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Supreme Court of Florida.
Howard A. ENGLE, M.D., et al., Petitioners,
v.
LIGGETT GROUP, INC., et al., Respondents.
No. SC03-1856.
Dec. 21, 2006.
Background: Smokers and their survivors brought
class-action lawsuit against cigarette companies
and industry organizations, seeking to recover
for alleged smoking-related injuries. Following
appellate affirmance as modified, 672 So.2d
39, of certification of class, the Circuit Court,
Miami-Dade County, Robert P. Kaye, J., entered
judgment on jury verdicts in favor of class,
awarding $12.7 million in compensatory damages
and $145 billion in punitive damages. Defendants
appealed. The District Court of Appeal, 853
So.2d 434, reversed with instructions to decertify
class, and class appealed.
Holdings: The Supreme Court held that:
(1) prior state action did not raise res judicata
bar to instant litigation;
(2) award of compensatory damages was not prerequisite
to finding of entitlement to punitive damages;
(3) finding of liability is required before
entitlement to punitive damages can be determined;
(4) jury improperly awarded classwide punitive
damages prior to determination of total compensatory
damages;
(5) award of punitive damages was clearly excessive;
(6) one panel of appellate judges was not authorized
to nullify another panel's affirmance of class
certification order;
(7) class certification was not viable for third
phase of instant litigation;
(8) inappropriate arguments of class counsel
did not rise to level of reversible error;
(9) final class certification order established
cut-off date for class membership as date of
final recertification of class; and
(10) two of class representatives were proper
members of the class.
Approved in part, quashed in part, and remanded.
Lewis, C.J., concurred in part and dissented
in part with opinion in which Quince, J., joined.
Wells, J., concurred in part and dissented
in part with opinion in which Bell, J., joined.
West Headnotes
[1] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
30k892 Trial De Novo
30k893 Cases Triable in Appellate Court
30k893(1) k. In General. Most Cited Cases
Whether application of res judicata to bar
claims of individual state citizens against
cigarette companies and industry groups which
were parties to settlement agreement with the
state in separate litigation was proper was
question of law subject to de novo review on
appeal. (Per curiam, with two justices joining
and four justices concurring separately in part.)
[2] KeyCite Notes
228 Judgment
228XIII Merger and Bar of Causes of Action and
Defenses
228XIII(A) Judgments Operative as Bar
228k540 k. Nature and Requisites of Former Recovery
as Bar in General. Most Cited Cases
228 Judgment KeyCite Notes
228XIII Merger and Bar of Causes of Action and
Defenses
228XIII(B) Causes of Action and Defenses Merged,
Barred, or Concluded
228k584 k. Nature and Elements of Bar or Estoppel
by Former Adjudication. Most Cited Cases
228 Judgment KeyCite Notes
228XIV Conclusiveness of Adjudication
228XIV(C) Matters Concluded
228k713 Scope and Extent of Estoppel in General
228k713(2) k. Matters Which Might Have Been
Litigated. Most Cited Cases
Foundation of the doctrine of “res judicata”
is that a final judgment in a court of competent
jurisdiction is absolute and settles all issues
actually litigated in a proceeding as well as
those issues that could have been litigated.
(Per curiam, with two justices joining and four
justices concurring separately in part.)
[3] KeyCite Notes
228 Judgment
228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded
228k702 k. Government, State, or Municipality,
and Officers, Citizens, or Taxpayers. Most Cited
Cases
State's action against cigarette companies
and industry organizations, seeking punitive
damages on basis of defendants' alleged knowing
and intentional dissemination of false, fraudulent,
and misleading statements to the general public,
did not assert interests of common concern to
all state citizens, as required to raise res
judicata bar to subsequent class action litigation
brought against cigarette companies and industry
organizations by individual state citizens,
who were smokers and their survivors, where
class members' punitive damages claims involved
injuries to purely private interests incapable
of being raised by the state. (Per curiam, with
two justices joining and four justices concurring
separately in part.) West's F.S.A. § 817.41.
[4] KeyCite Notes
228 Judgment
228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded
228k702 k. Government, State, or Municipality,
and Officers, Citizens, or Taxpayers. Most Cited
Cases
For a state to bind its citizens as a result
of litigation advanced by the state, the government
must be suing in its parens patriae capacity,
litigating the rights or interests common to
the public at large and thereby representing
the citizenry of the state. (Per curiam, with
two justices joining and four justices concurring
separately in part.)
[5] KeyCite Notes
115 Damages
115V Exemplary Damages
115k87 Nature and Theory of Damages Additional
to Compensation
115k87(2) k. Necessity of Actual Damage. Most
Cited Cases
Award of compensatory damages is not a prerequisite
to a finding of entitlement to punitive damages.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[6] KeyCite Notes
115 Damages
115V Exemplary Damages
115k87 Nature and Theory of Damages Additional
to Compensation
115k87(1) k. In General. Most Cited Cases
Compensatory and punitive damages serve distinct
purposes. (Per curiam, with two justices joining
and two justices concurring separately in part.)
[7] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k205 k. Assessment at Trial of Issues in
General. Most Cited Cases
Because a finding of entitlement to punitive
damages is not dependent on a finding that a
plaintiff suffered a specific injury, an award
of compensatory damages need not precede a determination
of entitlement to punitive damages; therefore,
the order of these determinations is not critical.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[8] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k205 k. Assessment at Trial of Issues in
General. Most Cited Cases
Finding of liability is required before entitlement
to punitive damages can be determined. (Per
curiam, with two justices joining and two justices
concurring separately in part.)
[9] KeyCite Notes
115 Damages
115V Exemplary Damages
115k87 Nature and Theory of Damages Additional
to Compensation
115k87(1) k. In General. Most Cited Cases
For purposes of determining entitlement to
punitive damages, “liability” is more than a
breach of duty. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[10] KeyCite Notes
115 Damages
115V Exemplary Damages
115k87 Nature and Theory of Damages Additional
to Compensation
115k87(1) k. In General. Most Cited Cases
Finding of liability necessarily precedes a
determination of damages, but does not compel
a compensatory award. (Per curiam, with two
justices joining and two justices concurring
separately in part.)
[11] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k205 k. Assessment at Trial of Issues in
General. Most Cited Cases
In action by smokers and their survivors against
cigarette companies and industry organizations,
seeking to recover for alleged smoking-related
injuries, jury improperly considered entitlement
to punitive damages before finding that plaintiffs
had established causation and reliance. (Per
curiam, with two justices joining and two justices
concurring separately in part.)
[12] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k205 k. Assessment at Trial of Issues in
General. Most Cited Cases
In class action by smokers and their survivors
against cigarette companies and industry organizations,
seeking to recover for alleged smoking-related
injuries, jury improperly awarded classwide
punitive damages after determination of compensatory
damages for only three individual class members,
and prior to determination of total compensatory
damages, where order of jury's determinations
precluded review to determine whether punitive
damages bore reasonable relationship to actual
harm inflicted, as reflected in compensatory
damages. (Per curiam, with two justices joining
and two justices concurring separately in part.)
[13] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
30k892 Trial De Novo
30k893 Cases Triable in Appellate Court
30k893(1) k. In General. Most Cited Cases
30 Appeal and Error KeyCite Notes
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)2 Verdicts
30k1004 Amount of Recovery
30k1004(6) Particular Cases and Items
30k1004(11) k. Exemplary or Punitive Damages.
Most Cited Cases
Trial court's determination of whether a damage
award is excessive, requiring a remittitur or
a new trial, is reviewed by an appellate court
under an abuse of discretion standard; however,
a trial court's determination as to whether
a punitive damage award exceeds the boundaries
of due process as guaranteed by the United States
Constitution is reviewed by a court under a
de novo standard. (Per curiam, with two justices
joining and two justices concurring separately
in part.) U.S.C.A. Const.Amend. 14.
[14] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)2 Verdicts
30k1004 Amount of Recovery
30k1004(6) Particular Cases and Items
30k1004(11) k. Exemplary or Punitive Damages.
Most Cited Cases
Appellate court must review a punitive damages
award to make certain that the manifest weight
of the evidence does not render the amount of
punitive damages assessed out of all reasonable
proportion to the malice, outrage, or wantonness
of the tortious conduct. (Per curiam, with two
justices joining and two justices concurring
separately in part.)
[15] KeyCite Notes
115 Damages
115V Exemplary Damages
115k94 Measure and Amount of Exemplary Damages
115k94.1 k. In General. Most Cited Cases
Award of punitive damages must be reviewed
to ensure that it bears some relationship to
the defendant's ability to pay and does not
result in economic castigation or bankruptcy
of the defendant. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[16] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)2 Verdicts
30k1004 Amount of Recovery
30k1004(6) Particular Cases and Items
30k1004(11) k. Exemplary or Punitive Damages.
Most Cited Cases
Appellate review of a punitive damages award
includes an evaluation of the punitive and compensatory
amounts awarded to ensure a reasonable relationship
between the two. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[17] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k205 k. Assessment at Trial of Issues in
General. Most Cited Cases
Amount of compensatory damages must be determined
in advance of a determination of the amount
of punitive damages awardable, if any, so that
the relationship between the two may be reviewed
for reasonableness. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[18] KeyCite Notes
115 Damages
115V Exemplary Damages
115k94 Measure and Amount of Exemplary Damages
115k94.10 Amount Awarded in Particular Cases
115k94.10(2) k. Products Liability. Most Cited
Cases
Award of $145 billion in punitive damages in
class action brought by smokers and their survivors
against cigarette companies and industry organizations
was clearly excessive, where such award was
so inordinately large as obviously to exceed
maximum limit of reasonable range within which
jury might properly operate and compensatory
damages had been determined only for the three
individual class representatives; comparison
of amounts awarded and defendants' financial
worth clearly demonstrated that award would
result in unlawful crippling of defendants,
and no comparison between punitive and compensatory
damages was possible. (Per curiam, with two
justices joining and four justices concurring
separately in part.)
[19] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(M) Subsequent Appeals
30k1097 Former Decision as Law of the Case in
General
30k1097(1) k. In General. Most Cited Cases
Panel of appellate judges was not authorized,
under rules of civil procedure, to nullify another
panel's affirmance of class certification order
in tobacco litigation, after trial court's entry
of final judgment in second phase of trial,
where certification order was not interlocutory.
(Per curiam, with two justices joining and two
justices concurring separately in part.) West's
F.S.A. RCP Rule 1.220(d)(1).
[20] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(B) Proceedings
287k35.39 k. Time for Proceeding and Determination.
Most Cited Cases
Class is normally certified at an early stage
of the proceedings, certainly before trial,
and typically before discovery is completed.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[21] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(M) Subsequent Appeals
30k1097 Former Decision as Law of the Case in
General
30k1097(2) k. Unjust or Erroneous Decision.
Most Cited Cases
Doctrine of law of the case would permit decertification
of class by one panel of appellate judges, after
certification of class by another panel, two-year
trial, and entry of final judgment, only upon
showing that original certification ruling resulted
in clear manifest injustice. (Per curiam, with
two justices joining and two justices concurring
separately in part.)
[22] KeyCite Notes
106 Courts
106II Establishment, Organization, and Procedure
106II(G) Rules of Decision
106k99 Previous Decisions in Same Case as Law
of the Case
106k99(1) k. In General. Most Cited Cases
“Law of the case” applies in subsequent proceedings
as long as there has been no change in the facts
on which the mandate was based. (Per curiam,
with two justices joining and two justices concurring
separately in part.)
[23] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(M) Subsequent Appeals
30k1097 Former Decision as Law of the Case in
General
30k1097(1) k. In General. Most Cited Cases
No circumstances justified reconsideration
by second appellate court panel of prior panel's
approval of class certification, pursuant to
law of the case doctrine, where all parties
and trial court relied upon such approval to
govern continuation of class action, original
panel rendered final determination on choice-of-law
issue, and reconsideration followed conclusion
of trial on all issues common to class. (Per
curiam, with two justices joining and two justices
concurring separately in part.)
[24] KeyCite Notes
106 Courts
106II Establishment, Organization, and Procedure
106II(G) Rules of Decision
106k88 Previous Decisions as Controlling or
as Precedents
106k91 Decisions of Higher Court or Court of
Last Resort
106k91(1) k. Highest Appellate Court. Most Cited
Cases
Supreme Court is not bound by a District Court
of Appeal's law of the case. (Per curiam, with
two justices joining and two justices concurring
separately in part.)
[25] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Trial court did not abuse its discretion in
certifying class, in action by smokers and their
survivors against cigarette companies and industry
organizations. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[26] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Class certification was not viable for third
phase of three-phase class action brought by
smokers and their survivors against cigarette
companies and industry organizations, where
individualized issues, including legal causation,
comparative fault, and damages predominated
with respect to issues designated for trial
in third phase. (Per curiam, with two justices
joining and two justices concurring separately
in part.) West's F.S.A. RCP Rule 1.220(b)(3),
(d)(4)(A); Fed.Rules Civ.Proc.Rule 23(c)(4)(A),
28 U.S.C.A.
[27] KeyCite Notes
228 Judgment
228XIII Merger and Bar of Causes of Action and
Defenses
228XIII(A) Judgments Operative as Bar
228k541 Courts or Other Tribunals Rendering
Judgment
228k548 k. Appellate Courts. Most Cited Cases
228 Judgment KeyCite Notes
228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded
228k677 k. Persons Represented by Parties. Most
Cited Cases
287 Parties KeyCite Notes
287III Representative and Class Actions
287III(B) Proceedings
287k35.49 k. Decertification. Most Cited Cases
Class members were entitled, for up to one
year following decertification of class after
first two phases of three-phase class action
brought by smokers and their survivors against
cigarette companies and industry organizations,
to initiate individual damages actions in which
common core findings approved on appeal would
have res judicata effect, other than jury's
findings on fraud and intentional infliction
of emotional distress claims, which involved
highly individualized determinations, and its
premature finding as to punitive damages. (Per
curiam, with two justices joining and two justices
concurring separately in part.) West's F.S.A.
RCP Rule 1.220(b)(3), (d)(4)(A); Fed.Rules Civ.Proc.Rule
23(c)(4)(A), 28 U.S.C.A.
[28] KeyCite Notes
230 Jury
230II Right to Trial by Jury
230k11 Courts in Which Trial by Jury Is Required
230k11(5) k. Application of Provisions of Federal
Constitution to State Courts. Most Cited Cases
Seventh Amendment to the United States Constitution
does not apply to actions brought in state court.
(Per curiam, with two justices joining and two
justices concurring separately in part.) U.S.C.A.
Const.Amend. 7.
[29] KeyCite Notes
230 Jury
230II Right to Trial by Jury
230k30 Denial or Infringement of Right
230k31.2 Rights of Action and Procedure in Civil
Cases
230k31.2(1) k. In General. Most Cited Cases
Bifurcation of class action brought by smokers
and their survivors against cigarette companies
and industry organizations to permit determination
of common issues in one phase, and decertifying
class to permit separate actions on individualized
issues, did not violate defendants' state constitutional
right to jury trial. (Per curiam, with two justices
joining and two justices concurring separately
in part.) West's F.S.A. Const. Art. 1, § 22.
[30] KeyCite Notes
388 Trial
388V Arguments and Conduct of Counsel
388k133 Action of Court
388k133.3 k. Sustaining Objection. Most Cited
Cases
388 Trial KeyCite Notes
388V Arguments and Conduct of Counsel
388k133 Action of Court
388k133.6 Instruction or Admonition to Jury
388k133.6(3) Statements as to Facts, Comments,
and Argument
388k133.6(4) k. Particular Statements or Remarks.
Most Cited Cases
Under totality of the circumstances presented
in class action brought by smokers and their
survivors against cigarette companies and industry
organizations, arguments of class counsel attempting
to counteract opposing counsel's contention
that defendants acted lawfully, and putting
forward argument that “legal doesn't make it
right,” made over course of two-year trial,
although inappropriate, did not rise to level
of reversible error, where trial court granted
defendants' requests for curative instructions
and motions to strike, and cumulative effect
of alleged error was not sufficient to have
influenced outcome of trial. (Per curiam, with
two justices joining and two justices concurring
separately in part.)
[31] KeyCite Notes
275 New Trial
275II Grounds
275II(B) Misconduct of Parties, Counsel, or
Witnesses
275k29 k. Conduct of Counsel. Most Cited Cases
275 New Trial KeyCite Notes
275II Grounds
275II(B) Misconduct of Parties, Counsel, or
Witnesses
275k31 k. Necessity of Objection. Most Cited
Cases
If the issue of an opponent's improper argument
has been properly preserved by objection and
motion for mistrial, the trial court should
grant a new trial if the argument was so highly
prejudicial and inflammatory that it denied
the opposing party its right to a fair trial.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[32] KeyCite Notes
275 New Trial
275II Grounds
275II(B) Misconduct of Parties, Counsel, or
Witnesses
275k31 k. Necessity of Objection. Most Cited
Cases
To justify granting a motion for a new trial
based on unobjected-to improper argument, the
trial court must find that the improper argument
is of such a nature as to reach into the validity
of the trial itself to the extent that the verdict
could not have been obtained but for such comments.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[33] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k976 New Trial or Rehearing
30k978 For Errors or Irregularities
30k978(2) k. Misconduct of Party or Counsel.
Most Cited Cases
Trial court's order granting or denying a motion
for a new trial based on either objected-to
or unobjected-to improper argument is reviewed
for abuse of discretion. (Per curiam, with two
justices joining and two justices concurring
separately in part.)
