           Case: 13-15258   Date Filed: 09/05/2018   Page: 1 of 48


                                                                     [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15258
                       ________________________

                D.C. Docket No. 3:09-cv-13723-MMH-JBT


CHERYL SEARCY,

                                                            Plaintiff-Appellee,

                                  versus

R.J. REYNOLDS TOBACCO COMPANY, et al.,

                                                      Defendants-Appellants.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 5, 2018)

Before MARTIN, ANDERSON, and JULIE CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:
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         Cheryl Searcy (“Plaintiff”) sued the defendants, R.J. Reynolds Tobacco

Company and Philip Morris Inc. (together, “Defendants”) for unintentional and

intentional torts arising from the death of her mother, Carol Lasard, alleging that

Lasard’s illnesses were caused by her addiction to cigarettes manufactured by

Defendants. The jury found for Plaintiff on both the unintentional and intentional

tort claims and awarded substantial damages. Defendants assert on appeal that the

district court violated their due process and Seventh Amendment rights when it

directed the jury that it should deem Defendants’ alleged tortious conduct in the

present case to have been proven based on the findings of another jury in a prior

proceeding. Defendants also contend that the district court should have applied

Florida’s comparative fault statute to reduce the jury’s damages award based on

the fault the jury attributed to Lasard. After careful review, we affirm the district

court.

I.       PROCEDURAL AND FACTUAL BACKGROUND

         A.    The Engle Litigation

         This is an “Engle progeny” case—so named because it stems from the Engle

class action initiated in 1994 in Florida state court against the major tobacco

companies alleging negligence, strict liability, fraudulent concealment, and

conspiracy to conceal (among other claims), arising from these companies’

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manufacture and sale of cigarettes. Although much ink could be (and has been)

spilled describing the history of Engle litigation over the past two and a half

decades, we cover only the most pertinent facts here. 1

       Suffice it to say, the initial Engle class action culminated in jury findings

establishing certain elements of Defendants’ conduct (the “Engle jury findings”)

that the Florida Supreme Court determined would be given res judicata effect in

subsequent lawsuits brought by members of the Engle class. See Engle v. Liggett

Grp., Inc., 945 So. 2d 1246, 1276–77 (Fla. 2006). According to that court, the

Engle jury did not decide the defendants’ liability, but instead “decided issues

related to [the defendants’] conduct.” Id. at 1263. As a result, the Florida Supreme

Court held that Engle “progeny” plaintiffs may use the Engle jury findings to

establish the conduct elements for the “strict liability, negligence, breach of

express and implied warranty, fraudulent concealment, and conspiracy to

fraudulently conceal claims alleged by the Engle class.” Philip Morris USA, Inc. v.

Douglas, 110 So. 3d 419, 436 (Fla. 2013).

       Specifically, the Engle jury findings establish: (1) “that smoking cigarettes

causes” various diseases, including “lung cancer”; (2) “that nicotine in cigarettes is

addictive”; (3) “that the defendants placed cigarettes on the market that were

1
  For a more complete history, see Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1174–
81 (11th Cir. 2017) (en banc); see also id. at 1196–1212, 1221–1285 (Tjoflat, J., dissenting).
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defective and unreasonably dangerous”; (4) “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 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.” Engle, 945 So. 2d at 1276–77.

      Thereafter, in the progeny phase of Engle litigation, “individual plaintiffs

must establish (i) membership in the Engle class; (ii) individual causation, i.e., that

addiction to smoking the Engle defendants’ cigarettes containing nicotine was a

legal cause of the injuries alleged; and (iii) damages.” Douglas, 110 So. 3d at 430.

      B.     This Case

      Plaintiff’s mother, Carol Lasard, died of lung cancer and chronic obstructive

pulmonary disease, having been addicted to cigarettes since she was fifteen years

old. Proceeding as an Engle class member, Plaintiff sued both R.J. Reynolds and

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Phillip Morris—the companies that manufactured the cigarettes Plaintiff claims

caused her mother’s death. She asserted both non-intentional tort claims

(negligence and strict liability) and intentional tort claims (concealment and

conspiracy to conceal). At issue for purposes of Defendants’ present due process

challenge are the intentional tort claims, hereinafter referred to as the “concealment

claims.” As to the concealment claims before it, the Engle jury had found that the

defendant tobacco companies had “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” and further that these defendants had agreed to conceal

