . . . or use

of tobacco products by individuals of any age.”).

RJR says (Brief at 29-30) that these savings clauses, by their individual terms,

do not apply to Engle progeny cases, either because of their effective dates or their

specificity as to smokeless tobacco. But this misses the broader point. The point is

that, over a span of many decades, when Congress has legislated about tobacco, it has

repeatedly stated in clear terms that States remained perfectly free to impose civil

liability upon tobacco companies for harms caused, so long as the State was not

regulating labeling or advertising regarding the health effects of smoking. These

Congressional savings clauses did not gift the States some new regulatory power;

rather, they demonstrate Congress’s intent to maintain and preserve the inherent right

No. 102-321, § 202, 106 Stat. 394 (1992), established federal block grants to fundprograms targeted at reducing youth tobacco use. Grants were contingent on statesmaking tobacco sales illegal to those under 18 years old. None of these laws, aloneor in concert, comes anywhere near preempting a State’s traditional tort claims.

41

the sovereign States had possessed all along. See Metro. Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 756 (1985) (“States traditionally have had great latitude

under their police powers to legislate as to the protection of the lives, limbs, health,

comfort, and quiet of all persons.”)(internal quotations omitted).

C. The Tobacco Case Law on Preemption is Squarely Against RJR.

For over a century, the U.S Supreme Court has underscored the point that

States are not precluded from regulating tobacco. Perhaps the earliest articulation of

the States’ authority in this realm was Austin v. Tennessee, 179 U.S. 343, 348-49

(1900), where the Supreme Court held that States retain the core “police power, . . .

dictated by a genuine regard for the preservation of the public health or safety” within

their own jurisdictions to “say how far they [cigarettes] may be sold, or to prohibit

their sale entirely[.]” In other words, even though Engle progeny suits are very far

from a “complete ban on all cigarettes” (as RJR presently argues), Florida would be

within its sovereign authority if indeed it wanted to ban, or even criminalize, the sale

of cigarettes within Florida–just as fifteen states elected to do in the late nineteenth

and early twentieth century. Robert N. Proctor, Why ban the sale of cigarettes? The

case for abolition, TOBACCO CONTROL, 22:i27 (2013). 13

RJR responds to the Fourth District’s example of “dry counties” existing despite13/

federal regulation of alcohol, Marotta, 182 So. 3d at 833, by pointing out (Brief at 29)that the 21 Amendment expressly allows such local bans. But this misses the point. st

There are a host of examples the court could have mentioned that prove the same

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When Congress enacted the Labeling Act of 1965, that did not preempt a

State’s ability to regulate the sale of cigarettes. Rather, as the Supreme Court

emphasized, it merely preempted State labeling or advertising restrictions regarding

the health effects of smoking–nothing more. Cipollone, 505 U.S. at 523 (“the

preemptive scope of § 5(b) . . . does not generally preempt ‘state-law obligations to

avoid marketing cigarettes with manufacturing defects or to use a demonstrably safer

alternative design for cigarettes.’”); Altria Group v. Good, 555 U.S. 70, 79 (2008). 14

Nor can RJR’s argument find any support from Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000), which involved an obvious conflict between federal and state

point, i.e., where the federal government regulates a product but some states haveexercised their authority to completely ban it. E.g., Pickelman v. Mich. State Police,31 Fed. App’x 298 (6th Cir. 2002) (fireworks); Viva! Int’l Voice for Animals v.Adidas Promo. Retail Ops., 162 P.3d 569 (Cal. 2007) (kangaroos);ChinatownNeighborhood Assn. v. Harris, 794 F.3d 1136 (9th Cir. 2015) (shark fins); In reMethyl Tertiary Butyl Ether Prods. Liab. Litig., 725 F.3d 65 (2d Cir. 2013) (MBTE).