[34] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)12 Arguments and Conduct of Counsel
30k1060.1 In General
30k1060.1(1) k. In General. Most Cited Cases
To determine whether challenged statements
and arguments of counsel were in fact prejudicial,
the statements cannot be evaluated in isolation
but must be placed and evaluated in context.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[35] KeyCite Notes
388 Trial
388V Arguments and Conduct of Counsel
388k113 Statements as to Facts, Comments, and
Arguments
388k125 Appeals to Sympathy or Prejudice
388k125(2) k. Appeals to Race or Local Prejudice.
Most Cited Cases
388 Trial KeyCite Notes
388V Arguments and Conduct of Counsel
388k133 Action of Court
388k133.1 k. In General; Duty of Court. Most
Cited Cases
Trial court did not abuse its discretion, in
class counsel's opening statement in first phase
of class action brought by smokers and their
survivors against cigarette companies and industry
organizations, in determining that class counsel's
single reference to “race” was not unduly inflammatory
and did not warrant mistrial, where remark was
made in context of counsel's argument that defendants'
marketing practices divided American consumers
into groups along various lines, including race.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[36] KeyCite Notes
45 Attorney and Client
45I The Office of Attorney
45I(B) Privileges, Disabilities, and Liabilities
45k32 Regulation of Professional Conduct, in
General
45k32(7) k. Miscellaneous Particular Acts or
Omissions. Most Cited Cases
388 Trial KeyCite Notes
388V Arguments and Conduct of Counsel
388k113 Statements as to Facts, Comments, and
Arguments
388k125 Appeals to Sympathy or Prejudice
388k125(2) k. Appeals to Race or Local Prejudice.
Most Cited Cases
Class counsel's remarks, during closing argument
in first phase of class action brought by smokers
and their survivors against cigarette companies
and industry organizations, referring to the
Holocaust and to slavery as issues lacking two
“sides” to be considered, followed shortly thereafter
by references to the civil rights movement as
struggle against unjust laws, were improper,
unjustified, and amounted to conduct unbecoming
an attorney practicing in state courts. (Per
curiam, with two justices joining and four justices
concurring separately in part.)
[37] KeyCite Notes
388 Trial
388V Arguments and Conduct of Counsel
388k133 Action of Court
388k133.3 k. Sustaining Objection. Most Cited
Cases
Class counsel's improper remarks, during closing
argument in first phase of class action brought
by smokers and their survivors against cigarette
companies and industry organizations, referring
to the Holocaust and to slavery as issues lacking
two “sides” to be considered, followed shortly
thereafter by references to the civil rights
movement as struggle against unjust laws, did
not rise to level of reversible error, where
trial court sustained objections to several
such remarks, no motion for mistrial was made
or curative instruction requested, and counsel
made no further race-based argument during remainder
of his closing. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[38] KeyCite Notes
388 Trial
388V Arguments and Conduct of Counsel
388k113 Statements as to Facts, Comments, and
Arguments
388k128 k. Instructions to Jury as to Their
Duties. Most Cited Cases
Class counsel's comments during closing argument
in first phase of class action brought by smokers
and their survivors against cigarette companies
and industry organizations, responding to defendants'
preemption defense and to testimony of one defense
witness concerning legality of defendants' product,
did not amount to improper argument for jury
nullification; class counsel contended that
“legal don't make it right” and that merely
because product was legal did not absolve defendants
of responsibility for harm and death resulting
from use thereof. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[39] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)12 Arguments and Conduct of Counsel
30k1060.1 In General
30k1060.1(2) Particular Argument or Conduct
30k1060.1(8) k. Appeals to Sympathy or Prejudice.
Most Cited Cases
388 Trial KeyCite Notes
388V Arguments and Conduct of Counsel
388k113 Statements as to Facts, Comments, and
Arguments
388k125 Appeals to Sympathy or Prejudice
388k125(2) k. Appeals to Race or Local Prejudice.
Most Cited Cases
Arguments directed by class counsel to four
of six jurors who were African-American, in
first part of second phase of class action brought
by smokers and their survivors against cigarette
companies and industry organizations, were not
unduly inflammatory and did not warrant reversal
of jury verdict against defendants, where jury's
verdicts as to compensatory damage awards to
three class representatives reflected careful
and differentiated analysis as to comparative
fault and individual damages. (Per curiam, with
two justices joining and two justices concurring
separately in part.)
[40] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
30k892 Trial De Novo
30k893 Cases Triable in Appellate Court
30k893(1) k. In General. Most Cited Cases
Issue of whether two of three class representatives
were properly included within class as certified
by the trial court and approved on appeal, in
class action brought by smokers and their survivors
against cigarette companies and industry organizations,
involved application of law to set of undisputed
facts, and as such was question of law subject
to de novo review. (Per curiam, with two justices
joining and two justices concurring separately
in part.)
[41] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(B) Proceedings
287k35.41 k. Identification of Class; Subclasses.
Most Cited Cases
287 Parties KeyCite Notes
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Class membership, in class action brought by
smokers and their survivors against cigarette
companies and industry organizations, was not
open-ended, despite omission from final class
description of any stated cut-off date for membership;
open-ended class membership would not allow
for requisite notice and opportunity to opt
out and might implicate potential class members'
state constitutional right of access to courts.
(Per curiam, with two justices joining and two
justices concurring separately in part.) West's
F.S.A. Const. Art. 1, § 21; West's F.S.A. RCP
Rule 1.220(d)(2).
[42] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(B) Proceedings
287k35.41 k. Identification of Class; Subclasses.
Most Cited Cases
287 Parties KeyCite Notes
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Final class certification order, in class action
brought by smokers and their survivors against
cigarette companies and industry organizations,
referring to prospective plaintiffs as persons
“who have suffered, presently suffer or have
died[,]” established cut-off date for class
membership as date of final recertification
of class, especially where such order contained
first order that notice to potential class members
be published in newspapers and magazines circulated
in state. (Per curiam, with two justices joining
and two justices concurring separately in part.)
[43] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Date of class plaintiffs' diagnoses with smoking-related
diseases and medical conditions was not relevant
to their eligibility for class membership, where
“diagnosis” was not qualifying factor in description
of class certified; rather, class was described
as persons “who have suffered, presently suffer
or have died from diseases and medical conditions.”
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[44] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Class representative formally diagnosed with
lung cancer prior to issuance of final class
certification order, in class action brought
by smokers and their survivors against cigarette
companies and industry organizations, was proper
member of class at time of entry of such order.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
[45] KeyCite Notes
287 Parties
287III Representative and Class Actions
287III(C) Particular Classes Represented
287k35.69 k. Tort Cases; Environmental Interests;
Mass or Toxic Tort. Most Cited Cases
Class representative whose medical records
indicated, after issuance of final class certification
order, in class action brought by smokers and
their survivors against cigarette companies
and industry organizations, that she had past
history of tobacco-related disease predating
issuance of final class certification order,
was proper member of class. (Per curiam, with
two justices joining and two justices concurring
separately in part.)
[46] KeyCite Notes
241 Limitation of Actions
241II Computation of Period of Limitation
241II(A) Accrual of Right of Action or Defense
241k55 Torts
241k55(4) k. Injuries to Person. Most Cited
Cases
All judgments in favor of one of three class
representatives, in class action brought by
smokers and their survivors against cigarette
companies and industry organizations, were barred
by applicable statute of limitations. (Per curiam,
with two justices joining and four justices
concurring separately in part.)
[47] KeyCite Notes
313A Products Liability
313AI Scope in General
313AI(B) Particular Products, Application to
313Ak59 k. Tobacco Products. Most Cited Cases
Evidence in class action brought by smokers
and their survivors against cigarette companies
and industry organizations was insufficient
to support imposition of joint and several liability
for damages upon two defendants as to two class
representatives, absent any evidence that those
defendants manufactured or sold any products
alleged to have caused injury to those plaintiffs,
where jury found those defendants zero percent
at fault with respect to those plaintiffs. (Per
curiam, with two justices joining and two justices
concurring separately in part.)
[48] KeyCite Notes
272 Negligence
272XV Persons Liable
272k484 k. Joint and Several Liability. Most
Cited Cases
Defendant who is found to be zero percent at
fault for a plaintiff's damages cannot be held
jointly and severally liable for those damages.
(Per curiam, with two justices joining and two
justices concurring separately in part.)
*1253 Stanley M. Rosenblatt and Susan Rosenblatt
of Stanley M. Rosenblatt, P.A., Miami, Florida,
for Petitioners.
Alvin Bruce Davis of Steel, Hector and Davis,
P.A., Miami, Florida, Mercer K. Clarke and Kelly
A. Luther of Clarke, Silverglate, Campbell,
Williams and Montgomery, Miami, Florida, Marc
E. Kasowitz, Daniel R. Benson and Aaron H. Marks
of Kasowitz, Benson, Torres and Friedman, LLP,
New York, New York, Elliott H. Scherker, Arthur
J. England, Jr., and David L. Ross of Greenberg
Traurig, P.A., Miami, Florida, Norman A. Coll
and Kenneth J. Reilly of Shook, Hardy and Bacon,
LLP, Miami, Florida, Stephen N. Zack of Zack,
Sparber, Kosnitzky, Spratt and Brooks, P.A.,
Miami, Florida, Benjamine Reid and Wendy F.
Lumish of Carlton Fields, P.A., Miami, Florida,
Anthony N. Upshaw of Adorno and Yoss, P.A.,
Miami, Florida, Renaldy J. Gutierrez and Kathleen
M. Sales of Gutierrez and Associates, Miami,
Florida, Dan K. Webb and Stuart Altschuler of
Winston and Strawn, LLP, Chicago, Illinois,
Robert H. Klonoff of Jones Day, Washington,
D.C., Robert C. Heim and Joseph Patrick Archie
of Dechert, LLP, Philadelphia, Pennsylvania,
James R. Johnson and Diane P. Flannery of Jones
Day, Atlanta, Georgia, and Richard A. Schneider
of King and Spalding, LLP, Atlanta, Georgia,
Joseph P. Moodhe of Debevoise and Plimpton,
New York, New York, James T. Newsom of Shook,
Hardy and Bacon, LLP, Kansas City, Missouri,
for Respondents.
Norwood S. Wilner of Spohrer, Wilner, Maxwell
and Matthews, P.A., Jacksonville, Florida on
behalf of Tobacco Trial Lawyers Association;
Theodore Jon Leopold of Ricci-Leopold, P.A.,
Palm Beach Gardens, Florida, Richard Frankel,
Matthew L. Myers, and Michael Stroud, Washington,
D.C. on behalf of Trial Lawyers for Public Justice
and Public Citizen, the Campaign for Tobacco-Free
Kids, and the American Cancer Society; Stephen
P. Teret and Jon S. Vernick, Center for Law
and the Public's Health, Johns Hopkins Bloomberg
School of Public Health, Baltimore, Maryland,
and John B. Ostrow, Miami, Florida on behalf
of American Public Health Association, American
Medical Association, American Academy of Pediatrics,
American Heart Association, American Lung Association,
American Legacy Foundation and Roswell Park
Cancer Institute, Sylvester Comprehensive Cancer
Center/University of Miami Hospital and Clinics
and the Women's Cancer League of Greater Miami;
Phillip Timothy Howard of Howard and Associates,
P.A., Tallahassee, Florida, Douglas Blanke,
Executive Director, William Mitchell College
of Law, Saint Paul, Minnesota, Richard A. Daynard,
Ph.D., Robert L. Kline and Christopher Banthin,
Northeastern University School of Law, Boston,
Massachusetts on behalf of Tobacco Control Legal
Consortium and Tobacco Control Resource Center;
Roy C. Young of Young Van Assenderp, Tallahassee,
Florida, John H. Beisner, John F. Niblock and
Jessica Davidson Miller of O'Melveny and Myers,
LLP, Washington, D.C., and Robin S. Conrad,
National Chamber Litigation Center, Inc., Washington,
D.C., on behalf of the Chamber of Commerce of
the United States; Rebecca O'Dell Townsend of
Haas, Dutton, Blackburn, Lewis and Longley,
P.L., Tampa, Florida, Daniel J. Popeo and David
Price, Washington, D.C., on behalf of Washington
Legal Foundation and National Association of
Manufacturers, for Amici Curiae.
*1254 PER CURIAM.
This case arises from the Third District Court
of Appeal's reversal of a final judgment entered
in a smokers' class action lawsuit that sought
damages against cigarette companies and industry
organizations for alleged smoking-related injuries.
See Liggett Group, Inc. v. Engle, 853 So.2d
434 (Fla. 3d DCA 2003) (hereinafter “ Engle
II ”). The final judgment awarded $12.7 million
in compensatory damages to three individual
plaintiffs and $145 billion in punitive damages
to the entire class. See id. at 441. We have
jurisdiction because Engle II misapplies our
decision in Young v. Miami Beach Improvement
Co., 46 So.2d 26 (Fla.1950). See art. V, § 3(b)(3),
Fla. Const.
For the reasons explained more fully in this
opinion, although we approve the Third District's
reversal of the $145 billion class action punitive
damages award, we quash the remainder of the
Third District's decision. A majority of the
Court (Anstead, Pariente, Lewis and Quince)
holds that the compensatory damages award in
favor of Mary Farnan in the amount of $2,850,000
and Angie Della Vecchia in the amount of $4,023,000
should be reinstated. However, the court unanimously
agrees that the compensatory damages award in
favor of Frank Amodeo must be vacated based
on the statute of limitations.
Further, a majority of the Court (Anstead,
Pariente, Lewis and Quince) concludes that Engle
II misapplied our decision on the law of the
case doctrine in Florida Department of Transportation
v. Juliano, 801 So.2d 101, 106 (Fla.2001); that
the certification of the class action and the
Phase I trial process were not abuses of the
trial court's discretion; and that certain common
liability findings can stand. However, we also
conclude that the remaining issues, including
individual causation and apportionment of fault
among the defendants, are highly individualized
and do not lend themselves to class action treatment.
Thus, we remand with directions that the class
should be decertified without prejudice to the
class members filing individual claims within
one year of the issuance of our mandate in this
case with res judicata effect given to certain
Phase I findings.
More specifically, we hold as follows:
PUNITIVE DAMAGES: We unanimously hold that
the Third District erred in concluding that
under Young the class action punitive damages
claims were barred by the settlement agreement
between the State of Florida and many of the
defendants involved in the present action (Florida
Settlement Agreement or FSA). However, we vacate
the punitive damages award because we unanimously
conclude that the punitive damages award is
excessive as a matter of law.
A majority of the Court (Anstead, Pariente,
Lewis, and Quince) also concludes that the Third
District misapplied Ault v. Lohr, 538 So.2d
454, 456 (Fla.1989), by holding that compensatory
damages must be determined before a jury can
consider entitlement to punitive damages. Although
Justices Lewis and Quince would allow the finding
of entitlement to punitive damages to stand,
a different majority of the Court (Wells, Anstead,
Pariente, and Bell) concludes that the trial
court erred in allowing the jury to make this
finding during Phase I because, consistent with
Ault, proof of liability, which includes both
reliance and causation, is a predicate to the
determination of entitlement to punitive damages.
PHASE I FINDINGS: A majority of the Court (Anstead,
Pariente, Lewis, and Quince) concludes that
the Third District erred as a matter of law
in conducting a *1255 plenary review of the
trial court's decision to certify the Engle
Class after completion of an extended Phase
I trial and after a different panel of the Third
District upheld the certification.FN1 This same
majority concludes that it was proper to allow
the jury to make findings in Phase I on Questions
1 (general causation), 2 (addiction of cigarettes),
3 (strict liability), 4(a) (fraud by concealment),
5(a) (civil-conspiracy-concealment), 6 (breach
of implied warranty), 7 (breach of express warranty),
and 8 (negligence). Therefore, these findings
in favor of the Engle Class can stand. The Court
unanimously agrees that the nonspecific findings
in favor of the plaintiffs on Questions 4 (fraud
and misrepresentation) and 9 (intentional infliction
of emotional distress) are inadequate to allow
a subsequent jury to consider individual questions
of reliance and legal cause. Therefore, these
findings cannot stand. Because the finding in
favor of the plaintiffs on Question 5 (civil
conspiracy-misrepresentation) relies on the
underlying tort of misrepresentation, this finding
also cannot stand.
FN1. Justices Wells and Bell would affirm the
Third District as to its conclusions regarding
the class action.
ARGUMENTS OF ENGLE CLASS'S COUNSEL: A majority
of the Court (Anstead, Pariente, Lewis, and
Quince) disagrees with the Third District's
conclusion that the plaintiffs' counsel's improper
arguments require reversal, but we condemn in
no uncertain terms some of these arguments.
We do not address the Phase II arguments because
we are reversing the punitive damages award
from Phase II-B and the defendants do not raise
any error with respect to arguments made during
Phase II-A, in which the jury determined the
individual compensatory damages of three class
representatives.
CLASS CERTIFICATION CUT-OFF DATE: While a majority
(Anstead, Pariente, Lewis, and Quince) agrees
that the class cannot be open-ended, we disagree
with the Third District's ruling that the appropriate
cut-off date for class membership is October
31, 1994, the date the class was initially certified.
We conclude that the date of the trial court's
November 21, 1996, order that recertified a
narrower class is the appropriate cut-off date.
JUDGMENT FOR CLASS MEMBERS: Because Mary Farnan,
who was diagnosed with lung cancer in April
1996, is clearly a proper member of the class,
the Third District erred in reversing the compensatory
verdict in favor of Farnan in the amount of
$2,850,000, except as against Liggett Group
Inc. and Brooke Group Holding Inc., whom the
jury found to be zero percent at fault. We thus
approve the Third District's conclusion that
a directed verdict should be granted in favor
of Liggett and Brooke.