“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.” See Engle, 945 So. 2d at 1277 (emphasis added). Yet, to prevail on an

intentional tort claim, a plaintiff who is a member of the Engle class cannot rest

solely on the above Engle findings but must prove that the defendant’s tortious act

caused her injury: that is, for a concealment claim, the plaintiff must show that in

deciding or continuing to smoke, she relied on the particular misleading

information disseminated by the particular defendant and that such reliance caused

harm. See Philip Morris USA, Inc. v. Russo, 175 So. 3d 681, 686 (Fla. 2015)

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(“Engle-progeny plaintiffs must certainly prove detrimental reliance in order to

prevail on their fraudulent concealment claims.”); Hess v. Philip Morris USA, Inc.,

175 So. 3d 687, 698 (Fla. 2015) (same).

      Plaintiff indicates that there were two types of concealed information on

which her mother, Lasard, relied. First, Lasard began smoking as a young girl,

before cigarette warnings were required, and the concealment at issue for that time

period was the Engle defendants’ general failure to warn the public that smoking

could be addictive and dangerous to one’s health, as well as their marketing of

filtered cigarettes as being healthier. The evidence of this concealment “was based

on the general conduct findings in Engle . . .” But, at trial, Plaintiff also focused

on a type of concealment specific to Lasard that Defendants note was not common

to the entire Engle class nor necessarily decided by the Engle jury as an act on

which it based its class-wide concealment findings: the misleading marketing of

low-tar/low-nicotine cigarettes as being safer than other types of cigarettes on the

market.

      The trial court instructed the jury that it should rely on the Engle findings as

if the jury had found those facts itself. The court did not instruct the jury that to

the extent it based its verdict on the alleged concealment related to the low-tar/low-




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nicotine cigarettes, Plaintiff would bear the burden of proving that particular act of

concealment.

      At trial, the jury found that Defendants were liable on both the unintentional

tort claims of negligence and strict liability, as well as on the intentional tort claims

of fraudulent concealment and conspiracy to fraudulently conceal. The jury

awarded Plaintiff $6,000,000 in compensatory damages and $20,000,000 in total

punitive damages.

      In response to a question on the special verdict form asking whether Plaintiff

shared any fault for her injury, the jury allocated 40% of the fault to Lasard and

30% to each Defendant. In thereafter preparing the judgment, the district court

acknowledged that Plaintiff’s negligence claim was subject to apportionment based

on her degree of fault, but nevertheless it did not reduce her damages to reflect that

finding. The court explained that Defendants had also been found liable on

intentional tort claims (the fraudulent concealment and conspiracy to fraudulently

conceal), which unlike a negligence claim are not subject to apportionment under

Florida’s comparative fault statute, Florida Statute § 768.81. Because the jury had

returned a single damages award that was not divided between the two types of

claims—one of which was subject to apportionment based on a plaintiff’s fault and




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one of which was non-apportionable—the court concluded that it could not

properly reduce the award based on Lasard’s degree of fault.

      Although the district court did not adjust the damages award based on

Lasard’s comparative fault, it did conclude that both the compensatory and

punitive award were excessive. The court therefore remitted the award to

$1,000,000 in compensatory damages, owed jointly and severally by Defendants,

and $1,670,000 in punitive damages, owed independently by each.

      C.     Defendants’ Enumeration of Errors

      On appeal, Defendants allege three errors. The first two involve alleged

constitutional violations arising from the district court’s use of the Engle findings.

First, Defendants contend that the district court erroneously permitted Plaintiff to

rely on the Engle findings to establish the conduct elements of her intentional tort

claims for concealment and conspiracy to conceal. Defendants argue that, by

allowing the jury to rely on these findings, the district court violated Defendants’

federal due process rights. Second, Defendants argue that to determine whether

punitive damages were warranted, the district court required the jury to speculate

as to the basis for the Engle findings. Defendants say this exercise violated the

Seventh Amendment’s Reexamination Clause. Finally, Defendants contend that

the district court erred by refusing to apply Florida’s comparative fault statute to

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reduce Plaintiff’s damages commensurate with her own fault, as determined by the

jury. Alternatively, Defendants argue that Plaintiff waived her right to contest a

reduction.

