BERNICE BROWN, PAUL CHRISTIE, DOROTHY COPELAND, JUANITA COSTON, ALICE COTHERN, ROBERT DENTON, CATHERINE DILLINGHAM, SHARON FERNANDEZ, TONY HARRIS, NADINE HEAD, JOANNE HEFLIN-GILLIS, PEGGY HICKOX, ALONZO JOHNSON, MARY JANE MOSCHINI, HOLLY MURRAY, LORRAINE OLSON, MINNIE REGISTER, JAMES L. SMITH, SR., FONATINE WALLACE, ESTHER WERTH, as Personal Representatives of the estates of Levi Brown, Sharon Christie, Robert Copeland, Troy R. Coston, James A. Cothern, Linda L. Denton, Catherine Dillingham, Sharon Fernandez, Linda Harris, Carson W. Head, Milton Heflin, Benjamin F. Hickox, Willie P. Johnson, Giuliano P. Moschini, Perry Murray, Floyd G. Olson, Jimmy C. Register, Wanette Smith, Robert E. Wallace and Howard Werth, respectively, Plaintiffs-Appellants Cross-Appellees, versus R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown & Williamson Tobacco Corporation and the American Tobacco Company, PHILIP MORRIS USA INC., LORILLARD TOBACCO COMPANY, LORILLARD, INC., foreign corporations, Defendants-Appellees Cross-Appellants.
No. 08-16158
United States Court of Appeals for the Eleventh Circuit
July 22, 2010
D. C. Docket No. 07-00761-CV-J-25HTS; [PUBLISH]
(July 22, 2010)
Before CARNES, HULL and ANDERSON, Circuit Judges.
CARNES, Circuit Judge:
Almost two decades ago, six individuals filed a lawsuit in Florida state court against the major domestic makers of cigarettes and two industry organizations seeking over $100 billion in both compensatory and punitive damages for injuries allegedly caused by smoking. Liggett Grp. Inc. v. Engle, 853 So. 2d 434, 440-41 (Fla. 3d DCA 2003) (Engle II). The plaintiffs asserted claims of “strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress.” Id. at 441. After some wrangling between the parties and an interlocutory appeal to the Third District Court of Appeal, a class was certified composed of “[a]ll Florida citizens and residents,” R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 42 (Fla. 3d DCA 1996) (Engle I), “and their survivors who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle v. Liggett Grp. Inc., 945 So. 2d 1246, 1256 (Fla. 2006) (Engle III). There were estimated to be at least 700,000 class members. Id. at 1258; Engle II, 853 So. 2d at 442.
To manage the class action, the trial court developed a trial plan that had three phases. See Engle III, 945 So. 2d at 1256. Phase I was a year-long trial that involved only “common issues relating . . . to the defendants’ conduct and the
The Engle class came close to running the table—the jury answered “yes” to almost every question put to them. The jury found: (1) that smoking cigarettes causes 20 of 23 listed diseases or medical conditions; (2) that cigarettes containing nicotine are addictive or dependence producing; (3) that the defendants placed cigarettes on the market that were defective and unreasonably dangerous; (4) that the defendants made a false statement of a material fact, either knowing the statement was false or misleading, or being without knowledge as to its truth or falsity, with the intention of misleading smokers; (4a) that the defendants concealed or omitted material information, not otherwise known or available, knowing the material was false and misleading, or failed to disclose a material fact concerning or proving the health effects and/or addictive nature of smoking cigarettes; (5) that the defendants entered into an agreement to misrepresent information relating to the health effects of cigarette smoking, or the addictive nature of smoking cigarettes, with the intention that smokers and members of the public rely to their detriment; (5a) that the defendants entered into an agreement to
In Phase I, however, the jury was not asked whether the class had proven any of its claims; it did not decide if the defendants were liable to anyone on any
Later, in Phase II, the same jury did determine that the defendants’ conduct was the legal cause of three individual class representatives’ injuries. The three were awarded a total of $12.7 million in compensatory damages after their comparative fault was taken into account. Engle III, 945 So. 2d at 1257. The jury also awarded a lump sum of $145 billion in punitive damages to the entire Engle class. Id.