As for Angie Della Vecchia, she was diagnosed
with lung cancer in early 1997. However, at
that time, it was also noted by her doctors
that she had a past medical history of chronic
obstructive pulmonary disease (“COPD”) and significant
hypertension. Because two of the diseases at
issue in this case are coronary heart disease
and COPD, Della Vecchia's medical records indicate
that she had been suffering from a tobacco related
disease prior to the time of certification and
is therefore properly included as a class member.
The jury specifically found that her lung disease
was caused by smoking. Thus, a majority of the
Court concludes that the compensatory judgment
in favor of Della Vecchia in the amount of $4,023,000
should stand, except as against Liggett and
*1256 Brooke, who were found to be zero percent
at fault.FN2 The Court unanimously agrees with
the Third District that the final judgment in
favor of class representative Frank Amodeo must
be reversed because all of Amodeo's claims are
barred by the statute of limitations.
FN2. We also note that the defendants never
objected to Farnan or Della Vecchia as a proper
members of the class. Although the defendants
opposed the Engle Class's 1998 motion to add
thirteen class representatives, which listed
Farnan and Della Vecchia, their arguments focused
on the timeliness of the motion and on the fact
that adding thirteen new class representatives
was unnecessary. The defendants did state that
the brief descriptions of the proposed new class
representatives that were provided by the plaintiffs
did not indicate that “they would be adequate
class representatives, whose claims are not
time-barred.” However, the defendants did not
argue that any of the proposed class representatives,
including Farnan and Della Vecchia, were not
proper members of the class because of the class
cut-off date.
With the summary of this Court's holdings set
forth above, we now turn to a more in-depth
discussion of the background of this case and
the salient issues.
FACTS AND PROCEDURAL HISTORY
On October 31, 1994, the trial court certified
as a nationwide class action a group of smokers
and their survivors under Florida Rule of Civil
Procedure 1.220(b)(3). The class representatives
on behalf of themselves, and all others similarly
situated, filed an amended class action complaint
seeking compensatory and punitive damages against
major domestic cigarette companies and two industry
organizations (hereinafter collectively referred
to as “Tobacco”) for injuries allegedly caused
by smoking.FN3
FN3. The cigarette companies are: R.J. Reynolds
Tobacco Company; RJR Nabisco, Inc.; Philip Morris
Incorporated (Philip Morris U.S.A.); Philip
Morris Companies, Inc.; Lorillard Tobacco Company;
Lorillard, Inc.; Brown & Williamson Tobacco
Corporation, individually and as successor by
merger to The American Tobacco Company; Liggett
Group Inc.; Brooke Group Holding Inc., and Dosal
Tobacco Corp. The industry organizations are
The Council for Tobacco Research-U.S.A., Inc.,
and The Tobacco Institute, Inc.
The trial court defined the class as: “All United
States citizens and residents, 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.” Tobacco filed an interlocutory appeal
of the trial court's order certifying the Engle
Class pursuant to Florida Rule of Appellate
Procedure 9.130(a)(6). See R.J. Reynolds Tobacco
Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA
1996) (hereinafter “ Engle I ”). On January
31, 1996, the Third District affirmed the trial
court's order certifying the class but reduced
the class to include only Florida smokers. See
id. at 42 (striking “[a]ll United States citizens
and residents” provision and substituting in
its place “[a]ll Florida citizens and residents”).
Tobacco's petition for review by this Court
was denied. See R.J. Reynolds Tobacco Co. v.
Engle, 682 So.2d 1100 (Fla.1996).
On February 4, 1998, the trial court issued
a trial plan, dividing the trial proceedings
into three phases. Phase I consisted of a year-long
trial to consider the issues of liability and
entitlement to punitive damages for the class
as a whole. See Engle II, 853 So.2d at 441.
The jury considered common issues relating exclusively
to the defendants' conduct and the general health
effects of smoking. See id. On July 7, 1999,
at the conclusion of Phase I, the jury rendered
a verdict for the Engle Class and against Tobacco
on all *1257 counts.FN4
FN4. The Phase I findings were: (1) that cigarettes
cause some of the diseases at issue; (2) that
nicotine is addictive; (3) that the defendants
placed cigarettes on the market that were defective
and unreasonably dangerous; (4) that the defendants
made a false or misleading statement of material
fact with the intention of misleading smokers;
(4)(a) that the defendants concealed or omitted
material information not otherwise known or
available knowing that the material was false
or misleading or failed to disclose a material
fact concerning the health effects or addictive
nature of smoking cigarettes or both; (5) that
all of the defendants agreed to misrepresent
information relating to the health effects of
cigarettes or the addictive nature of cigarettes
with the intention that smokers and the public
would rely on this information to their detriment;
(5)(a) that the defendants agreed to conceal
or omit information regarding the health effects
of cigarettes or their addictive nature with
the intention that smokers and the public would
rely on this information to their detriment;
(6) that all of the defendants sold or supplied
cigarettes that were defective; (7) that all
of the defendants sold or supplied cigarettes
that at the time of the sale or supply did not
conform to representations of fact made by the
defendants; (8) that all of the defendants were
negligent; (9) that all of the defendants engaged
in extreme and outrageous conduct or with reckless
disregard relating to cigarettes sold or supplied
to Florida smokers with the intent to inflict
severe emotional distress; and (10) that all
of the defendants' conduct rose to a level that
would permit an award of punitive damages.
Phase II was divided into two subparts-Phase
II-A and Phase II-B. Phase II-A was intended
to resolve the issues of entitlement and amount
of compensatory damages, if any, that the three
individual class representatives-Frank Amodeo,
Mary Farnan, and Angie Della Vecchia-should
receive. Phase II-B was designed to result in
a jury determination of a total lump sum punitive
damage award, if any, that should be assessed
in favor of the class as a whole.
At the conclusion of Phase II-A, the jury determined
that the three individual class representatives
were entitled to compensatory damages in varying
amounts, which were offset by their comparative
fault. The total award was $12.7 million. The
jury subsequently determined in Phase II-B the
lump-sum amount of punitive damages for the
entire class to be $145 billion, without allocation
of that amount to any class member. Tobacco
filed several post-verdict motions, including
a motion at the conclusion of phase II-B for
a new trial or remittitur, a motion to set aside
the verdict, and for entry of judgment, and
another motion to decertify the class. See Engle
v. R.J. Reynolds Tobacco, No. 94-08273 CA-22
(Fla. 11th Cir.Ct. Nov. 6, 2000) (hereinafter
“ Engle F.J.”), rev'd, 853 So.2d 434 (Fla. 3d
DCA 2003).
On November 6, 2000, the trial court entered
a final judgment and amended omnibus order,
in which it granted judgment in Tobacco's favor
in two respects. First, the trial court granted
Tobacco's motion for directed verdict on a statute
of limitations basis with regard to named plaintiff
Frank Amodeo on the counts based on strict liability,
implied warranty, express warranty, negligence,
and intentional infliction of emotional distress.
However, the trial court ruled that Amodeo's
fraud and conspiracy claims were not time-barred.
Second, the court granted Tobacco's motion for
directed verdict with regard to count seven
of the complaint, in which the Engle Class sought
equitable relief, upon the basis that the count
had previously been dismissed by the court.
The court entered judgment in favor of the Engle
Class on all other counts, ordered immediate
payment to the individual plaintiffs, and directed
Tobacco to pay the $145 billion in punitive
damages into the registry of the Dade County
Circuit Court for the benefit of the entire
class.
*1258 According to the trial plan, in Phase
III, new juries are to decide the individual
liability and compensatory damages claims for
each class member (estimated to number approximately
700,000). See Engle II, 853 So.2d at 442. Thereafter,
the plan contemplated that the trial court would
divide the punitive damages previously determined
equally among any successful class members.
Pursuant to the omnibus order, interest on the
punitive award began accruing immediately. See
id.
Tobacco filed an appeal and the Third District
reversed the final judgment with instructions
that the class be decertified. See id.
ANALYSIS
1. Res Judicata
A. History of the Florida Settlement Agreement
and the Master Settlement Agreement
In 1995, the State of Florida and others (hereinafter
“State”) filed a complaint against many of the
defendants involved in the present action (hereinafter
“FSA Defendants”).FN5 This earlier action was
initiated by the State under the Medicaid Third-Party
Liability Act, section 409.910, Florida Statutes
(1995). In its complaint, the State alleged
counts of negligence, strict liability in tort,
injunctive relief, various statutory and criminal
violations, and violations of the Florida RICO
Act. The State sought reimbursement of Medicaid
monies expended in treating the victims of tobacco-related
illnesses as well as other damages permitted
by law, including punitive damages where available.
Subsequent to the filing of the State's complaint,
the circuit court granted the FSA Defendants'
motion for summary judgment and dismissed all
claims by the State for punitive damages with
the exception of its claim for punitive damages
contained in count four of the complaint alleging
only statutory and criminal violations.FN6
FN5. The named plaintiffs in the State's suit
were: The State of Florida; Lawton Chiles, Jr.,
Individually and as Governor; the Department
of Business and Professional Regulation; the
Agency for Health Care Administration; and the
Department of Legal Affairs.
The named defendants in the State's suit were:
The American Tobacco Company; R.J. Reynolds
Tobacco Company; RJR Nabisco, Inc.; B.A.T. Industries,
PLC; Batus Holdings, Inc.; Brown & Williamson
Tobacco Corporation; Philip Morris Companies,
Inc.; Philip Morris Incorporated (Philip Morris
U.S.A.); Loews Corporation; Lorillard Tobacco
Company; United States Tobacco Company; UST
Inc.; The Council for Tobacco Research-U.S.A.
Inc. (successor to Tobacco Institute Research
Committee); The Tobacco Institute, Inc.; Hill
& Knowlton, Inc.; British American Tobacco
Co., Ltd.; and Dosal Tobacco Corp., Inc.
FN6. Specifically, count four contained allegations
that the defendants violated the Florida Drug
and Cosmetic Act, statutory provisions prohibiting
the wrongful targeting of minors, statutory
provisions prohibiting fraudulent practices,
statutory provisions prohibiting public nuisances,
and the Florida Deceptive and Unfair Trade Practices
Act.
In 1997, the State and the FSA Defendants entered
into the Florida Settlement Agreement, which
resolved “all present and future civil claims
against all parties to [the] litigation relating
to the subject matter of [the] litigation, which
[were] or could have been asserted by any of
the parties [thereto].” (Emphasis supplied.)
Pursuant to the terms of the FSA, in exchange
for agreeing to resolve these claims, the State
received $550 million for unspecified purposes,
$200 million for a pilot program by the State
of Florida aimed at the reduction of the use
of tobacco products by minors, several billion
dollars paid out over a period of time for the
benefit of the State of Florida, and injunctive
relief. As stated by the FSA, the *1259 monies
received “constitute[d] not only reimbursement
for Medicaid expenses incurred by the State
of Florida, but also settlement of all of Florida's
other claims, including those for punitive damages,
RICO and other statutory theories.” Also included
in the FSA was a “Non-Admissibility” provision
which provided:
These settlement negotiations have been undertaken
by the parties in good faith and for settlement
purposes only, and neither this Settlement Agreement
nor any evidence of negotiations hereunder,
shall be offered or received in evidence in
this Action, or any other action or proceeding,
for any purpose other than in an action or proceeding
arising under this Settlement Agreement.
During the time period in which Florida pursued
an action against the FSA Defendants, several
other states also initiated actions against
the FSA Defendants for similar if not identical
claims. These states settled their claims against
the FSA Defendants in November of 1998 when
all parties to that action entered into a Master
Settlement Agreement (the “MSA”). The MSA released
all claims of the participating states and also
included a “Non-Admissibility” provision similar
to that in the FSA. Under the MSA, the FSA Defendants
are required to pay certain participating states
more than $200 billion over the first twenty-five
years, with additional amounts to be paid in
perpetuity after that.
B. Res Judicata Effect of the FSA
The Third District in this case held that the
punitive damages claims of the Engle Class were
precluded by the FSA. See Engle II, 853 So.2d
at 467. The district court reasoned that Florida,
in agreeing to relinquish its claims through
the FSA, had effectively resolved a matter of
general interest to all of its citizens and,
therefore, the FSA was binding upon all citizens
even though they were not parties to the original
litigation. See id. at 468. The district court
therefore concluded that the FSA's “release,
and the res judicata effect of the resulting
final judgment, preclude[d] the [Engle Class's]
punitive-damage claims here.” Id.
[1] We agree with the Third District that whether
the application of res judicata was proper is
a question of law. See id. at 468. We therefore
apply a de novo standard of review. See D'Angelo
v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)
(stating that standard of review for pure questions
of law is de novo).
[2] The doctrine of res judicata serves an
important purpose in the judicial system of
this state. The foundation of res judicata is
that a final judgment in a court of competent
jurisdiction is absolute and settles all issues
actually litigated in a proceeding as well as
those issues that could have been litigated.
We have explained the doctrine of res judicata
as follows:
A judgment on the merits rendered in a former
suit between the same parties or their privies,
upon the same cause of action, by a court of
competent jurisdiction, is conclusive not only
as to every matter which was offered and received
to sustain or defeat the claim, but as to every
other matter which might with propriety have
been litigated and determined in that action.
Fla. Dep't of Transp. v. Juliano, 801 So.2d
101, 105 (Fla.2001) (alteration in original)
(quoting Kimbrell v. Paige, 448 So.2d 1009,
1012 (Fla.1984)).
In Young, this Court held that citizens of
the City of Miami Beach were bound by a judgment
against the city that enjoined the city from
asserting any interest in a particular parcel
of oceanfront property. See 46 So.2d at 30.
An association of *1260 citizens of the City
of Miami Beach filed an action to determine
the public's interest in this parcel, which
was owned by the defendant, a private corporation.
See id. at 26. In holding that the claim was
barred by the prior decree enjoining the City,
we noted that a “judgment against a municipal
corporation in a matter of general interest
to all its citizens is binding on the latter,
although they are not parties to the suit.”
Id. at 30 (emphasis supplied) (quoting 38 Am.Jur.
§ 728).
Similarly, in Castro v. Sun Bank of Bal Harbour,
370 So.2d 392, 393 (Fla. 3d DCA 1979), the Third
District held that private parties were precluded
from relitigating public nuisance and zoning
violation claims that had already been settled
by the State. The district court reasoned that
the plaintiffs were bound by the final judgment
of the prior action “irrespective of whether
they were formal parties to the ... action”
because they were “citizens of the State of
Florida and the City of Miami at the time of
the [prior] litigation.” Id.
[3] [4] The district court, as well as Tobacco,
relied on Young and Castro to support the position
that the FSA is binding on all citizens of the
State of Florida. However, in both of these
cases the governmental entity was asserting
interests of concern common to all of its citizens:
the public's interest in oceanfront property
and public nuisance and zoning violations. Application
of res judicata in these contexts is supported
by precedent that has established that for a
State to bind its citizens as a result of litigation
advanced by the State, the government must be
suing in its parens patriae capacity, litigating
the rights or interests common to the public
at large and thereby representing the citizenry
of the State. See Satsky v. Paramount Commc'ns,
Inc., 7 F.3d 1464, 1470 (10th Cir.1993). The
Eleventh Circuit Court of Appeals appropriately
described this form of action when it stated:
“In order to maintain [a parens patriae ] action,
the State must articulate an interest apart
from the interests of particular private parties,
i.e., the State must be more than a nominal
party. The State must express a quasi-sovereign
interest.” Alfred L. Snapp & Son, Inc. v.
Puerto Rico, ex rel. Barez, 458 U.S. 592, 607,
102 S.Ct. 3260, 3268, 73 L.Ed.2d 995 (1982).
“Parens patriae standing has been explained
on the ground that the plaintiff state is not
merely advancing the rights of individual injured
citizens, but has an additional sovereign or
quasi-sovereign interest.” 17 Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 4047
at 223 (1988). Although the Supreme Court has
not expressly defined what is a “quasi-sovereign”
interest, it is clear that a state may sue to
protect its citizens against “the pollution
of the air over its territory; or of interstate
waters in which the state has rights.” 12 Moore's
Federal Practice ¶ 350.02[3] at 3-20 (1993).
It is equally clear, however, that a state may
not sue to assert the rights of private individuals.
See Alfred L. Snapp, 458 U.S. at 600, 102 S.Ct.
at 3265; Pennsylvania v. New Jersey, 426 U.S.
660, 665, 96 S.Ct. 2333, 2335, 49 L.Ed.2d 124
(1976); New York by Abrams v. Seneci, 817 F.2d
1015, 1017 (2nd Cir.1987); Illinois v. Life
of Mid-America Ins. Co., 805 F.2d 763, 766 (7th
Cir.1986), 13A Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice
& Procedure: Jurisdiction 2d § 3531.11 at
19 (1984).
Id. at 1469 (alteration in original).
In Satsky, the court analyzed an action in
which a group of property owners alleged a variety
of private property claims *1261 arising from
the defendant's operation of a mine. See id.
at 1466. The defendant claimed that a consent
decree between itself and the State of Colorado
precluded the plaintiffs' claims. See id. at
1467. In reversing a final summary judgment
entered by the lower court for the defendant,
the court held that “[t]o the extent [the] claims
involve injuries to purely private interests,
which the State cannot raise, then the claims
are not barred.” Id. at 1470. We agree with
the reasoning of Satsky and with the principle
that “litigation by a government agency will
not preclude a private party from vindicating
a wrong that arises from related facts but generates
a distinct individual cause of action.” Southwest
Airlines Co. v. Texas Intern. Airlines, Inc.,
546 F.2d 84, 98 (5th Cir.1977).
In the litigation that resulted in the FSA,
the State, in support of its claim for punitive
damages, alleged knowing and intentional dissemination
of false, fraudulent and misleading statements
to the general public by the FSA Defendants
in violation of section 817.41, Florida Statutes
(1995). FN7 In the present case, the Engle Class
relied on legal theories that were based on
injuries personal to the class members to support
the claim for punitive damages. Since the State
had no right to pursue these types of private
interests on behalf of its citizens, the punitive
damages claims settled by the State in the FSA,
if any, were distinct from the punitive damages
sought by the Engle Class in the present case.