II.   DUE PROCESS CHALLENGE

      A.     The Trial Proceedings

      Addressing Defendants’ due process argument, we review questions of

constitutional law de novo. Nichols v. Hopper, 173 F.3d 820, 822 (11th Cir. 1999).

The district court here instructed the jury that, before it could apply the Engle jury

findings, it must first determine whether Plaintiff was a member of the Engle class.

To be a member of that class, the court explained, Plaintiff had to prove that her

mother was addicted to cigarettes containing nicotine and that this addiction was a

legal cause of her death. The court further directed that, if the jury found that

Plaintiff had proved membership in the Engle class, it must then apply the

pertinent findings made in Engle, just as if the jury had determined those facts

themselves. Once again, those findings were that: (1) nicotine is addictive and

smoking cigarettes causes lung cancer; (2) the Engle defendants (including

Defendants) were negligent; (3) the Engle defendants placed cigarettes on the

market that were defective and unreasonably dangerous; (4) the Engle defendants

concealed material information that was not otherwise known, knowing that the

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material was false or misleading, or they failed to disclose a material fact

concerning the health effects or addictive nature of smoking cigarettes, or both;

and (5) the Engle defendants agreed to conceal the health effects of cigarettes or

their addictive nature, with the intention that smokers would rely on this

information to their detriment.

      In other words, all that was left for the jury to decide was whether

Defendants’ conduct was a legal cause of Lasard’s injuries for the negligence,

strict liability, and concealment claims—if so, the Engle jury findings took care of

the rest and established that Defendants had acted tortiously. And to repeat, the

question of whether Defendants had concealed material information concerning the

health effects or addictive nature of smoking cigarettes was not to be reconsidered

by the jury, as that determination had already been made in the earlier Engle

proceeding. Instead, as instructed by the court, the only question before the jury on

the concealment claims was whether Plaintiff’s mother had relied to her detriment

on information that the jury was directed to find was both material and had been

concealed by Defendants, concerning the health effects or addictive nature of

smoking cigarettes. Finally, if the jury found this reliance, it must lastly decide

whether this reliance was a legal cause of Lasard’s lung cancer and death. The

jury found that Lasard had so relied and, given that answer, it found Defendants

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liable on the concealment claims, as well as the negligence and strict liability

claims.

      B.     Defendants’ Due Process Challenge to the Preclusive Effect of
             Engle on Plaintiff’s Concealment Claims

             1.     Defendants’ Arguments

      Defendants contend that their due process rights were violated by giving

preclusive effect to the Engle jury findings relating to Plaintiff’s negligence, strict

liability, and concealment claims. Defendants acknowledge, however, that our

precedent forecloses a due process challenge to the application of the Engle jury

findings on negligence and strict liability claims. Specifically, in Graham v. R.J.

Reynolds Tobacco Company, 857 F.3d 1169, 1183–86 (11th Cir. 2017) (en banc),

our Court held that treating the Engle jury findings on negligence and strict

liability as res judicata did not violate due process, affirming our earlier decision in

Walker v. R.J. Reynolds Tobacco Company, 734 F.3d 1278, 12877–90 (11th Cir.

2013). Accordingly, based on this precedent, we likewise hold that the district

court’s instruction that the jury must apply the Engle findings in deciding

Plaintiff’s negligence and strict liability claims did not violate Defendants’ due

process rights.

      Yet, neither Walker nor Graham faced the question whether the Engle jury

findings on intentional concealment claims would survive a due process challenge,
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and, until recently, that has remained an open issue.2 In both its pre-Graham and

post-Graham briefing, Defendants have argued that an intentional concealment

claim—depending as it must on a specific statement or omission by a specific

defendant—presents due process issues that did not necessarily arise with a class-

wide negligence or strict liability claim. Relying largely on the Supreme Court’s

opinion in Fayerweather v. Ritch, 195 U.S. 276 (1904), Defendants have

consistently argued that, to satisfy due process, a court may only give issue-

preclusive effect to an earlier jury’s findings if that jury “actually decided” the

matter that is at issue in the second proceeding. Indeed, in Graham, we assumed

without deciding that Defendants are right; that is, that due process requires that

the factual matter was actually decided by the jury on whose finding preclusion is

sought. See Graham, 857 F.3d at 1181 (“We will assume, without deciding, that

the ‘actually decided’ requirement is a fundamental requirement of due process

under Fayerweather . . .”). Acting on that assumption, we ourselves reviewed the

Engle proceedings and announced that we were “satisfied that the Engle jury

actually decided common elements of the negligence and strict liability of [the

Graham defendants].” Id.