Before Phase III could be conducted, the defendants appealed the verdicts the jury had returned in Phases I and II. Engle II, 853 So. 2d at 441-42; see also Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328, 1332 (M.D. Fla. 2008). The appeal resulted in a Third District Court of Appeal decision that the
The class appealed the Third District Court of Appeal‘s decision to the Florida Supreme Court. That court agreed that the punitive damages award to the class should be reversed, Engle III, 945 So. 2d 1254, and agreed with the reversal of the compensatory damages award to one of the three individual class representatives, id. at 1276. However, the court reinstated the compensatory damages award to the other two class representatives.3 Id. For our purposes
The Florida Supreme Court decided that the trial court had not abused its discretion in certifying the Engle class for Phases I and II but also decided that “continued class action treatment for Phase III of the trial plan [was] not feasible because individualized issues such as legal causation, comparative fault, and damages [would] predominate.” Id. at 1267-68. As for the jury‘s findings in Phase I, the court threw out four of them but determined that the remainder could stand.4 See Engle III, 945 So. 2d at 1255. (We will refer to the findings that were not thrown out by the Florida Supreme Court as the Phase I “approved” findings.) The court then set out where the case should go from there:
The pragmatic solution is to now decertify the class, retaining the jury‘s Phase I findings other than those on the fraud and intentional infliction of emotion distress claims, which involved highly individualized determinations, and the findings on the entitlement to punitive damages questions, which was premature. Class members can choose to initiate individual damages actions and the Phase I common core findings we approved above will have res judicata effect in those trials.
Id. at 1269 (emphasis added). The Florida Supreme Court‘s instruction that the Phase I approved findings have “res judicata effect” is at the heart of this appeal, which resulted from a lawsuit filed in federal district court by some of the former Engle class members.
In their amended complaint, the plaintiffs sought to recover compensatory and punitive damages from the defendants under theories of strict liability, breach of express warranty, breach of implied warranty, civil conspiracy to fraudulently conceal, fraudulent concealment, negligence, and loss of consortium. The plaintiffs asserted the “res judicata effect” of the Engle Phase I approved findings and took the position that the only issues left in the case were “specific causation, apportionment of damages, comparative fault, compensatory damages, entitlement to punitive damages, and punitive damages.” The defendants disagreed and countered by asking the district court for a pre-trial order outlining the preclusive effect that the Phase I approved findings would have in this case. They wanted an
[T]he Phase I findings may prevent a defendant from arguing, inter alia, that it never acted negligently, never engaged in a conspiracy to conceal, or never placed a defective product on the market. In addition, the general findings of Question 1, that cigarette smoking causes various diseases and illnesses and, in a proper circumstance, may be given preclusive effect, prevents the Defendants from denying that cigarette smoking itself has been found to cause, inter alia, aortic aneurysm, bladder cancer, coronary heart disease, and lung cancer.
Id. at 1344 n.25. This is the plaintiffs’ interlocutory appeal of that pretrial order. See
II.
The district court determined that allowing the Engle Phase I approved findings to establish elements of the plaintiffs’ causes of action would violate the defendants’ due process rights. See Brown, 576 F. Supp. 2d at 1344-46. The plaintiffs contend that under the Rooker-Feldman doctrine the district court lacked jurisdiction to determine whether applying the Florida Supreme Court‘s decision
The Rooker-Feldman doctrine is jurisdictional. It “prevents . . . lower federal courts from exercising jurisdiction over cases brought by ‘state-court losers’ challenging ‘state-court judgments rendered before the district court proceedings commenced.‘” Lance v. Dennis, 546 U.S. 459, 460, 126 S.Ct. 1198, 1199 (2006) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 1521-22 (2005)). The doctrine bars the losing party in state court “from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party‘s claim that the state judgment itself violates the loser‘s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 2654 (1994).