RJR argues (Brief at 22-33) that some non-Engle strict liability and negligence14/

claims would not be preempted–those based on a “narrower” theory of defect thatattacked specific features of a particular cigarette brand. But none of the cases RJRcites actually supports RJR’s point. In PM v. Arnitz, 933 So. 2d 693, 695 (Fla. 2dDCA 2006), the plaintiff’s trial proof included broad contentions, similar to those ofthe Engle class, that were directed to the fact that the defendant made its cigarettesmore appealing and addictive. Similarly, the plaintiff in Ferlanti v. Liggett Group.Inc., 929 So. 2d 1172, 1173 (Fla. 4th DCA 2006), alleged the defendant “soldcigarettes containing ‘artificially high levels of nicotine,’ and that it failed to design‘comparable cigarettes that reduced or eliminated the levels of tar, nicotine, and otherharmful substances.” The plaintiff in Conley v. RJR, 286 F. Supp. 2d 1097, 1109(N.D. Cal. 2002)–unlike the Engle class–identified in its pleading “no such allegedlydefective design feature” other than that “they were tobacco products.”

43

law. NHTSA expressly allowed auto manufacturers to choose between several

alternative safety designs, including airbags or automatic seatbelts, id. at 886, but the

plaintiff claimed the common law rigidly demanded airbags. Id. at 880. Thus his

claim “actually conflict[ed]” with the federal regulation. Id. at 874. That is nothing

like the present situation. Congress has never said–via an individual statute or even

a web of them–that tobacco companies have the option to make some cigarettes that

are unreasonably dangerous and that defy their consumers’ reasonable expectations.

Rather, this case is closer to Sprietsma v. Mercury Marine, 537 U.S. 51 (2002),

where the Coast Guard studied the dangerousness of boat outbard motor propellers

for over one year but ultimately decided to “take no regulatory action” on them. The

defendant argued the plaintiff’s strict liability claim was impliedly preempted because

the federal government could have banned the product but did not. The U.S. Supreme

Court held: “It is quite wrong to view that decision as the functional equivalent of a

regulation prohibiting all States and their political subdivisions from adopting such

a regulation” because a decision not to ban a product at the federal level “is fully

consistent with an intent to preserve state regulatory authority[.]” Id. at 65.

And even in situations where there is an extensive federal regulatory scheme,

such as prescription drug regulations, a lack of a Congressional ban of a product does

not impliedly preempt state tort claims. For example, in Wyeth, the plaintiff claimed

44

injury from Phenergan; the FDA knew the drug’s risks but declined to ban it. 555

U.S. at 561-62. The U.S. Supreme Court held that absence of a federal ban weighed

heavily against preemption: “If Congress thought state-law suits posed an obstacle

to its objectives, it surely would have enacted an express pre-emption provision at

some point during the FDCA’s 70–year history. ...Its silence on the issue, coupled

with its certain awareness of the prevalence of state tort litigation, is powerful

evidence that Congress did not intend FDA oversight to be the exclusive means of

ensuring drug safety and effectiveness.” Id. at 574-75. The same is true here.

Nor do any of the tobacco cases emanating from Florida support RJR’s implied

preemption argument. We have already explained supra at pp.17-19 how RJR has

mis-stated the holdings of the Fourth District’s opinion in Davis (a non-Engle case

where the appellate court specifically permitted the design defect claim, 973 So. 2d

at 472), and also the Eleventh Circuit’s opinion in Walker (where the Eleventh Circuit

held that Douglas foreclosed the argument, asserted again by RJR here, that “it is

impossible to tell whether the jury determined that it acted wrongfully in connection

with some or all of its brands of cigarettes,” Walker 734 F.3d at 1289). Which means

that RJR’s only purported “authority” is the now-vacated panel opinion in Graham.15

RJR presents a list (Brief at 20-22) of “many federal district courts” which RJR15/

asserts “agree with Graham, Engle, and Davis.” But none of those cases involveEngle negligence or strict liability claims, which just underscores the wisdom of theFourth District’s statement in the case at bar that “not all tobacco claims are

45

However, even if Graham had not been vacated, it would not apply here. First,

as we documented to the Fourth District below, the plaintiff in Graham inexplicably

failed to argue to the Eleventh Circuit panel that RJR’s implied preemption argument

was barred by the res judicata effect of Engle, and had already been disposed of by

Douglas. That strategic oversight by Mr. Graham is inexplicable, but it may help16

explain how the Graham panel began to go astray. In any event, it renders Graham

wholly distinguishable from the case at bar. Second, the analysis of the now-vacated

Graham panel opinion widely misses the mark. On this point, we would be hard

pressed to improve upon the careful, cogent logic of the recent opinion in Berger,

