11th Circuit: More Inquiry Into Engle Jury's Finding Needed

ATLANTA - (Mealey's) Florida federal courts presiding over Engle progeny cases must do more work to identify precisely what the Phase I trial findings of the Engle jury mean before deciding the extent to which they have res judicata effect in establishing elements of the individual plaintiffs' claims, the 11th Circuit U.S. Court of Appeals held July 22 (Bernice Brown, et al. v. R.J. Reynolds Tobacco Co., et al., No. 08-16158, 11th Cir.).

When the Florida Supreme Court broke up the plaintiff class in Engle v. Liggett Group, Inc. (945 So.2d 1246 [Fla. Sup. 2006], cert denied, 128 S.Ct. 96 [2007]) (Engle III), it nevertheless preserved the jury's findings in that case's Phase I trial, including findings against R.J. Reynolds Tobacco Co. (RJR), the American Tobacco Co., Philip Morris USA Inc., Lorillard Tobacco Co. and Lorillard Inc. regarding general causation, addiction to cigarettes, strict liability, fraud by concealment, civil conspiracy, breach of implied and express warranties and negligence.  The court's stated intent was to allow former class members, to whom it gave one year to refile their claims individually, to avoid the burden of relitigating general causation issues and ensure trials focused on specific causation and damages.

Thousands of erstwhile class members had suits initiated in or removed to the U.S. District Court for the Middle District of Florida under the Class Action Fairness Act, where the defendants moved under Federal Rule of Procedure 16(c) for an order determining the preclusive effects of the Engle Phase I findings; specifically, the defendants sought a ruling that those findings may not be used to establish any of the elements of the plaintiffs' various claims.

Judge Harvey E. Schlesinger ruled in the instant case that the Engle Phase I findings may not be given preclusive effect in any proceeding to establish any element of an Engle plaintiff's claims; nevertheless, he and other judges, recognizing that a controlling question of law is it stake, certified their orders for interlocutory appeal to the 11th Circuit U.S. Court of Appeals.

Six months after hearing oral arguments on the matter, the appellate panel vacated Judge Schlesinger's order and remanded the case for a more detailed inquiry into precisely what conclusions the Engle Phase I jury reached and the extent to which they may be used by the plaintiffs.

The panel said that the Phase I findings "may be given effect to the full extent of, but no farther than, what the jury found."  The point in dispute is what the jury actually found, the panel noted; Judge Schlesinger reached his conclusion that the Phase I findings may not be used to establish any element of the plaintiffs' causes of action without first giving preclusive effect to those findings as required by the Florida Supreme Court's decision, it said.

"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," the panel said.  "It is for the district court to determine, for example, whether the jury's answer to Question 3 [on the Phase I verdict form] establishes only that the defendants sold some cigarettes that were defective and unreasonably dangerous, or whether the plaintiffs have carried their burden of showing to a reasonable degree of certainty that it also establishes that all of the cigarettes that the defendants sold fit that description.  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 claims."

[Editor's Note:  Full coverage will be in the July issue of Mealey's Litigation Report: Tobacco. In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844. Document #04-100723-022Z.  For all of your legal news needs, please visit]

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