Recently, in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517 (2005), the Supreme Court clarified the doctrine and narrowed its application, noting that “the doctrine has sometimes been construed [by lower federal courts] to extend far beyond the contours of the Rooker and Feldman cases.” Id. at 283, 125 S.Ct. at 1521. The Court held that it should be
Although the defendants before us were the “state-court losers” in Engle Phase I, where the approved findings were entered, they did not bring this lawsuit. It was brought by the plaintiffs who were the state-court winners. The Rooker-Feldman doctrine only applies when the federal plaintiff is the “state-court loser.”5 See Exxon Mobil, 544 U.S. at 284, 125 S.Ct. at 1521-22. The plaintiffs argue that the state-court-loser-as-plaintiff procedural model is simply the usual fact pattern, not a requirement for application of the doctrine. They point out that
In Exxon Mobil the Court could scarcely have been clearer in stating that the Rooker-Feldman doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. (emphasis added). We will not ignore the Supreme Court‘s instruction and apply the doctrine to a case like this one where the federal plaintiff
III.
Under the Full Faith and Credit Act,
In Engle III, as we have already noted, the Florida Supreme Court directed that the Phase I approved findings were to have “res judicata effect” in future trials involving former class members. See Engle III, 945 So. 2d at 1269 (“Class members can choose to initiate individual damages actions and the Phase I
The term “res judicata” is translated from the Latin as “a thing adjudicated,” but it has more than one meaning. See Black‘s Law Dictionary 1336 (8th ed. 2004). It can refer specifically to claim preclusion or it can refer generally to the preclusive effect of earlier litigation. See Wacaster v. Wacaster, 220 So. 2d 914, 915 (Fla. 4th DCA 1969) (“Res judicata is a term which has been given a good many different meanings. Current usage apparently gives it a broad meaning which covers all the various ways in which a judgment in one action will have a binding effect in another.“). When the term has that second meaning, it encompasses claim preclusion and issue preclusion, and it can mean either or both. See Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171 (2008) (“The preclusive effect of a judgment is defined by claim preclusion and issue
Claim preclusion “bars a subsequent action between the same parties on the same cause of action.” State v. McBride, 848 So. 2d 287, 290 (Fla. 2003); see also Pumo v. Pumo, 405 So. 2d 224, 226 (Fla. 3d DCA 1981) (“Under the doctrine of res judicata, a final judgment or decree on the merits by a court of competent jurisdiction constitutes an absolute bar to a subsequent suit on the same cause of action and is conclusive of all issues which were raised or could have been raised in the action.“); Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So. 2d 860, 862 (Fla. 4th DCA 1972) (same). The doctrine applies under Florida law “when all four of the following conditions are present: (1) identity of the thing
Issue preclusion, by contrast, operates more narrowly to prevent re-litigation of issues that have already been decided between the parties in an earlier lawsuit. See Mortg. Elec. Registration Sys., Inc. v. Badra, 991 So. 2d 1037, 1039 (Fla. 4th DCA 2008) (stating that issue preclusion “precludes re-litigating an issue where the same issue has been fully litigated by the same parties or their privies, and a final decision has been rendered by a court“); State Dep‘t of Revenue v. Ferguson, 673 So. 2d 920, 922 (Fla. 2d DCA 1996) (“The doctrine of collateral estoppel prevents identical parties from relitigating issues that have previously been decided between them.“); Rohan v. Trakker Maps, Inc., 633 So. 2d 1176, 1177 (Fla. 3d DCA 1994) (“The application of collateral estoppel prevents the parties in a second suit from litigating those points in question which were actually adjudicated in the first suit.“); Liberty Mut. Ins. Co. v. Jozwick, 204 So. 2d 216, 218 (Fla. 3d DCA 1967) (“Estoppel by judgment [or issue preclusion] prevents parties from litigating in a second suit common issues which were actually adjudicated in a prior action.“).
When those elements are present, issue preclusion can be applied offensively or defensively. See E.C. v. Katz, 731 So. 2d 1268, 1269 (Fla. 1999) (recognizing that Florida law requires mutuality of parties for both defensive and offensive use of issue preclusion); Massey v. David, 831 So. 2d 226, 233 (Fla. 1st DCA 2002) (same); Zeidwig v. Ward, 548 So. 2d 209, 212 (Fla. 1989) (offensive use occurs when a plaintiff seeks to prevent a defendant from re-litigating an
In Phase I the same parties as in the present lawsuit litigated “common issues” relating to “the defendants’ conduct and the general health effects of smoking.” Engle III, 945 So. 2d at 1256; see also id. at 1263 (noting that the Phase I jury “did not determine whether the defendants were liable to anyone” (quotation marks omitted)); id. at 1267-68 (explaining that the Engle class must be prospectively decertified because “individualized issues such as legal causation, comparative fault, and damages [would] predominate“). “The idea underlying [claim preclusion] is that if a matter has already been decided, the [litigant] has already had his or her day in court, and for purposes of judicial economy, that matter generally will not be reexamined . . . .” Topps v. State, 865 So. 2d 1253, 1254-55 (Fla. 2004); see also Denson v. State, 775 So. 2d 288, 290 n.3 (Fla. 2000) (per curiam) (same). The defendants had their day in court on the “common issues” of fact that were decided in Phase I, and later approved by the Florida Supreme Court, but they did not have their day in court on the broader questions involving the causes of action the class asserted, which were left undecided. See Engle III, 945 So. 2d at 1263.