2016 WL 2593841. Berger squarely rejects the exact implied preemption arguments

that RJR is presenting to this Court today, and it lays bare the numerous flaws in the

vacated panel opinion in Graham. We would respectfully encourage this Court to

begin its analysis of the implied preemption issue on the merits–if this Court sees the

preempted, only certain ones” and “[w]hether a state law claim is preempted isdependent on the exact nature of the claim” Marotta, 182 So. 3d at 831 (quotationmarks and citations omitted). It should go without saying that many courts in non-Engle cases have rejected the tobacco companies’ implied preemption arguments andrecognized the applicability of state products liability claims. E.g., Spain v. B&W,363 F.3d 1183 (11th Cir. 2004); Boerner v. B&W, 394 F.3d 594 (8th Cir. 2005);Conley v. RJR, 286 F. Supp. 2d 1097 (N.D. Cal. 2002); Richardson v. RJR, 578 F.Supp. 2d 1073 (E.D. Wisc. 2008); Izzarelli v. RJR, 806 F. Supp. 2d 516 (D. Conn.2011); Bougpoulos v. Altria Group, Inc., 954 F. Supp. 3d 54 (D. N.H. 2013).

Mr.Graham’s appellate briefs were filed and made part of the record in this case.16/

46

need to reach its merits at all–by reading the Berger opinion first.

D. RJR’s Argument Contravenes Established Principles of Federalism and Dual Sovereignty.

RJR’s view of implied preemption would strip the States of their sovereign

authority to protect their citizens, absent an explicit permission slip from Congress.

That implicates “far greater interference with state legal remedies, producing a serious

intrusion into state sovereignty while simultaneously wiping out the possibility of

remedy for . . . alleged injuries.” Medtronic, Inc. v. Lohr, 518 U.S, 470, 488 (1996).

Under RJR’s rationale, every state law cause of action against “inherently

dangerous” pharmaceuticals would be preempted, no matter what the defendant’s

specific conduct actually was. Contra Wyeth, 555 U.S. 555. An “inherently

dangerous” pesticide would be immunized from suit, even if it destroyed a farmer’s

crops. Contra Bates v. Dow Agrosiences, LLC, 544 U.S. 431 (2005). A person

injured by an “inherently defective” seatbelt could not assert a claim. Contra

Williamson v. Mazda Motors of Am., Inc., 562 U.S 323 (2011). The net effect: the17

historic balance between Federal/State relations would be upended, undermining the

RJR’s underlying suggestion–that Congress somehow intended for these tobacco17/

companies to be free from civil liability for addicting and poisoning their customersby manufacturing and marketing defective cigarettes–is refuted by the fact that thefederal government itself has successfully sued many of these companies for muchof the same conduct. U.S. v. PM, 449 F. Supp. 2d. 1 (D.D.C. 2006), aff’d in part, 566F.3d 1095 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 3501 (2010).

47

autonomy that allows states to serve a valuable role “as laboratories for

experimentation to devise various solutions where the best solution is far from clear.”

United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring).

E. RJR is Not Entitled to A New Trial

RJR’s related argument–that it is entitled to a new trial based on an erroneous

jury instruction–fails as well. RJR asserts (Brief at 42-43) it was reversible error for

the trial court not to instruct the jury that RJR “cannot be liable merely for

manufacturing, selling, or advertising cigarettes.” This is just a variant of the “All

Cigarettes Myth” that undergirds RJR’s implied preemption argument, and it fails for

many of the reasons already expressed. But it also fails for several additional reasons.

First, the trial court had already agreed to include an (irrelevant) jury

instruction, at RJR’s request, which instructed: “The manufacture, advertisement and

sale of cigarettes are lawful activities.” Tr. Vol. 19 at 2580. Thus, RJR’s additional

requested instruction was, at best, redundant. See PM v. Tullo, 121 So. 3d 595, 600

(Fla. 4th DCA 2013) (noting “the well-established rule that a trial court’s refusal to

give requested instructions on issues adequately covered by the court’s instructions

is not error”). In any event, Engle having already “resolved all elements of the claims

that had anything to do with the Engle defendants’ cigarettes or their conduct,”

Douglas, 110 So. 3d at 432, there is no reason why juries in progeny trials should be

48

instructed that selling cigarettes is legal.