FN7. The State's only claim for punitive damages
arose from the alleged violation of this Florida
statutory provision prohibiting misleading advertising.
None of the other statutory provisions alleged
to be violated by the FSA Defendants in count
four of the State's complaint allowed the recovery
of punitive damages.
The reasoning in In re Exxon Valdez, 270 F.3d
1215 (9th Cir.2001), is instructive. In that
case, the defendants appealed a punitive damages
award for claims arising out of the Exxon Valdez
oil spill. See id. at 1221. The plaintiffs consisted
of separate classes of commercial fishermen,
Alaskan natives, and landowners affected by
the spill. See id. at 1225. These distinct classes
sought compensatory and punitive damages for
injuries resulting from the Exxon Valdez spill.
See id. The jury returned a verdict in favor
of the plaintiffs which assessed $287 million
in compensatory damages and $5 billion in punitive
damages. See id. Exxon appealed the resulting
judgment, asserting that the punitive damages
award was barred by the res judicata effect
of a consent decree between Exxon and the United
States and the State of Alaska that settled
claims in a previous action filed under the
Clean Water Act. See id. at 1227. In holding
that the award was not barred by the previous
settlement, the court concluded that the interests
asserted by the plaintiffs were distinct from
those asserted by the United States and Alaska
in the prior action. See id. at 1228. The court,
relying on Satsky, noted that the prior consent
decree addressed harms caused to the environment
and the general public whereas the claims in
the class action were to vindicate wrongs that
resulted in individual injuries. See In re Exxon
Valdez, 270 F.3d at 1227-28. Moreover, the court
stressed that although the consent decree “released
all government claims, [it] provides explicitly
that ‘nothing in this agreement, however, is
intended to affect legally the claims, if any,
of any person or entity not a Party to this
Agreement.’ ” Id. at 1227. The FSA expressly
provided that neither the agreement itself “nor
any evidence of negotiations [t]hereunder, shall
be offered or received in evidence in this Action,
or any other action or proceeding, for any purpose
other than in *1262 an action or proceeding
arising under this Settlement Agreement.” The
facts of In re Exxon are similar to the circumstances
presented in this case and support our conclusion
that the Third District erred in holding that
the FSA barred the Engle Class's punitive damages
claim.
2. Punitive Damages Award
Although we conclude that the Third District
erred in applying the doctrine of res judicata
to bar the Engle Class's punitive damages claim,
we must vacate the classwide punitive damages
award because we unanimously agree with the
Third District that the trial court erred in
allowing the jury to determine a lump sum amount
before it determined the amount of total compensatory
damages for the class. As a matter of law, the
punitive damages award violates due process
because there is no way to evaluate the reasonableness
of the punitive damages award without the amount
of compensatory damages having been fixed. The
amount awarded is also clearly excessive because
it would bankrupt some of the defendants. A
majority of the Court further concludes that
the trial court erred in allowing the jury to
consider entitlement to punitive damages during
the Phase I trial. We address these issues separately.
A. Phase I Finding on Entitlement to Punitive
Damages
The last question on the Phase I verdict form
asked the jury to determine whether “[u]nder
the circumstances of this case, ... the conduct
of any Defendant rose to a level that would
permit a potential award or entitlement to punitive
damages.” The jury answered “yes” with respect
to each of the defendants. In Phase II-B, the
jury awarded a total of $145 billion in punitive
damages to the class.
[5] [6] The Third District ruled that the trial
erred in awarding classwide punitive damages
“without the necessary findings of liability
and compensatory damages.” Engle II, 853 So.2d
at 450. A majority of the Court (Anstead, Pariente,
Lewis, and Quince) concludes that an award of
compensatory damages is not a prerequisite to
a finding of entitlement to punitive damages.
Compensatory and punitive damages serve distinct
purposes. As the United States Supreme Court
has explained:
The former are intended to redress the concrete
loss that the plaintiff has suffered by reason
of the defendant's wrongful conduct. The latter,
which have been described as “quasi-criminal,”
operate as “private fines” intended to punish
the defendant and to deter future wrongdoing.
A jury's assessment of the extent of a plaintiff's
injury is essentially a factual determination,
whereas its imposition of punitive damages is
an expression of its moral condemnation.
Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149
L.Ed.2d 674 (2001) (citations omitted).
[7] Because a finding of entitlement to punitive
damages is not dependent on a finding that a
plaintiff suffered a specific injury, an award
of compensatory damages need not precede a determination
of entitlement to punitive damages. Therefore,
we conclude that the order of these determinations
is not critical. See Jenkins v. Raymark Indus.,
Inc., 782 F.2d 468, 474 (5th Cir.1986).
[8] [9] [10] A different majority of the Court
(Wells, Anstead, Pariente, and Bell) concludes
that under our decision in Ault v. Lohr, 538
So.2d 454, 456 (Fla.1989), a finding of liability
is required before entitlement to punitive damages
can be determined, and that liability is more
than a breach of duty. A finding of liability
necessarily precedes a determination of *1263
damages, but does not compel a compensatory
award. For example, in Ault, the jury found
that the defendant had committed an assault
and battery but awarded $0 in compensatory damages
and $5000 in punitive damages. See id. at 455.
Thus, unlike the Phase I jury in this case,
the jury in Ault found that the plaintiff had
proved the underlying cause of action but did
not suffer any compensable damage.
Although we appeared to use “breach of duty”
and “liability” interchangeably in Ault, the
Court expressly adopted the principles set forth
in dicta in Lassiter v. International Union
of Operating Engineers, 349 So.2d 622 (Fla.1976).
Specifically, we stated that
[n]ominal damages are awarded to vindicate
an invasion of one's legal rights where, although
no physical or financial injury has been inflicted,
the underlying cause of action has been proved
to the satisfaction of a jury. Accordingly,
the establishment of liability for a breach
of duty will support an otherwise valid punitive
damage award even in the absence of financial
loss for which compensatory damages would be
appropriate.
Ault, 538 So.2d at 455 (some emphasis supplied)
(quoting Lassiter, 349 So.2d at 625-26).
[11] In this case, the Phase I verdict did
not constitute a “finding of liability” under
Ault. This is evidenced by the fact that had
the jury found for Tobacco on the legal cause
and reliance issues during Phase II, there would
have been no opportunity for the jury to award
the named plaintiffs damages of any type. In
other words, Phase II findings for Tobacco on
legal causation and reliance would have precluded
the jury from awarding compensatory or punitive
damages. It was error for the trial court to
allow the jury to consider entitlement to punitive
damages before the jury found that the plaintiffs
had established causation and reliance.
In Phase I, the jury decided issues related
to Tobacco's conduct but did not consider whether
any class members relied on Tobacco's misrepresentations
or were injured by Tobacco's conduct. As the
Third District noted, the Phase I jury “did
not determine whether the defendants were liable
to anyone.” Engle II, 853 So.2d at 450. It was
therefore error for the Phase I jury to consider
whether Tobacco was liable for punitive damages.
B. Excessiveness
[12] [13] Even if it were not error to determine
entitlement to punitive damages in Phase I,
it was clear error to allow the jury to go beyond
mere entitlement and award classwide punitive
damages when total compensatory damages had
not been determined. Under Florida law, a trial
court's determination of whether a damage award
is excessive, requiring a remittitur or a new
trial, is reviewed by an appellate court under
an abuse of discretion standard. See St. John
v. Coisman, 799 So.2d 1110, 1114 (Fla. 5th DCA
2001). However, a trial court's determination
as to whether a punitive damage award exceeds
the boundaries of due process as guaranteed
by the Unites States Constitution is reviewed
by a court under a de novo standard. See Cooper
Indus., 532 U.S. at 436, 121 S.Ct. 1678.
[14] [15] Florida law requires that an appellate
court review a punitive damages award to make
certain that the manifest weight of the evidence
does not render the amount of punitive damages
assessed out of all reasonable proportion to
the malice, outrage, or wantonness of the tortious
conduct. See Arab Termite & Pest Control
of Fla., Inc. v. Jenkins, 409 So.2d 1039, 1043
(Fla.1982). Additionally, an award must be reviewed
to ensure that it bears some *1264 relationship
to the defendant's ability to pay and does not
result in economic castigation or bankruptcy
of the defendant. See Bould v. Touchette, 349
So.2d 1181, 1186 (Fla.1977).
[16] In the past, we have not discussed whether
punitive damages awards must bear some reasonable
relation to compensatory damages. See Lassiter
v. Int'l Union of Operating Eng'rs, 349 So.2d
622, 626 (Fla.1977); see also Ault, 538 So.2d
at 456; Bankers Multiple Line Ins. Co. v. Farish,
464 So.2d 530, 533 (Fla.1985); Arab Termite,
409 So.2d at 1043. For example in Arab Termite,
we stated that punitive damages “are to be measured
by the enormity of the offense, entirely aside
from the measure of compensation for the injured
plaintiff.” 409 So.2d at 1043. However, we now
hold, consistent with United States Supreme
Court decisions after Ault that recognize due
process limits on punitive damages, that a review
of the punitive damages award includes an evaluation
of the punitive and compensatory amounts awarded
to ensure a reasonable relationship between
the two.
The United States Supreme Court has stated
that a review of a punitive damages award must
include consideration of three guideposts to
determine whether the award is unconstitutionally
excessive:
(1) the degree of reprehensibility of the defendant's
misconduct; (2) the disparity between the actual
or potential harm suffered by the plaintiff
and the punitive damages award; and (3) the
difference between the punitive damages awarded
by the jury and the civil penalties authorized
or imposed in comparable cases.
State Farm Mutual Auto. Ins. Co. v. Campbell,
538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d
585 (2003) (citing BMW of North America, Inc.
v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589,
134 L.Ed.2d 809 (1996)).
[17] The second guidepost is determinative
in this case. As the United States Supreme Court
has explained regarding this second factor:
[W]e have been reluctant to identify concrete
constitutional limits on the ratio between harm,
or potential harm, to the plaintiff and the
punitive damages award. Gore, 517 U.S., at 582,
116 S.Ct. 1589 (“[W]e have consistently rejected
the notion that the constitutional line is marked
by a simple mathematical formula, even one that
compares actual and potential damages to the
punitive award”); TXO [Production Corp. v. Alliance
Resources Corp., 509 U.S.] at 458[, 113 S.Ct.
2711]. We decline again to impose a bright-line
ratio which a punitive damages award cannot
exceed. Our jurisprudence and the principles
it has now established demonstrate, however,
that, in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages,
to a significant degree, will satisfy due process.
In [Pacific Mutual Life Insurance Co. v.] Haslip,
in upholding a punitive damages award, we concluded
that an award of more than four times the amount
of compensatory damages might be close to the
line of constitutional impropriety. 499 U.S.,
at 23-24[, 111 S.Ct. 1032]. We cited that 4-to-1
ratio again in Gore. 517 U.S., at 581[, 116
S.Ct. 1589]. The Court further referenced a
long legislative history, dating back over 700
years and going forward to today, providing
for sanctions of double, treble, or quadruple
damages to deter and punish. Id., at 581, and
n. 33[, 116 S.Ct. 1589]. While these ratios
are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit
multipliers are more likely to comport with
due process, while still achieving*1265 the
State's goals of deterrence and retribution,
than awards with ratios in range of 500 to 1,
id., at 582[, 116 S.Ct. 1589], or, in this case,
of 145 to 1.
Nonetheless, because there are no rigid benchmarks
that a punitive damages award may not surpass,
ratios greater than those we have previously
upheld may comport with due process where “a
particularly egregious act has resulted in only
a small amount of economic damages.” Ibid.;
see also ibid. (positing that a higher ratio
might be necessary where “the injury is hard
to detect or the monetary value of noneconomic
harm might have been difficult to determine”).
The converse is also true, however. When compensatory
damages are substantial, then a lesser ratio,
perhaps only equal to compensatory damages,
can reach the outermost limit of the due process
guarantee. The precise award in any case, of
course, must be based upon the facts and circumstances
of the defendant's conduct and the harm to the
plaintiff.
In sum, courts must ensure that the measure
of punishment is both reasonable and proportionate
to the amount of harm to the plaintiff and to
the general damages recovered.
Campbell, 538 U.S. at 424-26, 123 S.Ct. 1513.
Thus, the amount of compensatory damages must
be determined in advance of a determination
of the amount of punitive damages awardable,
if any, so that the relationship between the
two may be reviewed for reasonableness.
[18] In this case, the district court stated
that without having total compensatory damages
determined it would be “impossible to determine
whether punitive damages bear a ‘reasonable’
relationship to the actual harm inflicted on
the plaintiff.” Engle II, 853 So.2d at 451.
We agree. The trial plan allowed a lump sum
determination of punitive damages for the entire
class when compensatory damages had been determined
only for the three individual class representatives.
This approach does not provide a reviewing court
with an adequate starting point to compare the
lump sum punitive damages amount to compensatory
damages to ensure there is some reasonable relationship.
Accordingly, even if there was no error in allowing
the Phase I jury to find entitlement to punitive
damages, the classwide punitive damages award
must be reversed.FN8
FN8. We also conclude that the punitive damages
award was clearly excessive under the limitation
based on ability to pay established by our precedent
because it is “so inordinately large as obviously
to exceed the maximum limit of a reasonable
range within which the jury may properly operate.”
Lassiter, 349 So.2d at 627. A comparison of
the amounts awarded and the financial worth
assigned to each company by the Engle Class's
expert clearly demonstrates that the award would
result in an unlawful crippling of the defendant
companies.
3. Law of the Case-Class Certification
In concluding that the Engle Class must be
decertified, the Third District in Engle II
ruled that the “ ‘predominance’ or ‘commonality’
requirement is not satisfied, where claims involve
factual determinations unique to each plaintiff.”
853 So.2d at 445. The district court explained
that “common questions” did not predominate
over individual issues because the choice of
law analysis would require examination of numerous
different state laws governing different individual
claims. See id. at 449. The court also concluded
that class representation would not be “superior”
to individual suits because: (1) individualized
issues of liability, affirmative defenses, and
damages outweighed any common issues in *1266
the case; (2) each class member had unique and
different experiences, which would necessitate
litigation of substantially separate issues,
including legal causation, specific medical
causation, reliance, and awareness of risks;
and (3) individualized choice of law issues
would cause class proceedings to be unmanageable.
See id. at 445-47.
[19] We conclude that the Third District erred
in nullifying its previous affirmance of the
trial court's certification order. Contrary
to the Third District's conclusion, Florida
Rule of Civil Procedure 1.220(d)(1) did not
authorize the subsequent (and different) panel
of appellate judges to simply substitute its
judgment for that of the prior panel and reverse
the trial court's certification order after
the trial court entered its final judgment after
Phase II. See Engle II, 853 So.2d at 443 n.
4.
[20] A class is normally certified at an early
stage of the proceedings, certainly before trial,
and typically before discovery is completed.
Rule 1.220(d)(1) provides an avenue for reexamining
certification if subsequent discovery shows
that circumstances have changed. See Int'l Longshoremen's
Ass'n, Deep Sea Local 1408 v. Fisher, 860 So.2d
1078, 1078 (Fla. 1st DCA 2003) (affirming the
trial court's nonfinal order certifying a class
but noting that “because the order is interlocutory,
it may be revisited by the trial court should
circumstances change”). Rule 1.220(d)(1) was
not designed to allow a district court to decertify
a class, contrary to its previous affirmance
of class certification and after notice to thousands
of Floridians, a two-year trial, and an entry
of final judgment.
[21] Moreover, under the doctrine of law of
the case, the Third District would have been
justified in reversing its previous ruling in
Engle I only if it concluded that the prior
ruling would have resulted in a clear manifest
injustice. See Juliano, 801 So.2d at 106 (“[A]n
appellate court has the power to reconsider
and correct an erroneous ruling that has become
the law of the case where a prior ruling would
result in a ‘manifest injustice.’ ”) (quoting
Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965)).
Law of the case “requires that questions of
law actually decided on appeal must govern the
case in the same court and the trial court,
through all subsequent stages of the proceedings.”
Juliano, 801 So.2d at 105. The Third District
recently reiterated the purpose of the law of
the case doctrine in a decision holding that
the doctrine precluded relitigation of the propriety
of class action treatment: “[P]oints of law
adjudicated in a prior appeal are binding in
order to promote stability of judicial decisions
and to avoid piecemeal litigation.” State, Dep't
of Revenue v. Bridger, 935 So.2d 536, 538, 539
(Fla. 3d DCA 2006) (quoting Bueno v. Bueno de
Khawly, 677 So.2d 3, 4 (Fla. 3d DCA 1996)).
[22] The law of the case applies in subsequent
proceedings as long as there has been no change
in the facts on which the mandate was based.
Specifically, we have recognized that
an appellate court should reconsider a point
of law previously decided on a former appeal
only as a matter of grace, and not as a matter
of right; and that an exception to the general
rule binding the parties to “the law of the
case” at the retrial and at all subsequent proceedings
should not be made except in unusual circumstances
and for the most cogent reasons-and always,
of course, only where “manifest injustice” will
result from a strict and rigid adherence to
the rule.
Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965).
We have also cautioned that *1267 “the exception
to the rule should never be allowed when it
would amount to nothing more than a second appeal
on a question determined on the first appeal.”
Id. (emphasis supplied).