As we have already explained, issue preclusion only operates to prevent the re-litigation of issues that were decided, or “actually adjudicated,” between the
Florida courts have enforced the “actually adjudicated” requirement, see Gordon, 59 So. 2d at 44, with rigor. Issue preclusive effect is not given to issues which could have, but may not have, been decided in an earlier lawsuit between the parties. See, e.g., Acadia Partners, L.P. v. Tompkins, 673 So. 2d 487, 488-89 (Fla. 5th DCA 1996) (holding that jury‘s verdict “for [the defendant]” in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense);
Applying the “actually adjudicated” requirement to this case, the Phase I approved findings may not be used to establish facts that were not actually decided by the jury. The plaintiffs, who want the benefit of the findings in this case, do not disagree with that proposition. And, of course, neither do the defendants. In fact, the defendants contend that using the findings to establish facts that were not decided by the jury would violate their due process rights. We need not decide that constitutional issue, because under Florida law the findings could not be used
For example, Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes,” for every time period for every defendant except Brooke Group, Ltd., Inc.8 Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type
In the pre-trial order that is the subject of this interlocutory appeal, the district court decided that the Phase I approved findings may not be used to establish any element of the plaintiffs’ causes of action. Brown, 576 F. Supp. 2d at 1348. The district court reached that conclusion without first giving preclusive effect to the Phase I approved findings. See id. The Phase I approved findings have to be given preclusive effect; they do establish some facts that are relevant to this litigation. Otherwise, the Florida Supreme Court‘s statement in Engle III that the Phase I approved findings were to have “res judicata effect” in trials involving former class members would be meaningless. See Engle III, 945 So. 2d at 1254, 1269, 1277.
We leave it to the district court to apply Florida law as we have outlined it and decide in the first instance precisely what facts are established when preclusive effect is given to the approved findings. It is for the district court to
Until the scope of the factual issues decided in the Phase I approved findings is determined, it is premature to address whether those findings by themselves establish any elements of the plaintiffs’ claims. Only after Florida law is properly applied to determine the scope of the facts established by the approved findings can it be decided which, if any, elements of the claims are established by them. Accordingly, the district court‘s ruling that “the findings may not be given preclusive effect in any proceeding to establish any element of an Engle Plaintiff‘s claim,” cannot stand, at least not at this time. That finishes our consideration of the case. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1255-56 (11th Cir. 2004) (“[T]he scope of appellate review is not limited to the precise question certified by the district court because the district court‘s order, not the certified question, is brought before the court. . . . [W]e have the power to review an entire order, either to consider a question different from the one certified as controlling
IV.
The district court‘s order that was certified for interlocutory appeal is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
I concur in Judge Carnes’ opinion for the court. Although plaintiffs failed to persuade the district court at this stage of the litigation that they could show with the requisite degree of certainty that all facts necessary to establish any particular element of any plaintiff‘s cause of action had been actually adjudicated and actually decided by the Phase I jury,1 I agree that it would be premature at this stage of the litigation to rule flatly that the Phase I findings cannot be given preclusive effect in these proceedings to contribute to or establish any element of any plaintiff‘s claim. I agree that it would be premature at this stage of the litigation to conclude that later in this litigation plaintiffs will be unable to use some Phase I findings to contribute to or establish some particular element of a plaintiff‘s cause of action, perhaps in conjunction with other facts proved in this litigation. For example, see footnote 10 of Judge Carnes’ opinion for the court.