2
  Concealment claims were likewise not before the Florida Supreme Court in the seminal
Florida case that accorded preclusive effect to the Engle findings: Philip Morris USA,
Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013).
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      Relying on Graham, Defendants argue in their first supplemental brief that

we should likewise review the Engle record to determine whether the concealment

found by the Engle jury to have occurred class-wide among all the defendants was

necessarily the same concealment or misrepresentation on which Lasard relied in

deciding to continue to smoke. Defendants insist that having undertaken this

review, we will find it impossible to conclude, based on the unspecified

concealment found class-wide by the Engle jury, that the latter necessarily decided

that the particular concealment asserted here by Plaintiff occurred.

      Specifically, Defendants say, the Engle jury rendered what Plaintiffs have

called “the general conduct findings,” which stated, in pertinent part, that the Engle

defendants had “failed to disclose a material fact concerning the health effects or

addictive nature of smoking cigarettes, or both.” Engle, 945 So. 2d at 1277

(emphasis added). In short, these finding indicate the Engle jury’s conclusion that

the tobacco companies had either not told the public that smoking would damage a

person’s health or had not made public their awareness that cigarette-smoking is an

addictive activity, or maybe both. Yet, given the numerous theories of

concealment advanced at the Engle trial, Defendants argue that it is impossible to

figure out on which act or acts of concealment the Engle jury was focusing when it

made the above findings. And given the fact that our holding in Graham was

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conditioned on our conclusion that the Florida Supreme Court in Engle and

Douglas had determined that the Engle jury had actually decided only those issues

that were common to the class as a whole, Graham, 857 F.3d at 1183 (“The only

way to make sense of these [Engle] proceedings is that the Florida courts

determined that the Engle jury actually decided issues common to the class . . .”),

Defendants argue that to be able to apply the Engle general concealment finding to

a particular concealment theory presented in a progeny case, one has to be able to

identify the common act(s) of concealment that the Engle jury had in mind in

reaching its finding.

      That is simply not doable, Defendants argue, given the multiplicity of

concealment allegations and the inability to figure out which theories the Engle

jury might have discarded versus which theories they found to have been proved

by the Engle plaintiffs by a preponderance of the evidence. Finally, with regard to

the “general conduct finding,” Defendants complain that because it is framed in the

disjunctive, the Engle jury findings do not establish whether the Engle jury actually

decided that Defendants concealed material information about the health effects of

cigarettes or whether instead the jury decided that it was the concealment of the

addictive nature of cigarettes that the jury found tortious.




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      Defendants note that all of the above problems are magnified in this case

because, in attempting to prove her own concealment claim, Plaintiff focused

greatly on a very specific theory of concealment: that Defendants had, through

misleading advertisements, misled the public into believing that low-tar or low-

nicotine cigarettes were healthier than normal cigarettes, when in fact those “low”

cigarettes were just as bad for the smoker as were standard cigarettes.

      According to Defendants, the problem with Plaintiff’s particular

concealment theory is there is no way to determine whether the Engle jury actually

bought that argument because its findings give no clue as to what acts of

concealment it had actually found. Defendants emphasize that the Engle jury was

presented with thousands of different alleged misstatements as to the effects of

cigarettes that the jury could have used as the basis for its general finding that

something had been concealed. So, ultimately, Defendants say, it is anyone’s

guess as to what information the Engle jury actually decided had been concealed

by Defendants. Taken altogether, Defendants argue that it simply cannot be

determined whether the Engle jury actually decided that Defendants fraudulently

concealed material information about low-tar cigarettes which is the concealment

on which Lasard specifically relied.




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      And to underscore the unlikelihood that the Engle jury found that

Defendants concealed information about low-tar/low-nicotine cigarettes in

particular, Defendants point out that the Florida Supreme Court had premised its

decision to give preclusive effect to the Engle findings on the court’s conclusion

that the jury had decided only those issues that were “common to the entire class.”