[23] We conclude that no circumstances existed
that justified the subsequent panel's reconsideration
of the prior Third District decision approving
class certification, which all parties and the
trial court relied on to govern the continuation
of the class action. On this issue, the analysis
of the Engle II court was flawed in several
respects. First, the Engle II court ignored
the trial court's pretrial ruling that only
Florida law would apply when it stated that
the “choice-of-law analysis in the present case
will require examination of numerous significantly
different state laws governing the different
plaintiffs' claims.” Engle II, 853 So.2d at
449. Second, none of the cases from other jurisdictions
cited by the Third District in Engle II to justify
decertification was in the procedural posture
of the present case.FN9
FN9. See, e.g., Barnes v. American Tobacco Co.,
161 F.3d 127 (3d Cir.1998) (affirming district
court's decertification); Castano v. American
Tobacco Co., 84 F.3d 734 (5th Cir.1996) (reversing
class certification on interlocutory appeal);
Estate of Mahoney v. R.J. Reynolds Tobacco Co.,
204 F.R.D. 150 (S.D.Iowa 2001) (denying motion
to certify class action); Badillo v. American
Tobacco Co., 202 F.R.D. 261 (D.Nev.2001) (denying
motions to certify class action); Guillory v.
American Tobacco Co., No. 97 C 8641, 2001 WL
290603 (N.D.Ill. Mar.20, 2001) (denying motion
to certify class action); Aksamit v. Brown &
Williamson Tobacco Corp., No. C.A. 6:97-3636-24,
2001 WL 1809378 at *9 (D.S.C. Dec.29, 2000)
(denying a motion to certify class action);
Thompson v. American Tobacco Co., Inc., 189
F.R.D. 544 (D.Minn.1999) (denying motion to
certify class action); Insolia v. Philip Morris
Inc., 186 F.R.D. 535, 546 (W.D.Wis.1998) (denying
motion to certify class action); Emig v. American
Tobacco Co., 184 F.R.D. 379, 389 (D.Kan.1998)
(denying motion to certify class action); Barreras
Ruiz v. American Tobacco Co., 180 F.R.D. 194,
197 (D.P.R.1998) (denying motion to certify
class action); Smith v. Brown & Williamson
Tobacco Corp., 174 F.R.D. 90, 94 (W.D.Mo.1997)
(denying motion to certify class action); Philip
Morris, Inc. v. Angeletti, 358 Md. 689, 752
A.2d 200 (2000) (reversing trial court's class
certification after trial plan had been established
but before trial commenced).
This case came before the Third District in
Engle II after it had affirmed the class certification
and after the conclusion of a trial on all common
issues. Thus, there is no need to engage in
an abstract analysis of the propriety of separate
proceedings on common limited liability issues.
Invalidating the completed class action proceedings
on manageability and superiority grounds after
a trial has occurred does not accord with common
sense or logic.
[24] [25] Of course, this Court is not bound
by the Third District's law of the case. See
Juliano, 801 So.2d at 105 (“The doctrine of
the law of the case requires that questions
of law actually decided on appeal must govern
the case in the same court and the trial court,
through all subsequent stages of the proceedings.”).
Nevertheless, we conclude that the trial court
did not abuse its discretion in certifying the
class. See Fla. Dep't of Agric. & Consumer
Servs. v. City of Pompano Beach, 829 So.2d 928,
929 (Fla. 4th DCA 2002) (“The trial court's
order certifying the class is subject to review
under an abuse of discretion standard.”); Bouchard
Transp. Co. v. Updegraff, 807 So.2d 768, 771
(Fla. 2d DCA 2002) (“[T]he determination that
a case meets the requirements of a class action
is a factual finding that is within the trial
court's discretion and will be reversed on appeal
only if an abuse of discretion is shown.”).
4. Three-Phase Trial Plan-Decertification
[26] We agree with the Third District that
problems with the three-phase trial *1268 plan
negate the continued viability of this class
action. We conclude that continued class action
treatment for Phase III of the trial plan is
not feasible because individualized issues such
as legal causation, comparative fault, and damages
predominate. See Fla. R. Civ. P. 1.220(b)(3)
(“A claim or defense may be maintained on behalf
of a class if the court concludes that the prerequisites
of subdivision (a) are satisfied, and that ...
the claim or defense is not maintainable under
either subdivision (b)(1) or (b)(2), but the
questions of law or fact common to the claim
or defense of the representative party and the
claim or defense of each member of the class
predominate over any question of law or fact
affecting only individual members of the class....”).
Florida Rule of Civil Procedure 1.220(d)(4)(A)
provides that “[w]hen appropriate ... a claim
or defense may be brought or maintained on behalf
of a class concerning particular issues.” Although
no Florida cases address whether it is appropriate
under rule 1.220(d)(4)(A) to certify class treatment
for only limited liability issues, several decisions
by federal appellate courts applying a similar
provision in the Federal Rules of Civil Procedure
provide persuasive authority for this approach.
Federal Rule of Civil Procedure 23(c)(4)(A)
provides that “[w]hen appropriate ... an action
may be brought or maintained as a class action
with respect to particular issues.” In determining
whether the predominance requirement of Federal
Rule of Civil Procedure 23(b)(3) FN10 has been
met, several United States Courts of Appeals
have concluded that under federal rule 23(c)(4)(A)
a trial court can properly separate liability
and damages issues, certifying class treatment
of liability while leaving damages to be determined
on an individual basis. See Olden v. LaFarge
Corp., 383 F.3d 495, 509 (6th Cir.2004) (stating
that the district court can properly “bifurcate
the issue of liability from the issue of damages,
and if liability is found, the issue of damages
can de decided by a special master or by another
method”); Carnegie v. Household Int'l, Inc.,
376 F.3d 656, 661 (7th Cir.2004) (noting that
“ Rule 23 allows district courts to devise imaginative
solutions to problems created by the presence
in a class action litigation of individual damages
issues”); In re Visa Check/MasterMoney Antitrust
Litigation, 280 F.3d 124, 139-41 (2d Cir.2001)
(noting that “[c]ommon issues may predominate
when liability can be determined on a class-wide
basis, even when there are some individualized
damage issues” and that “[t]here are a number
of management tools available to a district
court to address any individualized damages
issues that might arise in a class action”);
Valentino v. Carter-Wallace, Inc., 97 F.3d 1227,
1234 (9th Cir.1996) (“Even if the common questions
do not predominate over the individual questions
so that class certification of the entire action
is warranted, Rule 23 authorizes the district
court in appropriate cases to isolate the common
issues under Rule 23(c)(4)(A) and proceed with
class treatment of these particular issues.”);
see also Slaven v. BP America, Inc., 190 F.R.D.
649, 658 (C.D.Cal.2000) (maintaining class status
“solely for the determination of liability”
and stating that “[i]f plaintiffs prevail on
the liability portion of their case, the Court
will determine the appropriate*1269 method of
adjudicating causation and damages issues at
that juncture”).FN11
FN10. Federal rule 23(b)(3) is similar to Florida
rule 1.220(b)(3) and provides in pertinent part
that “[a]n action may be maintained as a class
action if the prerequisites of subdivision (a)
are satisfied, and in addition ... the court
finds that the questions of law or fact common
to the members of the class predominate over
any questions affecting only individual members.”
FN11. But see Castano v. American Tobacco Co.,
84 F.3d 734, 745 n. 21 (5th Cir.1996) (concluding
that the interaction of (b)(3) and (c)(4) requires
that “a cause of action, as a whole, must satisfy
the predominance requirement of (b)(3) and that
(c)(4) is a housekeeping rule that allows courts
to sever the common issues for a class trial”).
Both the Second and Fourth Circuits have noted
the conflict on this issue. See Gunnells v.
Healthplan Services, Inc., 348 F.3d 417, 444
(4th Cir.2003) (“[T]here is a circuit conflict
as to whether predominance must be shown with
respect to an entire cause of action, or merely
with respect to a specific issue, in order to
invoke (c)(4).”); Robinson v. Metro-North Commuter
R.R. Co., 267 F.3d 147, 167 n. 12 (2d Cir.2001)
(noting that “an alternate understanding of
the interaction of (b)(3) and (c)(4) to that
set forth in Castano has been advanced elsewhere”).
The Second and Seventh Circuits have also stated
that the determination that class treatment
of damages issues is inappropriate can be made
after a finding on liability. See Carnegie,
376 F.3d at 661 (explaining that one option
available to the district courts for solving
problems created by the presence in a class
action litigation of individual damages issues
is to decertify the class after the liability
trial); Visa Check/MasterMoney Antitrust Litigation,
280 F.3d at 141 (same). In Carnegie, the Seventh
Circuit discussed the manageability of a class
action alleging RICO violations and explained:
Often ... there is a big difference from the
standpoint of manageability between the liability
and remedy phases of a class action. The number
of class members need have no bearing on the
burdensomeness of litigating a violation of
RICO. Whether particular members of the class
were defrauded and if so what their damages
were are another matter, and it may be that
if and when the defendants are determined to
have violated the law separate proceedings of
some character will be required to determine
the entitlements of the individual class members
to relief. That prospect need not defeat class
treatment of the question whether the defendants
violated RICO. Once that question is answered,
if it is answered in favor of the class, a global
settlement ... will be a natural and appropriate
sequel. And if there is no settlement, that
won't be the end of the world. Rule 23 allows
district courts to devise imaginative solutions
to problems created by the presence in a class
action litigation of individual damages issues.
376 F.3d at 661 (citations omitted). In Visa
Check/MasterMoney Antitrust Litigation, the
Second Circuit concluded that the district court
adequately addressed individual issues that
might arise from certifying the class by specifically
recognizing “its ability to modify its class
certification order, sever liability and damages,
or even decertify the class if such an action
ultimately became necessary.” 280 F.3d at 141.
[27] In this case, the Phase I trial has been
completed. 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 finding on 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. See Daenzer v. Wayland Ford, Inc., 210
F.R.D. 202, 205 (W.D.Mich.2002) (entering summary
judgment on the issue of liability, decertifying
the class on the issue of damages and stating
that “[t]he Court's *1270 decision as to liability
is res judicata in any damages action individual
class members decide to bring”); McCormack v.
Abbott Labs., 617 F.Supp. 1521 (D.Mass.1985)
(concluding that plaintiff's strict liability
claim was barred by judgment for the defendants
entered in a prior class action, which the plaintiff
joined, before that class action was decertified).FN12
FN12. Justice Wells asserts that allowing limited
Phase I findings to stand sets “harmful and
confusing precedent.” Concurring in part and
dissenting in part op. at 1284. However, the
procedural posture of this case is unique and
unlikely to be repeated. Further, many of the
questions posed by Justice Wells are answered
in this opinion. As we state in both the opening
and closing of the opinion, class members (i.e.
those individuals who fit the class description
as of the November 21, 1996, cut-off date) must
file individual actions against the defendants
within one year of the issuance of this Court's
mandate to benefit from the Phase I finding
we uphold herein.
[28] We disagree with Justice Wells' conclusion
that bifurcating the trial in this manner violates
article I, section 22 of the Florida Constitution.
See concurring in part and dissenting in part
op. at 1285-87. We recognize the concerns expressed
by the Fifth Circuit Court of Appeals in Castano
v. American Tobacco Co., 84 F.3d 734, 750 (5th
Cir.1996), in which that court held that bifurcation
of issues in a nationwide smoking class action
violated the Seventh Amendment to the United
States Constitution.FN13 However, subsequent
to its decision in Castano, the Fifth Circuit
held that the risk of infringing on the parties'
Seventh Amendment rights is not significant
and is in fact avoided where the liability issues
common to all class members are tried together
by a single initial jury, and issues affecting
individual class members such as causation,
damages, and comparative negligence are tried
by different juries. See Mullen v. Treasure
Chest Casino, LLC, 186 F.3d 620, 628-29 (5th
Cir.1999). Recognizing that it had previously
reached a different conclusion in Castano, the
Fifth Circuit explained that the circumstances
of Castano were distinct from those present
in Mullen:
FN13. When this Court has interpreted article
I, section 22 of the Florida Constitution, it
found guidance in the Seventh Amendment of the
United States Constitution while recognizing
that the Seventh Amendment does not apply to
actions brought in state court. See Dep't of
Revenue v. The Printing House, 644 So.2d 498,
500 (Fla.1994).
In Castano, we were concerned that allowing
a second jury to consider the plaintiffs' comparative
negligence would invite that jury to reconsider
the first jury's findings concerning the defendants'
conduct. We believe that such a risk has been
avoided here by leaving all issues of causation
for the phase-two jury. When a jury considers
the comparative negligence of a plaintiff, “the
focus is upon causation. It is inevitable that
a comparison of the conduct of plaintiffs and
defendants ultimately be in terms of causation.”
Lewis v. Timco, Inc., 716 F.2d 1425, 1431 (5th
Cir.1983) (en banc); see id. (permitting the
use of comparative negligence in strict liability
claims). Thus, in considering comparative negligence,
the phase two jury would not be reconsidering
the first jury's findings of whether Treasure
Chest's conduct was negligent or the [vessel]
unseaworthy, but only the degree to which those
conditions were the sole or contributing cause
of the class member's injury. Because the first
jury will not be considering any issues of causation,
no Seventh Amendment implications affect our
review of the district court's superiority finding.
Mullen, 186 F.3d at 628-29 (emphasis supplied).
*1271 [29] The Fifth Circuit's reasoning in
Mullen is persuasive. In this case, although
the jury decided issues common to all class
members, none involved whether, or the degree
to which, the defendants' conduct was the sole
or contributing cause of the class members'
injuries, which is the pertinent question in
applying the doctrine of comparative negligence.
We thus follow the reasoning of Mullen and conclude
that the trial plan in this case did not violate
Tobacco's rights under article I, section 22
of the Florida Constitution.
5. Arguments of Engle Class's Counsel
[30] We conclude that, under the totality of
the circumstances, reversal is not warranted
based on the remarks made by the Engle Class's
counsel, Stanley Rosenblatt. Nevertheless, we
must again remind counsel that we will not condone
improper arguments. Inappropriate jury arguments
in this type of case risk wasting significant
judicial resources. Here, trial counsel ventured
very close to the line of reversible error on
a number of occasions in his attempt to counteract
opposing counsel's contentions that Tobacco
acted lawfully and to communicate his message
to the jury that “legal doesn't make it right.”
However, we conclude that under the totality
of the circumstances these comments did not
rise to the level of reversible error.
[31] [32] [33] If the issue of an opponent's
improper argument has been properly preserved
by objection and motion for mistrial, the trial
court should grant a new trial if the argument
was “so highly prejudicial and inflammatory
that it denied the opposing party its right
to a fair trial.” Tanner v. Beck, 907 So.2d
1190, 1196 (Fla. 3d DCA 2005); see also Murphy
v. Int'l Robotic Sys., Inc., 766 So.2d 1010,
1013 n. 2 (Fla.2000) (stating the Court's decision
addressing unobjected-to argument “does not
impact the legal standards applicable to consideration
of the issue that has been properly preserved
by objection and motion for mistrial, which
remains whether the comment was highly prejudicial
and inflammatory”). To justify granting a motion
for a new trial based on unobjected-to improper
argument, the trial court must find that the
improper argument is of such a nature as to
reach into the validity of the trial itself
to the extent that the verdict could not have
been obtained but for such comments. See Murphy,
766 So.2d at 1029-30. A trial court's order
granting or denying a motion for a new trial
based on either objected-to or unobjected-to
improper argument is reviewed for abuse of discretion.
See id. at 1030-31 (“[T]he appellate court must
... apply an abuse of discretion standard in
reviewing either the trial court's grant or
denial of a new trial based on the unobjected-to
closing argument.”); Bocher v. Glass, 874 So.2d
701, 704 (Fla. 1st DCA 2004) (reviewing a trial
court's order denying a motion for rehearing
based on objected-to improper argument for an
abuse of discretion).
In denying Tobacco's motions for mistrial,
the trial court stated:
The Court has carefully considered the Motions
for Mistrial in this cause and has determined
that curative instructions to the jury and/or
motions to strike have been granted as requested
by the movant, for most of the motions, and
in any event the cumulative effect of the alleged
error, was not in the opinion of the Court,
sufficient to have so influenced the jury as
to affect the outcome of the case considering
the length of the trial, the number of witnesses
presented, the quality and quantity of the testimony,
the huge amount of documentary evidence, and
specifically the substance of the alleged remarks.
The jury in this case rendered three verdicts,
each based *1272 upon a mountain of evidence
over a period of two years in three separate
trials. The court feels confident, that although
some remarks of counsel may have been uncalled
for, or subject to objection, they were not
so egregious as to require a new trial.
Engle F.J., No. 94-08273 CA-22 order at 17.
However, the Third District held that the comments
“caused irreparable prejudice and require reversal.”
Engle II, 853 So.2d at 458. Specifically, the
district court determined that this was accomplished
in two stages:
First, by inflaming the jury with racial pandering
and pleas for nullification of the law to secure
entitlement to punitive damages. And second,
by removing responsibility from the jury for
the size of the award, through arguing the award
would be subject to appellate review and that
it would not be paid out in a lump sum, but
rather through a payout scheme.
Id. at 459. The district court then proceeded
to list all of counsel's arguments it determined
were improper.
[34] Significantly, the manner in which the
district court has set forth and presented the
offending argument, stringing the comments together,
would certainly cause a reader to assume that
the comments are prejudicial. However, this
is not proper analysis for review under the
totality of the circumstances. Context is crucial.
To determine whether the challenged statements
and arguments were in fact prejudicial, the
statements cannot be evaluated in isolation
but must be placed and evaluated in context.
See State v. Jones, 867 So.2d 398, 400 (Fla.2004)
(“[T]his Court has evaluated the prosecutor's
action in context rather than focusing on the
challenged statement in isolation.”).
