The case, brought by the estate of James Douglas, is one of about 7,000 individual smoker suits that were created by the Florida Supreme Court’s landmark 2006 Engle ruling. The Engle court, for those who’ve forgotten, decertified a massive class action but held that in future trials plaintiffs in the state wouldn’t have to prove that cigarettes are addictive and defective or that their manufacturers were negligent and hid the risks of smoking.
In a March 30 opinion, Florida’s Second District Court of Appeal ruled that a lower court was right to hold the three companies liable for Douglas’s lung cancer and death, rejecting the cigarette makers’ arguments that Engle didn’t absolve the plaintiff from proving causation. But the appellate judges threw the tobacco companies a potentially huge bone by certifying to the state supreme court a question that the defendants have been pressing since 2006: By granting the Engle jury’s findings res judicata effect, did the Engle court trample on the companies’ due process rights?
So far, the tobacco companies’ due process argument has fallen flat. The Second District–which examined the argument head on in Friday’s ruling–is the third intermediate state appellate court to discount it. The Florida Supreme Court itself considered the question six years ago and wasn’t persuaded. The U.S. Court of Appeals for the Eleventh Circuit has been the only court to suggest that the companies have a valid constitutional claim, but a federal district judge disagreed on remand. And finally, on March 26 the U.S. Supreme Court denied the tobacco companies’ cert petition to consider the question.
Given that history, and the Florida Supreme Court’s statistical reluctance to consider certified questions from lower courts, one of Douglas’s appellate lawyers told us that the tobacco companies are likely to fail to dismantle Engle once again. “If I was asked to gamble my children’s education on it, I would bet that the court [won't agree to consider the question],” said Celene Humphries of Brannock & Humphries.
The tobacco companies, Humphries noted, have prevailed in most of the dozens of trials they’ve faced since Engle. “The fact of the matter is that they’re winning more and more, and that doesn’t help the argument that they’re being denied due process,” she said. (To be sure, the defendants have also suffered losses, to the tune of about $375 million at last count.)
The defendants in the Douglas appeal are represented by Jones Day (for R.J. Reynolds); Shook, Hardy & Bacon and Carlton Fields (for Philip Morris); and Clarke Silverglate (for Liggett). We reached out to the lead lawyers but didn’t hear back.