Douglas, 110 So. 3d at 422. Because not all of the members of the Engle class

smoked low-tar/nicotine cigarettes, Defendants argue that it is impossible to

conclude that the Engle jury necessarily based a class-wide finding of concealment

on a theory applicable to only some plaintiffs. And, according to Defendants, that

is a fairly significant problem for a plaintiff like Searcy, who based a large part of

her case on the concealment claims on Defendant’s alleged deceptive marketing of

low-tar/nicotine cigarettes.

             2.     Supplemental Briefing

      After we reiterated in Graham that giving preclusive effect to the Engle jury

findings on negligence and strict liability did not violate due process, the parties

simultaneously filed supplemental briefs to address Graham’s impact on the

preclusive effect of the Engle jury’s concealment findings. Plaintiff maintained

that Graham reaffirmed our holding in Walker that we need not look through the

Engle record to determine what the Engle jury actually decided, 857 F.3d at 1174,

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while Defendants argued that Graham stood for precisely the opposite proposition

because we expressly noted in Graham that we had reviewed the Engle trial record

ourselves, which permitted us to conclude “that the Engle jury actually decided

common elements of the negligence and strict liability,” id. at 1181. As set out

above, Defendants insisted that, unlike the Engle jury findings on negligence and

strict liability, there was no theory of common liability regarding the concealment

claims—which they say could have been based on potentially thousands of

different individual statements by the Engle defendants or one of many different

facets of cigarette advertising.

      Because Plaintiff and Defendants had filed their supplemental briefing on

Graham simultaneously, Plaintiff’s brief had not addressed Defendants’ argument

that it was impossible to figure out which specific act or acts of concealment the

Engle jury had actually decided was common to all defendants. Nor did Plaintiff

address Defendants’ observation that Graham “assume[d], without deciding, that

the ‘actually decided’ requirement is a fundamental requirement of due process”

and, acting on that assumption, conducted an independent review of the Engle

proceedings to determine that “the Engle jury actually decided common elements

of the negligence and strict liability” claims as to all defendants. Id.




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       Given the review of the Engle trial record undertaken in Graham, we

directed the parties to provide additional briefing that would help us undertake a

similar review to determine whether the Engle jury had actually decided that the

Engle defendants had deceptively marketed low-tar cigarettes, which appears to be

the concealment theory on which Plaintiff largely relied. Accordingly, we directed

Plaintiff and Defendants to file further briefing to answer a set of questions issued

by the Court about what the Engle jury actually decided as that would relate to the

theory of concealment that Plaintiff pursued in the present case.3

       Notwithstanding that directive, Plaintiff, in her second supplemental brief,

was unable to provide any support for an argument that the Engle jury’s finding of

liability against the Defendants on the concealment claims was based on

concealment related to the deceptive marketing of low-tar cigarettes, as opposed to


3
  In her concurring opinion, Judge Martin indicates her disagreement with our decision to ask
for supplemental briefing on the above question, indicating that this briefing was unnecessary
because Graham’s holding “rest[ed] on giving full faith and credit to the judgment of the Florida
Supreme Court.” Concurring Op. at 1, 3. But that mischaracterizes Graham and misses the
point. First, if Graham was merely following Engle and Douglas, then there was no reason for
the Court to review the Engle trial record. Second, as Graham correctly observed, a state
proceeding is only entitled to full faith and credit if it complies with due process. 857 F.3d at
1185 (“‘[S]tate proceedings need do no more than satisfy the minimum procedural requirements’
of due process to receive full faith and credit. The record in this appeal establishes that R.J.
Reynolds and Philip Morris were afforded the protections mandated by the Due Process Clause.”
(alteration in original) (citation omitted) (quoting Kremer v. Chemical Constr. Corp., 456 U.S.
461, 481 (1982))); see also Kremer, 456 U.S. at 482 (“The State must, however, satisfy the
applicable requirements of the Due Process Clause. A State may not grant preclusive effect in its
own courts to a constitutionally infirm judgment, and other state and federal courts are not
required to accord full faith and credit to such a judgment.” (emphasis added)).
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one of the many other theories of concealment posed by the Engle plaintiffs.4

Instead, in this second supplemental brief, Plaintiff simply repeated her legal

argument, which is essentially that: even if this Court could not conclude that the