We emphasize that the duration of this trial
does not mean that a comment or several comments
standing alone would not warrant reversal. Nonetheless,
the length of the trial is relevant to the analysis
because the alleged improper statements were
not made on the same day or contained within
a two- or three-hour closing argument. These
statements spanned a two-year period. Some comments
were made during opening statements in Phase
I (liability phase) in October of 1998, some
during Phase I closing argument in June of 1999,
and others during the closing statements in
Phase II-B (punitive damages phase) in July
of 2000. Many of the alleged improper comments
did not even prompt an objection by Tobacco.FN14
FN14. This Court has recognized:
Harmfulness in this context also carries a
requirement that the comments be so highly prejudicial
and of such collective impact as to gravely
impair a fair consideration and determination
of the case by the jury. Passing remarks of
little consequence in the scope of a lengthy
trial should find little sympathy if no contemporaneous
objection is voiced. The extensiveness of the
objectionable material is a factor to be considered
in the harmfulness analysis.
Murphy, 766 So.2d at 1029-30.
[35] We begin with the Third District's conclusion
that plaintiffs' counsel engaged in “racial
pandering” and that the jury's “runaway” verdict
was evidently one inflamed by passion and prejudice.
A single reference to “race” in the Phase I
opening statement was in the context of the
consumer studies that the defendants conducted
that divide American consumers into groups.
Mr. Rosenblatt's comment that “they study races”
was part of a statement about the study of the
American consumer: “They study kids; they study
races; they divide the American consumer into
groups to sell their product.” In fact, when
the defense objected on the basis that those
*1273 comments were “only designed to prejudice
the jury,” the trial court rejected this argument
because that was “not the context of which it's
being used.” Mr. Rosenblatt then followed up
with the statement that this is an industry
that “divides the American consumer into groups:
white, black, Jewish, Christian, young, old.”
The trial court did not abuse its discretion
by determining that these statements were made
in an attempt to show how Tobacco sells its
products and advertises to different groups,
not to impermissibly prejudice the jury.
[36] As to the Phase I closing argument, we
agree that a series of improper remarks occurred
when counsel injected race into his argument:
Are there two sides to every question? And
the immediate gut reaction is: Yeah, yeah. You
want to be fair and you say: Right, there's
two sides to every question. What's the other
side to the Holocaust? What is the other side
to slavery?
An objection was made and sustained. While
one could posit that this was merely an attempt
to explain to the jury that there are not always
two sides, several minutes later Mr. Rosenblatt
returned to a race-based theme by referring
to Rosa Parks:
Let's discuss the concept of legal in the context
of America. I noticed in last week's newspaper,
Rosa Parks, who is 86 years old, got the Congressional
Gold Medal because in 1955....
Mr. Rosenblatt got no further because an objection
was made and sustained. Undaunted by the trial
court's ruling, Mr. Rosenblatt continued:
We look back in history. We look back in history.
The whole civil rights movement of the '60s
was fighting against unjust laws. Dr. King was
arrested in the '60s....
An objection was made and overruled and Mr.
Rosenblatt continued:
In this building, in this building, a temple
to the law, they were-there were drinking fountains
which said Whites Only.
Once again, an objection was made and overruled.
There is absolutely no justification for this
series of remarks, which appears to compare
the tobacco industry with slavery and, by invoking
civil rights leaders Rosa Parks and Martin Luther
King, appealed to the jury's sense of outrage
for the injustices visited upon African-Americans
in this country. We condemn these tactics of
Mr. Rosenblatt. His attempt to incite racial
passions was conduct unbecoming an attorney
practicing in our state courts.
[37] Nevertheless, we note that the trial court
sustained objections to several of these remarks
and no motion for mistrial was made or curative
instruction requested. In addition, there was
no further race-based argument during the remainder
of the closing, and, significantly, no such
references were made in any of Mr. Rosenblatt's
Phase I rebuttal argument.
[38] We next discuss the Third District's conclusion
that Mr. Rosenblatt's Phase I closing argument
was also replete with impermissible references
to jury nullification. The relevant comments
were made in response to Tobacco's preemption
defense: that the warnings on the cigarettes
were as provided by law. 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. As for the comment “legal
don't make it right,” Mr. Rosenblatt was referring
to the answers given by the CEO for Brown &
Williamson, Nick Brookes. Mr. *1274 Brookes
was asked what he would do with his product
if he became convinced that cigarettes caused
cancer and heart disease. His reply was it would
not affect his business because “it's a legal
product.” Mr. Rosenblatt's response was that
“legal don't make it right.” No objection was
made. In fact, this theme continued in rebuttal
when Mr. Rosenblatt explained without objection:
It's a legal product. There is no question
about it. But a legal product does not mean
that the cigarette companies are not responsible
when their product causes harm and death to
their customers. And being legal is a very relative
term.
These arguments were not an attempt to tell
the jury to ignore the law.
[39] We conclude, under the totality of the
circumstances, including that several objections
were sustained and a number of the arguments
were unobjected-to, that the defendants did
not sustain their burden of proving reversible
error under Murphy or that the trial court abused
its discretion in denying the motion for new
trial as to Phase I. As to Phase II, we note
that no arguments have been raised as to impermissible
comments during Phase II-A, in which the jury
determined compensatory damages as to the three
class representatives. Moreover, a review of
the verdicts reveals that each verdict reflected
a careful and differentiated analysis as to
comparative fault and individual damages and
in no way justifies the Third District's overall
conclusion that this was a runaway jury inflamed
by race because of the arguments directed to
the four of the six members of the jury who
were African-American. As to Phase II-B, because
we are reversing the punitive damages award
we do not separately review each of these arguments
except to again note that no race-based arguments
were made.
6. Reversal of Final Judgments in Favor of
the Three Class Representatives
[40] The issue of whether two of the three
Engle Class representatives are properly included
within the class as certified by the trial court
and approved on appeal involves the application
of the law to a set of undisputed facts. “[W]here
the facts are essentially undisputed, the legal
effect of the evidence will be a question of
law.” Town of Palm Beach v. Palm Beach County,
460 So.2d 879, 882 (Fla.1984). Questions of
law are reviewed de novo.
The trial court originally certified this class
on October 31, 1994. This order provided for
notice to the members of the class by way of
publication and indicated that the trial court
was to hold an additional hearing “to discuss
the content, timing and manner of providing
notice.” At that time, the class was described
as:
All United States citizens and residents, 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. The class shall specifically
exclude officers, directors and agents of the
[d]efendants.
Engle I, 672 So.2d at 40. The class certification
was affirmed by the Third District on January
31, 1996, but the class membership was altered
by the district court to include only Florida
citizens and residents. See id. at 42. Subsequent
to the district court's modification limiting
the class to Florida citizens, the trial court
issued an amended order on November 21, 1996,
recertifying the more limited class.
[41] The final class description could lead
one to believe that the class is open-ended
because there is no stated cut-off date for
membership. However, an open-ended class would
not allow for notice and *1275 an opportunity
to opt out as required by rule 1.220(d)(2) and
may implicate potential class members' right
of access to the courts under article I, section
21 of the Florida Constitution.
Further, without the ability to opt out, potential
plaintiffs could argue that they should be allowed
to intervene after a judgment in favor of the
class or, alternatively, that they are not bound
by an adverse judgment. Cf. Katz v. Carte Blanche
Corp., 496 F.2d 747, 759 (3d Cir.1974) (explaining
that prior to the adoption of Federal Rule of
Civil procedure 23(c)(2) some courts suggested
that “it would be proper to make the class action
determination and permit class members to intervene
after the defendant's liability had been determined
in the single lawsuit,” that this “one-way intervention
had the effect of giving collateral estoppel
effect to the judgment of liability in a case
where the estoppel was not mutual,” and that
the notice and opt-out provisions were adopted
to give mutual estoppel effect to the judgment
on liability). A finite class is necessary to
avoid multiple similar lawsuits and to make
legal process more effective and expeditious,
important goals of a class action suit. See
Tenney v. City of Miami Beach, 152 Fla. 126,
11 So.2d 188, 189 (1942) (“The very purpose
of a class suit is to save a multiplicity of
suits, to reduce the expense of litigation,
to make legal processes more effective and expeditious,
and to make available a remedy that would not
otherwise exist.”).
[42] The plain language of the class certification
indicates that the trial court anticipated that
the class would be cut off or limited to the
date of final certification. The phrase “who
have suffered, presently suffer or have died”
supports the view that the class should include
only those people who were affected in the past
or who were presently suffering at the time
the class was recertified by the trial court.
Moreover, although not controlling, federal
case law supports the interpretation that the
date of final class certification should be
presumed the proper cut-off date for class membership.
See Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct.
553, 42 L.Ed.2d 532 (1975) ( “A litigant must
be a member of the class which he or she seeks
to represent at the time the class action is
certified by the district court.”) (citing Bailey
v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d
512 (1962)); Davis v. Ball Mem'l Hosp. Ass'n,
753 F.2d 1410, 1420 (7th Cir.1985) (“To be a
proper class representative, the named plaintiff
must be a member of the class at the time the
class action is certified.”).
In our view, it is reasonable to conclude that
the cut-off date for class membership is November,
21, 1996, the date the trial court recertified
the class and issued an amended order conforming
the class description to the Third District's
decision. It was with this November 21, 1996,
order that the circuit court first ordered that
notice to potential class members be published
in newspapers and magazines circulated in Florida.
The language employed by the United States Supreme
Court in Sosna, although not addressing a scenario
such as we face today, is not contrary to our
conclusion.
[43] Relying upon Davis v. Ball Memorial Hospital
Association, the district court held that “[s]ince
Farnan was diagnosed in April 1996, and Della
Vecchia was diagnosed in February 1997, they
are clearly excluded from the class and the
judgment in their favor must be reversed.” Engle
II, 853 So.2d at 454 n. 23 (emphasis supplied).
However, “diagnosis” as a qualifying factor
does not appear anywhere in the description
of the class certified. Rather, the class is
described as those “who have suffered, presently
suffer or *1276 have died from diseases and
medical conditions.” Engle I, 672 So.2d at 40
(emphasis supplied). The critical event is not
when an illness was actually diagnosed by a
physician, but when the disease or condition
first manifested itself.
[44] [45] Our review of the medical records
demonstrates that class representative Farnan
was formally diagnosed with lung cancer in March
of 1996, clearly demonstrating her disease had
manifested by that time. Therefore, she was
a proper member of the class at the time of
the circuit court's November 21, 1996, order.
As for class representative Della Vecchia, it
was noted by her doctors in early 1997 that
she had a past medical history of “COPD” and
significant hypertension. Thus, Della Vecchia's
medical records indicate that she had been suffering
from a tobacco-related disease prior to the
time of certification and is also properly included
as a class member. We therefore quash the district
court's reversal of judgment entered in favor
of class representatives Farnan and Della Vecchia
and hereby order that the judgments be reinstated.
[46] In addition to reversing the judgments
in favor of Farnan and Della Vecchia, the district
court also held that the judgment in favor of
Tobacco should have been entered as to all of
class representative Amodeo's claims. See Engle
II, 853 So.2d at 455 n. 23. We agree that the
district court properly held that all judgments
in favor of class representative Amodeo were
barred by the applicable statute of limitations.
6. Final Judgments Entered in Favor of the
Three Class Representatives in Favor of Liggett
and Brooke
[47] [48] As noted above, the final judgments
entered in favor of class representative Amodeo,
including those against Liggett and Brooke,
must be reversed because Amodeo's claims are
barred by the statute of limitations. We also
agree with the Third District that the judgments
against defendants Liggett and Brooke in favor
of Farnan and Del Vecchia must be reversed because
there was insufficient evidence to support these
judgments. As the Third District explained,
“it is undisputed that the Liggett defendants
did not manufacture or sell any of the products
that allegedly caused injury to the individual
plaintiff representatives. It is also undisputed
that the jury found the Liggett defendants zero
percent at fault with respect to each of the
named plaintiffs.” Engle II, 853 So.2d at 466
n. 46. A defendant who is found to be zero percent
at fault for a plaintiff's damages cannot be
held jointly and severally liable for those
damages. We agree with the Third District that
this inconsistency in the verdict requires reversal
of the judgments entered against Liggett and
Brooke. See id.
CONCLUSION
In conclusion, we approve the Third District's
holding that the $145 billion award of punitive
damages must be vacated. However, we disapprove
the Third District's conclusion that the class
action punitive damages claims were barred by
the FSA.
We also disapprove the Third District's holding
that the trial court abused its discretion in
denying Tobacco's motion for a mistrial due
to improper argument by the Engle Class's counsel.
We uphold the award of compensatory damages
as to plaintiffs Farnan and Della Vecchia, and
approve the reversal of the entry of judgment
in favor of Amodeo. However, the judgments against
defendants Liggett and Brooke must reversed.
We approve the Phase I findings for the class
as to Questions 1 (that smoking cigarettes*1277
causes aortic aneurysm, bladder cancer, cerebrovascular
disease, cervical cancer, chronic obstructive
pulmonary disease, coronary heart disease, esophageal
cancer, kidney cancer, laryngeal cancer, lung
cancer (specifically, adenocarinoma, large cell
carcinoma, small cell carcinoma, and squamous
cell carcinoma), complications of pregnancy,
oral cavity/tongue cancer, pancreatic cancer,
peripheral vascular disease, pharyngeal cancer,
and stomach cancer), 2 (that nicotine in cigarettes
is addictive), 3 (that the defendants placed
cigarettes on the market that were defective
and unreasonably dangerous), 4(a) (that the
defendants concealed or omitted material information
not otherwise known or available knowing that
the material was false or misleading or failed
to disclose a material fact concerning the health
effects or addictive nature of smoking cigarettes
or both), 5(a) (that the defendants agreed to
conceal or omit information regarding the health
effects of cigarettes or their addictive nature
with the intention that smokers and the public
would rely on this information to their detriment),
6 (that all of the defendants sold or supplied
cigarettes that were defective), (7) (that all
of the defendants sold or supplied cigarettes
that, at the time of sale or supply, did not
conform to representations of fact made by said
defendants), and 8 (that all of the defendants
were negligent). Therefore, these findings in
favor of the Engle Class can stand.
The class consists of all Florida residents
fitting the class description as of the trial
court's order dated November 21, 1996. However,
we conclude for the reasons explained in this
opinion that continued class action treatment
is not feasible and that upon remand the class
must be decertified. Individual plaintiffs within
the class will be permitted to proceed individually
with the findings set forth above given res
judicata effect in any subsequent trial between
individual class members and the defendants,
provided such action is filed within one year
of the mandate in this case. We remand this
case to the Third District for further proceedings
consistent with this opinion.
It is so ordered.
ANSTEAD and PARIENTE, JJ., concur.
LEWIS, C.J., concurs in part and dissents in
part with an opinion, in which QUINCE, J., concurs.
WELLS, J., concurs in part and dissents in
part with an opinion, in which BELL, J., concurs.
CANTERO, J., recused.
LEWIS, C.J., concurring in part and dissenting
in part.
I concur in the majority's opinion and most
of the reasoning employed therein. However,
I cannot agree with the majority's analysis
and conclusion with regard to entitlement to
punitive damages. For the reasons that follow,
in my view Florida law clearly requires that
the jury's determination of entitlement to punitive
damages which resulted in Phase I must stand.
PHASE I FINDINGS ON ENTITLEMENT TO PUNITIVE
DAMAGES
Although I do agree with the majority's conclusion
that the Third District misapplied our decision
in Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989),
in holding that compensatory damages must be
determined before a jury can consider entitlement
to punitive damages, I cannot agree with the
majority's view that the trial court erred in
allowing the jury to consider the entitlement
of the class to punitive damages during Phase
I of the trial based *1278 on the majority's
conclusion that proof of liability, which includes
both reliance and causation, is a missing predicate
here to the determination of entitlement to
punitive damages. For the reasons that follow,
I would allow the jury's determination of punitive
conduct and of entitlement to punitive damages
to stand for the class to be later applied as
the case proceeds.
This Court has previously addressed “whether
a plaintiff can recover punitive damages where
the factfinder has found a breach of duty but
no compensatory or actual damages have been
proven.” Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989).
In Ault, we clearly recognized that “an express
finding of a breach of duty should be the critical
factor in an award of punitive damages.” Id.
Further, this Court has held that “a finding
of liability alone will support an award of
punitive damages ‘even in the absence of financial
loss for which compensatory damages would be
appropriate.’ ” Id. (quoting Lassitter v. Int'l
Union of Operating Eng'rs, 349 So.2d 622, 626
(Fla.1977)); see also Mortellite v. Am. Tower,
L.P., 819 So.2d 928, 935 (Fla. 2d DCA 2002)
(concluding that, based on the trial court's
finding of breach of duty, the appellant was
ultimately entitled to a punitive damage award
even if, after remand, it was again determined
that he was not entitled to compensatory damages);
Horizon Leasing v. Leefmans, 568 So.2d 73, 75
(Fla. 4th DCA 1990) (“[A] plaintiff can recover
punitive damages where the fact finder has found
a breach of duty but no compensatory or actual
damages have been proven.”).
In this matter, Tobacco asserts, and the majority
agrees, that the jury in Phase I only determined
that Tobacco breached its duty and that a breach
of duty does not constitute “a finding of liability”
under Ault. Contrary to this assertion, the
Phase I jury in the present case found Tobacco
responsible with regard to the common core issues
pertaining to liability and general causation.
This is supported by the fact that the trial
plan only allowed the jury to proceed to the
next stage of Phase I-a determination of entitlement
to punitive damages-if liability was found.
The final judgment awarding compensatory damages
to the three class representatives and punitive
damages to the entire class was only possible
after liability was determined because a judgment
for damages could not be entered if there had
been no finding of liability. See Oliveira v.
Ilion Taxi Aero LTDA, 830 So.2d 241, 242 (Fla.