Second, assuming, arguendo, RJR’s requested instruction accurately stated the

law, that does not mean the trial court was obligated to give it here. “A trial court is

accorded broad discretion in formulating appropriate jury instructions and its decision

should not be reversed unless the error complained of resulted in a miscarriage of

justice or the instruction was reasonably calculated to confuse or mislead the jury.”

Barton Protect. Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999).

Third, there is simply no reason why RJR’s instruction was “necessary” here,

especially considering the court had already included an instruction saying much the

same thing. And there was certainly nothing misleading about the instructions that

the jury actually did receive. RJR says (Brief at 44) the judge was required to “finish

the thought,” but there is no such legal requirement. Trial judges are afforded

discretion in their phraseology of jury instructions for this very reason. Indeed, giving

RJR’s requested instruction might well have led to juror confusion, rather clarifying.

There was no error at all here, and certainly no abuse of discretion.

IV. RJR’s DUE PROCESS ARGUMENT IS WITHOUT MERIT.

As Engle defendants always do, RJR asserts that application of the Engle

findings violates due process. RJR acknowledges Douglas squarely rejected this, but

says (Brief at 46) that “subsequent decisions have cast doubt” on the soundness of

that decision. Not so–nothing has changed. Despite RJR’s clipped quote from

49

Walker, that ruling did not cast doubt on the soundness of Douglas. Walker merely

noted that while the labels for preclusion doctrines may be used differently in state

and federal court, the substance is not: “Labeling the relevant doctrine as claim

preclusion instead of issue preclusion” may be different in federal court as opposed

to state court, but “in determining what is due process of law, regard must be had to

substance, not to form.” 734 F.3d at 1289. And as for Graham, it is a nullity and is

entirely unpersuasive anyhow for all the reasons previously expressed. It is simply

not true, as RJR suggests (Brief at 46), that suddenly Engle defendants have begun

arguing implied preemption and due process as “opposite sides of the same coin.”

They have been singing this same tune all along, from the trial courts all the way to

the U.S. Supreme Court. The argument has always failed. It should fail again here.

V. THE COURT SHOULD SUMMARILY QUASH AND REMAND SOLELY REGARDING THE CLAIM FOR PUNITIVE DAMAGES.

Soffer made clear that Engle progeny plaintiffs may seek punitive damages on

their non-intentional tort claims, as Mr. Marotta sought in his case. Tr. Vol. 19 at

2551. The Fourth District’s contrary ruling, 182 So. 3d at 831, should be quashed.

CONCLUSION

The Court should summarily quash the Fourth District’s ruling solely as to

punitive damages and remand for proceedings consistent with Soffer. In all other

respects, the Court should uphold the jury’s verdict in Mr. Marotta’s favor.

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Respectfully submitted,

/s/ Richard B. RosenthalRichard B. RosenthalFlorida Bar No. 0184853The Law Offices of Richard B. Rosenthal, P.A.1581 Brickell Avenue, Suite 1408Miami, Florida 33129Tel: (305) 779-6097 / Fax; (305) 779-6095rbr@rosenthalappeals.com

Philip FreidinFreidin Brown, P.A.2 South Biscayne Boulevard, Suite 3100Miami, Florida 33131

Alex AlvarezThe Alvarez Law Firm355 Palermo AvenueMiami, Florida 33134

Randy RosenblumDolan Dobrinsky Rosenblum, LLP2665 South Bayshore Drive, Suite 609Miami, Florida 33133

Robert E. Schack8950 Southwest 74 Court, Suite 1711Miami, Florida 33156

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent

by email this 3rd day of June, 2016 to: Gregory G. Katsas (ggkatsas@jonesday.com);

Eric L. Lundt, Esq. (eric.lundt@sedgwicklaw.com); and Robert C. Weill, Esq.

(robert.weill@sedgwicklaw.com).

/s/ Richard B. RosenthalRichard B. Rosenthal

CERTIFICATE OF COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), counsel for

Respondent hereby certifies that the foregoing brief complies with the applicable

font requirements because it is written in 14-point Times New Roman font.

/s/ Richard B. RosenthalRichard B. Rosenthal

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