Engle jury had actually decided a concealment theory that was common to all

defendants and that could therefore be applied in all subsequent trials, such a

conclusion did not matter. According to Plaintiff, because the Florida Supreme

Court had determined that the findings of the Engle jury concerning the

concealment claims should be given preclusive effect in future trials, the Full Faith

and Credit Clause precludes this Court from questioning that decision, Defendants’

due process challenge notwithstanding. In short, Plaintiff does not argue, or offer

any evidence to support an argument, that the Engle jury necessarily based its

finding of concealment against the tobacco company defendants on the defendants’

conduct regarding the marketing of low-tar cigarettes. This being Plaintiff’s




4
  Plaintiff’s only citation or discussion of the Engle trial record was her single-sentence
incorporation by reference of a filing made in another case. Arguably, this is insufficient on its
face. See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1283 (11th Cir.
2009) (holding that an issue that a party “fail[s] to develop” an argument for and does not “offer
any citation to the record in support of it” is “waived”); Four Seasons Hotels & Resorts, B.V. v.
Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (“reject[ing] the practice of
incorporating by reference” arguments made in filings outside a party’s appellate briefs). At any
rate, the referenced filing cites to only four instances where the Engle jury—in the course of a
year-long trial—was presented with evidence about the Engle defendants’ concealment of
information related to low-tar cigarettes.
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position, we therefore have to assume that the Engle jury did not actually decide

that question.

      So, the threshold question before us became how we would decide that

which Graham had only assumed: whether due process requires that a factual

issue must have been “actually decided” in an earlier proceeding for that issue to

be given preclusive effect in a later proceeding. We were saved from having to

answer that question, however, because while awaiting the filing of Defendants’

second supplemental brief, another panel of this Court decided the overarching

question before us. That panel held that due process is not violated by applying

preclusive effect to the Engle jury’s concealment findings in a subsequent trial.

See Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1091–93 (11th Cir.

2018).

      As in this case, the defendants in Burkhart had argued that, while Graham

decided the due process question as to Engle negligence and strict liability claims,

Graham did not address the due process considerations applicable to concealment

claims. The Burkhart court agreed, acknowledging that Graham had not decided

whether its holding would also protect against a due process challenge to the

giving of preclusive effect to the Engle concealment findings. In deciding that

issue, Burkhart read Graham as holding that for purposes of giving res judicata

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effect to Engle findings, due process is satisfied so long as the defendants had

notice and an opportunity to be heard on the claims at issue. 884 F.3d at 1092.

And Graham concluded that the tobacco defendants had been put on notice of the

class’s “common evidence and theories of negligence and strict liability,” and

“were given an opportunity to be heard on the common theories in a year-long

trial . . .” Id. (quoting Graham, 857 F.3d at 1185). Ultimately, Burkhart

concluded that the above rationale “applies equally . . . to Engle progeny plaintiffs’

concealment and conspiracy claims.” Id. at 1092–93. That is, the Engle

defendants had notice and an opportunity to be heard regarding those claims as

well. In short, Burkhart held that the “shared rationale in Graham and Walker . . . .

make clear that treating as preclusive the Engle jury’s findings as to the conduct

elements of Engle progeny plaintiffs’ fraudulent concealment and conspiracy

claims does not violate due process.” Id. at 1091.

      Admittedly, Burkhart did not examine the question that has been before us

in this case through supplemental briefing. Specifically, for purposes of granting

preclusion consistent with the due process clause, is it enough that a defendant had

a right to be heard on a plaintiff’s claims in a first action, if ultimately one is

unable to discern what the jury actually decided in making its findings on those

claims? Again, as applicable to this case, the Engle jury rendered a very general

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finding that the tobacco defendants had concealed material information. Yet

multiple acts of concealment had been presented to the Engle jury, and their

general finding did not indicate which acts of concealment may have underlain

their finding versus which allegations of concealment they might have rejected.

Fast forward to a later progeny case relying largely on a very specific type of

concealment—the concealment of the harmful effect of low-tar/low-nicotine

cigarettes—and it becomes difficult to determine whether the Engle jury’s basis for

its general finding of concealment was the particular concealments regarding low-

tar/low-nicotine cigarettes. But, in this later trial, the jury is essentially told that

the Engle jury found this act of concealment to have occurred and that the progeny

jury should consider it to have been proved. A concern that due process may

require that an issue/claim/fact must have actually been decided by an original jury

to be given preclusive effect was important enough to the Graham majority to

prompt it to parse the Engle record to insure that the negligence/strict liability

claims before it represented common claims that the jury had necessarily decided.