4th DCA 2002) (recognizing “as does Ault, that
as a matter of law a judgment for damages cannot
be entered where there is no finding of liability”);
Cont'l Assurance Co. v. Davis, 538 So.2d 542,
544 (Fla. 1st DCA 1989) (concluding that “absent
the jury's finding of liability on the underlying
fraud issue, there can be no valid award of
punitive damages,” citing Ault ); Cloutier v.
Cent. Contracting, Inc., 418 So.2d 1233, 1234
(Fla. 5th DCA 1982) (concluding that a verdict
finding damages without finding liability cannot
support the damage award). Pursuant to Ault,
the jury's finding of liability and responsibility
with regard to the common core issues alone
in Phase I could support the jury's determination
that the class was entitled to punitive damages,
notwithstanding that compensatory damages have
not yet been awarded to all class members. In
fact, a final judgment awarding punitive damages
has been affirmed notwithstanding that the judgment
awarded no compensatory damages. See Russin
v. Richard F. Greminger, P.A., 563 So.2d 1089
(Fla. 4th DCA 1990) (citing Ault ). A finding
of liability, not compensatory damages, is the
sine qua non of entitlement to a punitive damage
award.
In support of its argument that compensatory
damages are a prerequisite for *1279 awarding
punitive damages, Tobacco relies, as did the
subsequent panel in Engle II, on only a concurring
opinion in Ault, in which it was stated:
The crucial element in determining whether
punitive damages may be awarded absent an award
of compensatory damages is proof of the underlying
cause of action. Where actual damage is an essential
element of the underlying cause of action, an
award of compensatory damages must be a prerequisite
to an award of punitive damages. This case involved
the torts of assault and battery, which do not
require proof of actual damage.
853 So.2d at 457 (Ehrlich, C.J., concurring
specially). However, a majority of this Court
did not agree with that statement and did not
join with that concurring opinion and, therefore,
it is of no precedential value whatsoever. See
Greene v. Massey, 384 So.2d 24, 27 (Fla.1980)
(“A concurring opinion does not constitute the
law of the case nor the basis of the ultimate
decision unless concurred in by a majority of
the Court.... The special concurring opinion
has no precedential value and it cannot serve
to condition or limit the concurrence in the
[majority] opinion....”); Lendsay v. Cotton,
123 So.2d 745, 746 (Fla. 3d DCA 1960) (“A concurring
opinion has no binding effect as precedent;
such an opinion represents only the personal
view of the concurring judge and does not constitute
the law of the case.”). Moreover, neither the
Ault court nor any other Florida court has ever
addressed Ault in the class action context.
Due to the uniqueness and purpose of the class
action device, which allows a jury to determine
liability with regard to common issues first
before determining individual damages, in my
view, the jury's verdict in Phase I finding
Tobacco liable with regard to the common issues
is a sufficient predicate to constitute a “finding
of liability” under Ault. This conclusion is
supported by the fact that had the jury in Phase
I found Tobacco not liable with regard to the
common issues of liability and general causation
each class member's claim at that point would
have been rendered moot, thereby precluding
Phase II.
In addition, a key factor in considering whether
compensatory damages should be awarded prior
to a determination of entitlement to punitive
damages in a class action is whether the awarding
of one is critical to awarding the other. In
other words, is the relative timing of the awards
the determinative factor? I conclude that the
timing of the awards should not be the absolute
controlling factor.
Compensatory and punitive damages serve distinct
purposes. See Arab Termite & Pest Control
of Fla., Inc. v. Jenkins, 409 So.2d 1039, 1042-43
(Fla.1982). In Arab Termite we recognized the
distinction between compensatory and punitive
damages, specifically:
[T]he amount of compensation for loss is an
entirely separate matter from the amount of
punitive damages. Punitive damages apply to
wrongdoing not covered by the criminal law,
where the private injuries inflicted partake
of public wrongs. They are to be measured by
the enormity of the offense, entirely aside
from the measure of compensation for the injured
plaintiff.
Jenkins, 409 So.2d at 1042-43. In awarding
punitive damages, the focus is on the defendant's
conduct, not on the conduct of the plaintiff
or the extent of the injury to be compensated.
See Jenkins v. Raymark Indus., Inc., 782 F.2d
468, 474 (5th Cir.1986). While the purpose of
compensatory damages is “to restore the injured
party to the position it would have been [in]
had the wrong not been committed,” *1280 Laney
v. Am. Equity Inv. Life Ins. Co., 243 F.Supp.2d
1347, 1354 (M.D.Fla.2003), the purpose of punitive
damages “is not to further compensate the plaintiff,
but to punish the defendant for its wrongful
conduct and to deter similar misconduct by it
and other actors in the future.” Owens-Corning
Fiberglas Corp. v. Ballard, 749 So.2d 483, 486
(Fla.1999). “Punitive damages are appropriate
when a defendant engages in conduct which is
fraudulent, malicious, deliberately violent
or oppressive, or committed with such gross
negligence as to indicate a wanton disregard
for the rights of others.” W.R. Grace &
Co.-Conn. v. Waters, 638 So.2d 502, 503 (Fla.1994).
The punitive damage inquiry, unlike that for
compensatory damages, “focuses primarily on
the egregiousness of the defendant's conduct.”
Watson v. Shell Oil Co., 979 F.2d 1014, 1019
(5th Cir.1992).
Moreover, the United States Supreme Court has
also recognized the distinct purposes of compensatory
and punitive damages:
The former are intended to redress the concrete
loss that the plaintiff has suffered by reason
of the defendant's wrongful conduct. The latter,
which have been described as “quasi-criminal,”
operate as “private fines” intended to punish
the defendant and to deter future wrongdoing.
A jury's assessment of the extent of a plaintiff's
injury is essentially a factual determination,
whereas its imposition of punitive damages is
an expression of its moral condemnation.
Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149
L.Ed.2d 674 (2001) (citations omitted). Punitive
damages “are not compensation for injury. Instead,
they are private fines levied by civil juries
to punish reprehensible conduct and to deter
its future occurrence.” Gertz v. Robert Welch,
Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d
789 (1974). Punitive damages “serve a broader
function; they are aimed at deterrence and retribution.”
State Farm Mutual Auto. Ins. Co. v. Campbell,
538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d
585 (2003).
Entitlement to punitive damages, therefore,
aimed at deterrence and retribution for a public
wrong, is distinct and not dependent on the
specific injury suffered by the class member.
While no plaintiff in the Engle Class may ultimately
receive an award of punitive damages without
proving that he or she suffered actual damages
in Phase III, the determination with regard
to entitlement to punitive damages on a class
basis need not be made concurrently with an
evaluation of a particular claimant. See Sterling
v. Velsicol Chemical Corp., 855 F.2d 1188, 1217
(6th Cir.1988) (“[T]he district court need not
defer its award of punitive damages prior to
determining compensatory damages for the entire
class of 128 individuals. So long as the court
determines the defendant's liability and awards
representative class members compensatory damages,
the district court may in its discretion award
punitive damages to the class as a whole at
that time.”) Moreover, although the Unites States
Supreme Court has recognized that “compensatory
damages and punitive damages are typically awarded
at the same time by the same decisionmaker,”
it has never held that entitlement to these
damages must absolutely be assessed at the same
time. Cooper Indus., Inc., 532 U.S. at 432,
121 S.Ct. 1678 (emphasis supplied). Therefore,
in my view, the relative timing of the assessment
of entitlement to punitive damages and a compensatory
damage award is not critical. See Jenkins, 782
F.2d at 474. But see Allison v. Citgo Petroleum
Corp., 151 F.3d 402, 417-18 (5th Cir.1998).
It is important to highlight the distinction
between a jury determination that a class is
entitled to punitive damages before *1281 compensatory
damages have been actually awarded versus an
actual jury award of a specific amount to a
class as a lump sum punitive damage award before
compensatory damages have been determined. In
my view, the former comports with the requirements
of due process while the latter, as the majority
correctly concludes, does not. However, contrary
to the conclusion reached by the majority, in
my view, the trial court did not abuse its discretion
in allowing the jury in Phase I of the trial
plan to determine whether the class was entitled
to punitive damages after liability regarding
the common issues had been determined. Notwithstanding
the above, I concur in the majority's holding
which disapproves the trial court's trial plan
in Phase II-B in which it allowed a lump sum
punitive damage award to be determined prior
to a determination of individual class members'
compensatory damage awards, which will occur
in Phase III, based on due process concerns.
A simple determination of entitlement to punitive
damages on a class basis does not violate Tobacco's
due process rights because no class member will
be awarded punitive damages until the class
member has been awarded compensatory damages
in Phase III. See In re New Orleans Train Car
Leakage Fire Litigation, 795 So.2d 364, 379
(La.Ct.App.2001) (determining that there was
no due process violation where the quantum of
punitive damages was determined when the quantum
of compensatory damages had been determined
as to only 20 of 8,047 plaintiff class members).
Ultimately, Tobacco will not be required to
pay a class member punitive damages until that
class member demonstrates his or her entitlement
to compensatory damages in Phase III. Tobacco
will have the opportunity to be heard at each
Phase III trial with regard to why that individual
plaintiff is not entitled to compensatory damages.
To date, Tobacco has not been required to pay
any class member a punitive damage award. Therefore,
because Tobacco in Phase III will be heard with
regard to each class member's compensatory damage
claim before they are required to pay that class
member any punitive damages, I conclude that
Phases I and II-A of the trial court's trial
plan did not violate Tobacco's due process rights,
and that the jury's finding with regard to entitlement
to punitive damages should stand. The majority
today has inflicted serious harm to class actions
which involve egregious behavior and has done
so contrary to the clear law of Florida.
CONCLUSION
For the above reasons, I respectfully dissent
from the portion of the majority opinion that
reasons and holds that it was error for the
trial court to allow the jury to make a determination
of the entitlement of the class to punitive
damages during Phase I of the trial. If the
majority had properly analyzed and discussed
the availability of the class action status
here the contrary result on the punitive issue
would have been obvious. I concur in the majority's
decision in all other respects.
QUINCE, J., concurs.
WELLS, J., concurring in part and dissenting
in part.
I concur with the following in the majority
decision and opinion:
1. Approving the Third District Court of Appeal's
reversal of the $145 billion class action punitive
damages award.
2. Approving the Third District's reversal
of the judgment on behalf of plaintiff Amodeo.
3. Holding that the Third District misapplied
Young v. Miami Beach Improvement Co., 46 So.2d
26 (Fla.1950), to the extent that the Third
District's decision *1282 would bar individual
smokers' claims. I do not, though, join in the
majority's opinion to the extent that it implies
that there could be a proper class action for
smokers' claims.
4. Holding that the trial court erred in allowing
the jury to find entitlement to punitive damages
in Phase I of the trial.
5. Holding that the class be decertified.
I dissent as to all other parts of the majority
decision and opinion for the reasons that I
will write about in this opinion. In sum, I
would affirm the remainder of the Third District's
extensive opinion, except that I would provide
that any individual who can show that he or
she relied on being a member of the class certified
by the trial court in this case and based on
that reliance did not bring an individual action
would be allowed to file suit within one year
of our decision becoming final.FN15
FN15. There is no record of how many, if any,
unnamed individuals relied upon being members
of the class and thus did not file an independent
action. I conclude that the latest date that
this class could have closed was November 21,
1996, so that individuals would have to have
claims which were not barred on that date. To
avoid barring any of those individuals who did
in good faith rely upon being members of the
class, I would order that the statute of limitations
can be avoided for those individuals or claims
filed for one year from the date of our decision
becoming final. An individual would have to
plead and prove the avoidance as a reply to
a statute of limitation affirmative defense
pursuant to Florida Rule of Civil Procedure
1.100(a). I believe that this procedure would
conform to what this Court allowed in Lance
v. Wade, 457 So.2d 1008 (Fla.1984).
ANALYSIS
Overview
The bottom line is that this was not properly
a class action. The Third District's decision
that this was not a proper class action is in
accord with the overwhelming majority of courts
from numerous jurisdictions. The Third Circuit
in Barnes v. American Tobacco Co., 161 F.3d
127, 143 (3d Cir.1998), explains why:
In decertifying the class, the District Court
decided that “too many individual issues exist
which prevent this case from proceeding as a
class action.” Barnes [v. American Tobacco Co.],
176 F.R.D. [479,] at 500. As noted, the District
Court found that addiction, causation, and affirmative
defenses all presented individual issues not
properly decided in a class action. We believe
that addiction, causation, the defenses of comparative
and contributory negligence, the need for medical
monitoring and the statute of limitations present
too many individual issues to permit certification.
As in Amchem [Products, Inc. v. Windsor, 521
U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)
], plaintiffs were “exposed to different ...
products, for different amounts of time, in
different ways, and over different periods.”
See Amchem, [521 U.S. at 624, 117 S.Ct. 2231]
(citation omitted). These disparate issues make
class treatment inappropriate. [n. 19]
[n. 19.] We note that the individual issues
raised by cigarette litigation often preclude
class certification. See, e.g., Castano v. The
American Tobacco Co., 84 F.3d 734 (5th Cir.1996)
(decertifying 23(b)(3) class because individual
issues predominated); Smith v. Brown & Williamson
Tobacco Corp., 174 F.R.D. 90 (W.D.Mo.1997) (denying
certification under 23(b)(1), (2) & (3)
because of the presence of individual issues);
Ruiz v. The American Tobacco Co., 180 F.R.D.
194 (D.Puerto Rico 1998) (denying certification
under 23(b)(2) and 23(b)(3) because “cigarette
addiction” claims raised too *1283 many individual
issues). Significantly, no federal appeals court
has upheld the certification [of] a class of
cigarette smokers or reversed a District Court's
refusal to certify such a class. In some state
cases, however, plaintiff smokers have succeeded
in certification. See Richardson v. Phillip
Morris, No. 96145050/CE212596[, 1998 WL 35164799]
(Baltimore Cir. Ct. Jan. 28, 1998) (certifying
class of Maryland smokers seeking compensatory
and punitive damages); R.J. Reynolds Tobacco
Co. v. Engle, 672 So.2d 39 (Fla.App. 3 Dist.1996),
rev. denied, 682 So.2d 1100 (1996) (certification
of state-wide class of tobacco smokers suing
for damages caused by smoking).FN16
FN16. Barnes was decided, and thus this footnote
was written, before the Maryland Court of Appeals
(Maryland's court of last resort) held that
the class action in the Maryland case cited
was not proper and decertified the class in
Philip Morris v. Angeletti, 358 Md. 689, 752
A.2d 200 (2000).
Castano v. American Tobacco Co., 84 F.3d 734
(5th Cir.1996), was the initial case which comprehensively
examined whether a class action could be pursued
in tobacco litigation. While Castano was a class
action claiming a nationwide class and the present
case was limited to a Florida class, much of
the analysis is applicable to the present case.FN17
The Castano court stated:
FN17. See Susan E. Kearns, Decertification of
Statewide Tobacco Class Actions, 74 N.Y.U. L.Rev.
1336 (1999).
The Castano class suffers from many of the difficulties
that the Georgine [v. Amchem Prods., 83 F.3d
610 (3d Cir.1996),] court found dispositive.
The class members were exposed to nicotine through
different products, for different amounts of
time, and over different time periods. Each
class member's knowledge about the effects of
smoking differs, and each plaintiff began smoking
for different reasons. Each of these factual
differences impacts the application of legal
rules such as causation, reliance, comparative
fault, and other affirmative defenses.
Id. at 742-43 n. 15. The United States Supreme
Court's analysis in Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 624-25, 117 S.Ct. 2231,
138 L.Ed.2d 689 (1997), instructs on the point
in rejecting a settlement of an asbestos litigation
class action. Other cases with similar holdings
are: Philip Morris USA Inc. v. Hines, 883 So.2d
292 (Fla. 4th DCA 2003); Estate of Mahoney v.
R.J. Reynolds Tobacco Co., 204 F.R.D. 150, 156
(S.D.Iowa 2001); Badillo v. American Tobacco
Co., 202 F.R.D. 261, 264 (D.Nev.2001); Guillory
v. American Tobacco Co., No. 97 C 8641, 2001
WL 290603 at *20, *24, *27 (N.D.Ill. Mar.20,
2001); Aksamit v. Brown & Williamson Tobacco
Corp., No. C.A. 6:97-3636-24, 2001 WL 1809378
at *24 (D.S.C. Dec.29, 2000); Thompson v. American
Tobacco Co., 189 F.R.D. 544, 551 (D.Minn.1999);
Hansen v. American Tobacco Co., No. LR-C-96-881,
1999 WL 33659388, *2, 1999 U.S. Dist. LEXIS
11277 at *7 (E.D.Ark. July 21, 1999); Insolia
v. Philip Morris Inc., 186 F.R.D. 535, 546 (W.D.Wis.1998);
Emig v. American Tobacco Co., 184 F.R.D. 379,
389 (D.Kan.1998); Barreras Ruiz v. American
Tobacco Co., 180 F.R.D. 194, 197 (D.P.R.1998);
Smith v. Brown & Williamson Tobacco Corp.,
174 F.R.D. 90, 94 (W.D.Mo.1997); In re Simon
II, 407 F.3d 125 (2d Cir.2005); Arch v. American
Tobacco Co., Inc., 175 F.R.D. 469 (E.D.Pa.1997).
