Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit
Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit (Photo: Diego M. Radzinschi/ALM)

The U.S. Court of Appeals for the Eleventh Circuit issued a 284-page en banc opinion Thursday saying that smokers who won a class action against tobacco companies can also file individual lawsuits. The court ruled 7-3 in favor of the smokers.

There were some fireworks between the judges. Three wrote dissents. One called the process a “chaotic poker game” and said judges should “stick to our day jobs” instead of advocating for plaintiffs.

In the end, the judges upheld the lower court decision in favor of Theresa Graham against R.J. Reynolds Tobacco Co. and its affiliates. Judge William Pryor wrote the majority opinion.

“This appeal presents the questions whether due process forbids giving a Jury’s findings of negligence and strict liability in a class action against cigarette manufacturers preclusive effect in a later individual suit by a class member and, if not, whether federal law preempts the jury’s findings,” Pryor began. “Florida smokers and their survivors filed a class action against several tobacco companies, and after a yearlong trial designed to answer common questions concerning the companies’ tortious conduct against all members of the class, a jury found that each company had breached its duty of care and sold defective cigarettes.”

Pryor was referring to the jury’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).

He noted the Florida Supreme Court upheld the jury verdicts of negligence and strict liability and decertified the class to allow individual actions about the remaining issues of specific causation, damages and comparative fault. He rejected the tobacco company’s argument that the decision violates the due process clauses of the U.S. Constitution.

He also turned down R.J. Reynolds’ request to “overrule our decision to the contrary in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013).” And he shut down the tobacco maker’s attempt to seek protection under federal law.

“Because we reaffirm our holding in Walker and conclude that federal law does not preempt the Engle jury findings, we affirm the judgments against R.J. Reynolds and Philip Morris,” Pryor wrote.

“It’s a significant decision on the legal fronts that it covers,” said Samuel Issacharoff, the New York University law professor who spoke for the plaintiffs at oral arguments in June of last year.

He added, “It took a while to produce 280 pages of opinions.”

Especially for Judge Gerald Tjoflat. His dissent took up 238 of those pages. He accused the majority of creating a “false narrative” and being partial to the smokers.

“If one lesson can be learned from this chaotic poker game it is that we should stick to our day jobs,” Tjoflat wrote. “Rather than act as advocates for the plaintiff, we should saddle him with the burden the law tasks him with carrying, and assess, impartially, whether the plaintiffs have established the elements of proving preclusion in the manner the law demands. On the record before us now, the plaintiff clearly has not, and the District Court’s judgment should be reversed.”

Judges Julie Carnes and Charles Wilson agreed partially with Tjoflat but managed to hold their dissents to one page each. The docket lists 22 attorneys for the plaintiffs side and 70 on the tobacco company side—32 for R.J Reynolds and 38 for Philip Morris, although some are duplicates.

Topping the lists are: Elizabeth Joan Cabraser of Lieff Cabraser Heimann & Bernstein in San Francisco for the plaintiffs and Stephanie Ethel Parker of Jones Day in Atlanta for R.J. Reynolds. They could not be reached. The record also includes 17 amicus filings.

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