11th Circuit Court of Appeals vacated decision that would have eliminated preclusive effect of Engle Jury Phase I findings for progeny cases in federal court
July 22nd, 2010
The 11th Circuit Court of Appeals today, in Brown et al. v. RJ Reynolds Tobacco Co., et al., vacated an August 28, 2008 order by U.S. District Court Judge Howard Schlesinger which had totally eliminated the preclusive effect of the Engle jury’s Phase I findings.
Now, with that roadblock having been cleared, federal court plaintiffs in Engle progeny cases have received a green light to have their cases proceed to trial. While the tobacco companies are today proclaiming “victory,” the order that would have given them an actual victory has, instead, been entirely vacated.
Essentially, the plaintiffs will need to demonstrate to the trial court, through the record of the Engle Phase I, that the jurors were truly making generalized findings because the defendants’ misconduct was rampant and continuous. For example, see the part of the 1999 jury’s verdict sheet dealing with strict liability:
Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?
Please answer “Yes” of “No” as to each Defendant, below. If you answer “yes” to any Defendants, please answer whether the conduct occurred during one of the following time periods:
Philip Morris, Incorporated Yes _X___ No __
Before July 1, 1974 Yes __X__ No __
After July 1, 1974 Yes __X__ No __
Both before and after July 1, 1974 Yes _X__ No __
When the Florida Supreme Court ruled in 2006 that this finding should be given res judicata effect (for members of the class action who were to proceed in individual actions moving forward), the idea was that it would not be necessary for evidence to be presented to prove the same points about the product being defective and addictive and the cause of disease over and over again for each member of the class. This is the basis for issue preclusion.
The defendants argued in this case that the general findings of the Engle phase I jury were not specific enough to be given res judicata effect. For example, their argument might be:
Who is to say that the Engle Phase I Jury didn’t simply mean that Philip Morris placed a couple of cartons of defective and unreasonably dangerous Marlboros on the market before and after July 1, 1974? They did not say that the plaintiff in this case ever smoked any of those unreasonably dangerous and defective cigarettes. Therefore, this plaintiff needs to prove that the cigarettes he smoked were defective and unreasonably dangerous to this jury.
They are free to make this argument or something like it to keep the jury from hearing what the findings were in phase I — and probably will — but the plaintiffs, under today’s ruling, only need to show that the jury was presented with persuasive and compelling evidence that all of the defendants’ cigarettes were dangerous and unreasonably dangerous during Phase I.
A total victory for the plaintiffs here would have prevented the defendants from making arguments such as the one above. However, by allowing the issue preclusion with support from the record into the trials, it is likely that most courts will permit the juries to hear what the Phase I findings were, as the Florida Supreme Court had intended.