I recognize that a problem exists in this case
because of the interlocutory appeal to *1284
the Third District in which a different panel
of the Third District approved a class action
for a class composed of Florida smokers. But
I also recognize that the 1996 decision by the
Third District was made at a time when this
case was only in the pleading stage. At the
time of the 1996 decision, there was no trial
plan with Phases I, II, and III. In fact, the
three individuals who became the class representatives
and who presented claims for compensatory damages,
Farnan, Della Vecchia, and Amodeo, were added
as class representatives after the Third District's
1996 decision. Though the trial court proceeded
on the basis of the 1996 Third District decision,
for the reasons stated by the Second District
in Toledo v. Hillsborough County Hospital Authority,
747 So.2d 958 (Fla. 2d DCA 1999), the 1996 decision
in the interlocutory appeal should not be given
law-of-the-case effect: “Due to the trial court's
broad authority to alter or amend orders determining
class certification, the doctrine of law of
the case ‘applies only sparingly in class certification
proceedings.’ Fair Housing for Children Coalition,
Inc. v. Pornchai Int'l, 890 F.2d 420, at 421
(9th Cir.1989) (unpublished disposition).” Toledo,
747 So.2d at 960. The present majority apparently
agrees because the majority ultimately decertifies
the class.
In what I conclude will be harmful and confusing
precedent, the majority saves some of the jury
findings in Phase I of the class action before
decertifying the class. I do not join in doing
that; rather, I would follow the overwhelming
majority of courts and hold that this was not
a proper class action. The result of the majority
“retaining the jury's Phase I findings” is not,
as the majority asserts, “pragmatic,” majority
op. at 1269; rather, it is problematic. Under
the majority's holding, the class closed a decade
ago. Who are the individuals that are to get
the use of these “findings”? How will a trial
court make that determination? Does the individual
only have to have an injury manifest prior to
November 21, 1996, or does the individual have
to have notice of the class action? Does the
majority's holding mean that the statute of
limitation has not run on any Florida resident's
claim whose injury manifested prior to November
21, 1996? How long do individuals have to file
such individual actions? How are these findings
to be used in cases in which the findings are
used? I assume that any individual cases filed
on claims in which injuries manifested on November
22, 1996, or later do not get the benefit of
these findings, so that there will be two classes
of claimants. These are only a few of the issues
which arise in application of the majority's
holding.
Punitive Damages
As previously stated, I concur in the majority's
holding that agrees with the Third District
that the trial court erred in allowing the jury
to consider entitlement to punitive damages
during the Phase I trial. I do not concur, however,
with the majority's opinion that an award of
compensatory damages is not a prerequisite to
a finding of entitlement to punitive damages
and that an award of compensatory damages need
not precede a determination of entitlement to
punitive damages. I do not concur because the
majority's opinion is in conflict with the Supreme
Court's decisions in BMW of North America, Inc.
v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d
809 (1996), and State Farm Mutual Automobile
Insurance Co. v. Campbell, 538 U.S. 408, 418,
123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
The Supreme Court has made it clear that punitive
damages must be in ratio to compensatory damages.
In fact, the majority quotes a passage from
the Campbell decision which makes this clear.
It necessarily*1285 follows, then, that there
must be compensatory damages in order for punitive
damages to be in ratio to compensatory damages.
Thus, I conclude that the majority decision
here is in conflict with the Supreme Court decisions
and is thereby erroneous.
Law-of-the-Case Class Certification
I have previously stated why the law-of-the-case
doctrine should not apply to the Third District's
2003 review of this case, which followed the
Phase I and Phase II jury trials and judgments.
Florida Department of Transportation v. Juliano,
801 So.2d 101 (Fla.2001), should not be applied
in this class action. Moreover, since the majority
ends up decertifying the class, I fail to understand
the point of the majority's discussion of this
issue. Majority op. at 1265-67.
The Third District in its 2003 opinion correctly
explains why the law-of-the-case doctrine does
not apply. Liggett Group, Inc. v. Engle, 853
So.2d 434, 443 n. 4 (Fla. 3d DCA 2003). Furthermore,
as the majority states, “Of course, this Court
is not bound by the Third District's law of
the case.” Majority op. at 1267.
In the present case, the trial plan was not
decided by the trial court until after the 1996
interlocutory appeal. The defendants objected
to the trial plan and moved to decertify the
class. The trial court denied the motion, although
it expressed reservations about the manageability
of the case and predicted that the necessary
individual hearings will place a serious demand
upon Florida's judicial resources. The denial
of the defendant's motion to decertify was then
appealed to the Third District. The Third District
dismissed the appeal for lack of jurisdiction
but expressly stated that the defendants had
a right to obtain review of the propriety of
the order by plenary appeal from any adverse
judgment. Engle, 853 So.2d at 443. But now the
majority in this Court makes the trial plan
unreviewable in the district court by applying
the law of the case to the earlier certification.
Certainly, the trial plan should have been reviewable
by the district court as part of a review of
the motion to decertify after the trial plan
was ordered.FN18 It was the trial plan which
demonstrated just how unworkable this class
action was and why the class should have been
decertified. It was the trial plan which resulted
in the errors upon which the majority in this
Court reverses the trial court's final judgment.
FN18. See William Dodds, Trial Plans Come to
Class Action Arena, 226 N.Y. Law J. (Aug. 13,
2001) at 2:
Faced with actions that seek to aggregate claims
of increasingly broad and disparate groups of
plaintiffs, many courts across the country now
require that plaintiffs, and sometimes both
parties, prepare detailed trial plans at the
time of or in advance of class certification.
For example, in In re Ford Motor Company Vehicle
Paint Litigation, 182 F.R.D. 214, 224 (E.D.La.1998),
the district court required the plaintiff to
submit a trial plan, saying it was constrained
from “certifying a class now and worrying about
how to try it later.” Similarly, in Southwestern
Refining Co., Inc. v. Bernal, 22 S.W.3d 425,
435 (Tex.2000), the Texas Supreme Court declared
that “it is improper to certify a class without
knowing how the claims can and will likely be
tried,” requiring plaintiffs to submit trial
plans prior to certification.
It was the trial plan which resulted in the
Phase I jury deciding whether the defendants
were negligent, breached warranties, were strictly
liable, or were guilty of fraud and misrepresentation,
but Phase II decided the claimant's comparative
fault. Such a bifurcation of issues violates
article I, section 22 of the Florida Constitution,
just as the Fifth Circuit in Castano v. American
Tobacco Co., 84 F.3d 734 (5th Cir.1996), found
that such a bifurcation of *1286 issues violated
the Seventh Amendment to the United States Constitution.
The Castano court explained why a bifurcation
of the comparative negligence issue from the
defendant's negligence issue with a trial by
separate juries is a violation of the Seventh
Amendment to the United States Constitution:
Another factor weighing heavily in favor of
individual trials is the risk that in order
to make this class action manageable, the court
will be forced to bifurcate issues in violation
of the Seventh Amendment. This class action
is permeated with individual issues, such as
proximate causation, comparative negligence,
reliance, and compensatory damages. In order
to manage so many individual issues, the district
court proposed to empanel a class jury to adjudicate
common issues. A second jury, or a number of
“second” juries, will pass on the individual
issues, either on a case-by-case basis or through
group trials of individual plaintiffs.
The Seventh Amendment entitles parties to have
fact issues decided by one jury, and prohibits
a second jury from reexamining those facts and
issues. [n. 30] Thus, Constitution allows bifurcation
of issues that are so separable that the second
jury will not be called upon to reconsider findings
of fact by the first:
[T]his Court has cautioned that separation
of issues is not the usual course that should
be followed, and that the issue to be tried
must be so distinct and separable from the others
that a trial of it alone may be had without
injustice. This limitation on the use of bifurcation
is a recognition of the fact that inherent in
the Seventh Amendment guarantee of a trial by
jury is the general right of a litigant to have
only one jury pass on a common issue of fact.
The Supreme Court recognized this principle
in Gasoline Products [Co., Inc. v. Champlin
Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75
L.Ed. 1188 (1931) ].... The Court explained
... that a partial new trial may not be “properly
resorted to unless it clearly appears that the
issue to be retried is so distinct and separable
from the others that a trial of it alone may
be had without injustice.” Such a rule is dictated
for the very practical reason that if separate
juries are allowed to pass on issues involving
overlapping legal and factual questions the
verdicts rendered by each jury could be inconsistent.
Alabama v. Blue Bird Body Co., 573 F.2d 309,
318 (5th Cir.1978) (citations and footnotes
omitted).
[n. 30] “[N]o fact tried by jury, shall be
otherwise re-examined in any Court of the United
States ...” U.S. Const. amend VII.
The Seventh Circuit recently addressed Seventh
Amendment limitations to bifurcation. In [ In
re] Rhone-Poulenc [Rorer, Inc.], 51 F.3d [1293]
at 1302-03, Chief Judge Posner described the
constitutional limitation as one requiring a
court to “carve at the joint” in such a way
so that the same issue is not reexamined by
different juries. “The right to a jury trial
... is a right have juriable issues determined
by the first jury impaneled to hear them (provided
there are no errors warranting a new trial),
and not reexamined by another finder of fact.”
Id. at 1303.
Severing a defendant's conduct from comparative
negligence results in the type of risk that
our court forbade in Blue Bird. Comparative
negligence, by definition, requires a comparison
between the defendant's and the plaintiff's
conduct. *1287 Rhone-Poulenc, 51 F.3d at 1303
(“Comparative negligence entails, as the name
implies, a comparison of the degree of negligence
of plaintiff and defendant.”) At a bare minimum,
a second jury will rehear evidence of the defendant's
conduct. There is a risk that in apportioning
fault, the second jury could reevaluate the
defendant's fault, determine that the defendant
was not at fault, and apportion 100% of the
fault to the plaintiff. In such a situation,
the second jury would be impermissibly reconsidering
the findings of a first jury. The risk of such
reevaluation is so great that class treatment
can hardly be said to be superior to individual
adjudication.
84 F.3d at 750-51. Every smoker's case has
a substantial comparative fault defense.
The majority's opinion approves one jury making
the decision on the defendant's negligence and
a different jury making a decision on the plaintiff's
negligence and comparing the two. The second
jury will be required to accept the first jury's
findings as to the defendant's negligence and
then in some way compare the defendant's negligence
with the second jury's finding as to the plaintiff's
negligence. It is only logical that comparative
negligence, which the second jury will be finding,
is an evaluation of how the negligence of the
two parties relate. That can only be accomplished
by weighing the evidence of each party's negligence
as a cause of the defendant's negligence, which
the majority's bifurcation of negligence and
comparative negligence prevents from occurring
on the basis of one jury's findings. Similarly,
there is no logical way to decide the issues
of misrepresentation and the element within
misrepresentation of reliance by separate juries
without having the second jury required to accept
the findings of the first jury. Both constitutionally
and practically, these are issues which should
be decided by one fact-finder so that there
is consistency in the resolution of the facts.
The majority states that it will follow the
Fifth Circuit's two-to-one majority opinion
in Mullen v. Treasure Chest Casino, LLC, 186
F.3d 620, 628-29 (5th Cir.1999), rather than
the Fifth Circuit's decision in Castano. I cannot
agree. Mullen was not a smoker's case. Mullen
was a case brought under the federal Jones Act,FN19
in which the claims by the individuals were
from the same defective ventilation system in
a floating casino that occurred over the same
general period of time. The Mullen majority
pointed out that these were important distinguishing
facts from Castano and from the asbestos case
decided by the Supreme Court in Amchem Products,
Inc. Moreover-and very significantly-the Mullen
majority specifically pointed out that as in
Treasure Chest, the defendant in the Mullen
case did not raise in the trial court the Seventh
Amendment issue of having one jury consider
the defendant's conduct and another consider
the plaintiffs' comparative negligence. I find
the dissent in Mullen, which adheres to Castano
and In re Rhone-Poulenc Rorer, Inc., 51 F.3d
1293, 1302-03 (7th Cir.1995), to be the view
which is correct for smokers' cases in Florida.
FN19. 46 U.S.C. § 688 (1988).
Finally, the majority opinion decides that the
cut-off date for class membership should be
November 21, 1996. Majority op. at 1274. This
was, of course, after the Third District decision
in the interlocutory appeal, which was issued
on January 31, 1996. R.J. Reynolds Tobacco Co.
v. Engle, 672 So.2d 39 (Fla. 3d DCA 1996). It
is wholly inconsistent for the majority to apply
the law of the 1996 case to prevent the Third
District's 2003 review of the certification
and to also hold that the cut-off date *1288
for the class was after the 1996 review. This
results in the actual order of certification
being unreviewable in the district court.
Closing Arguments and Individual Judgments
I dissent from the majority's decision that
the blatantly improper closing arguments do
not require reversal. The Third District's decision
concerning this offensive argument was precisely
correct. There is no way to read the argument
of plaintiff's counsel other than to conclude
that it dwelled upon issues which are and should
be per se reversible error because the arguments
were intended to have jurors make their decisions
on issues which had no relevancy or materiality
in the case. These arguments were extreme in
my view. I will not join in a decision which
affirms judgments which in part are a result
of such arguments.
It is because of the closing arguments that
the judgments for compensatory damages on behalf
of Farnan and Della Vecchia against the defendants
other than Liggett and Brooke FN20 must be reversed.
Additionally, the individual verdicts cannot
stand because the closing argument in Phase
I was not only materially tainted by racial
pandering and pleas for nullification but was
also materially tainted by arguments which would
have only been appropriate in seeking punitive
damages. Since, as the majority has held, it
was improper for the trial court to allow the
Phase I jury to consider punitive damages, the
arguments in support of punitive damages were
improper and wrongfully prejudiced the defendants
from receiving a fair trial in Phase I. This
is still another reason why it is error for
the majority to allow some of the Phase I jury
findings to stand.
FN20. The majority held that the Third District
was correct that the judgments against Liggett
and Brooke should be reversed on other grounds.
I agree.
CONCLUSION
For the foregoing reasons, I concur with the
majority's reversal of the $145 billion judgment;
reversal of the judgment in behalf of Amodeo;
holding that the Third District misapplied Young
v. Miami Beach Improvement Co., 46 So.2d 26
(Fla.1950); and holding that the trial court
erred in allowing the jury to find entitlement
to punitive damages in Phase I of the trial.
I dissent to all other parts of the majority
decision and opinion.
BELL, J., concurs.
945 So.2d 1246, 32 Fla. L. Weekly S1
Briefs and Other Related Documents (Back to
top)
• 2004 WL 1873050 (Appellate Brief) Reply Brief
of Petitioners, Florida Engle Class, on the
Merits (Aug. 16, 2004) Original Image of this
Document (PDF)
• 2004 WL 1868928 (Appellate Brief) Brief of
Amici Curiae, American Public Health Association
American Medical Association American Academy
of Pediatrics American Heart Association American
Lung Association American Legacy Foundation
Roswell Park Cancer Institute (Aug. 2, 2004)
• 2004 WL 1671058 (Appellate Brief) Brief on
the Merits of All Respondents Other than Liggett
and Brooke (Jul. 16, 2004) Original Image of
this Document (PDF)
• 2004 WL 1868931 (Appellate Brief) Joinder
of Sylvester Comprehensive Cancer Center/University
of Miami Hospital and Clinics and the Women's
Cancer League of Greater Miami in %iAmici Curiae%i
Brief Filed in Support of Engle Class by: American
Public Health Association, American Medica l
Association, American Academy of Pediatrics,
American Heart Association, American Lung Association,
American Legacy Foundation and Roswell Park
Cancer Institute (Jun. 21, 2004)
• 2004 WL 1452476 (Appellate Brief) Petitioners,
Florida Engle Class, Brief on the Merits (Jun.
17, 2004) Original Image of this Document (PDF)
• 2004 WL 2308792 (Appellate Brief) Brief of
Amici Curiae Trial Lawyers for Public Justice,
Public Citizen, the Campaign for Tobacco-Free
Kids, and the American Cancer Society in Support
of Petitioners (Jun. 2004)
• 2004 WL 1152227 (Appellate Petition, Motion
and Filing) Petitioners' Motion to Reschedule
Oral Argument (May 18, 2004)
• 2004 WL 1453522 (Appellate Brief) Brief of
Amici Curiae, American Public Health Association
American Medical Association American Academy
of Pediatrics American Heart Association American
Lung Association American Legacy Foundation
Roswell Park Cancer Institute (2004)
• 2004 WL 1868929 (Appellate Brief) Brief of
Amici Curiae Tobacco Control Legal Consortium
and Tobacco Control Resource Center (2004) Original
Image of this Document (PDF)
• 2004 WL 1868930 (Appellate Brief) Brief of
Amici Curiae Trial Lawyers for Public Justice,
Public Citizen, The Campaign for Tobacco-Free
Kids, and The American Cancer Society in Support
of Petitioners (2004) Original Image of this
Document (PDF)
• 2003 WL 23145510 (Appellate Brief) Petitioners',
Florida Engle Class, Amended Brief on Jurisdiction
(Dec. 2, 2003)
• SC03-1856 (Docket) (Oct. 27, 2003)
• 2003 WL 23306355 (Appellate Petition, Motion
and Filing) Combined Brief on Jurisdiction of
All Respondents Other Than Liggett and Brooke
(2003) Original Image of this Document (PDF)
• 2003 WL 23306358 (Appellate Petition, Motion
and Filing) Petitioners', Florida Engle Class,
Amended Brief on Jurisdiction (2003) Original
Image of this Document (PDF)
• 2003 WL 23678664 (Appellate Brief) Answer
Brief on the Merits of Respondents Liggett Group
Inc. and Brooke Group Holding Inc. (2003) Original
Image of this Document (PDF)
• 2003 WL 23718399 (Appellate Brief) Amicus
Brief of Tobacco Trial Lawyers Association in
Support of Petitioner (2003) Original Image
of this Document (PDF)
• 2003 WL 23744581 (Appellate Brief) Brief of
Amicus Curiae the Chamber of Commerce of the
United States in Support of Respondents (2003)
Original Image of this Document (PDF)
END OF DOCUMENT
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