       Even though the same argument was raised before the Burkhart panel, the

latter did not address this intriguing question, and we conclude that the panel’s

rejection of a due process challenge to the application in progeny cases of the

Engle jury findings regarding concealment claims was categorical. Indeed,

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although they disagree with Burkhart’s conclusion, Defendants now concede that

this Court has conclusively resolved this issue. Because we are bound to follow

precedent, the Burkhart decision therefore ends any debate in this court as to

whether the Engle jury findings related to the concealment claims are to be given

preclusive effect. The answer is: they will. And that being so, we are required to

reject Defendants’ same due process argument here.

III.   SEVENTH AMENDMENT CHALLENGE

       A.    Reexamination Clause of the Seventh Amendment

       Defendants argue that the jury’s award of punitive damages must be vacated

because the jury’s consideration of this issue was impermissible under the Seventh

Amendment of the United States Constitution. This argument raises a

constitutional question that is reviewed de novo. Nichols, 173 F.3d at 822. The

Reexamination Clause of the Seventh Amendment states that “no fact tried by a

jury, shall be otherwise reexamined in any Court of the United States, than

according to the rules of the common law.” U.S. Const. amend. VII.

       Defendants argue that allowing the jury to award punitive damages based on

the Engle findings required the jury to speculate as to what the specific conduct

was that formed the basis of the Engle jury findings. Such an endeavor,

Defendants argue, violates the Reexamination Clause. Defendants contrast the

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compensatory damages award, which was based on the actual, individual harm

suffered by Plaintiff as determined by the jury at her trial, with the punitive

damages award, which they say required the jury to reassess the Engle jury

findings in order to decide whether to award any punitive damages, and, if so, how

much.

        Plaintiff counters that the Seventh Amendment is not implicated by punitive

damages awards because “the jury’s award of punitive damages does not constitute

a finding of ‘fact.’” Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S.

424, 437 (2001). Plaintiff points to cases that establish that a court may review a

punitive damages award without implicating the Seventh Amendment. See, e.g.,

Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991) (“Under the traditional

common-law approach, the amount of the punitive award is initially determined by

a jury instructed to consider the gravity of the wrong and the need to deter similar

wrongful conduct. The jury’s determination is then reviewed by trial and appellate

courts to ensure that it is reasonable.”).

        Alternatively, Plaintiff argues that, even if the Seventh Amendment is

applicable to punitive damages determinations, the jury did not reexamine the

Engle jury findings. Plaintiff contends that she put on sufficient evidence at trial of

Defendants’ intentionally tortious conduct for the jury to decide that punitive

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damages were appropriate and to calculate the award amount. Thus, the jury’s

punitive damages award did not require the jury to speculate as to the basis for the

Engle findings.

      The Reexamination Clause has been held to prevent second-guessing by

successive juries in the contexts of partial retrials and multiple-stage trials like the

Engle progeny suit here. In Gasoline Products Company, Inc. v. Champlin

Refining Company, 283 U.S. 494 (1931), the Supreme Court set the standard for

what constitutes unconstitutional reexamination in violation of the Seventh

Amendment. There, the Court stated that the Reexamination Clause requires that

partial retrials “may not properly be 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.” Id. at 500. In that case, the Court addressed an

error in the trial court’s jury instructions on damages in a breach of contract case.

Id. at 495–97. The defendant had argued that a partial retrial on damages, without

also retrying the issue of liability, would violate the Reexamination Clause. Id. at

497. The Supreme Court agreed that, under the circumstances, damages and

liability were inseparable because the alleged contract was oral and it was

uncertain what the first jury found to be the terms of the contract. Id. at 498–500.

Thus, because the trial court could not instruct the second jury on the terms of the

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contract (and how they were breached), the jury would be unable to determine the

appropriate compensation without reexamining the first jury’s liability

determination. Id. at 499–500.

       This Court has likewise observed that compensatory damages and liability

can be so intertwined that retrial on the former without the latter is impossible

where there has been a compromised verdict: “one where it is obvious that the jury

compromised the issue of liability by awarding inadequate damages.” Burger King

Corp. v. Mason, 710 F.2d 1480, 1486–87 (11th Cir. 1983) (internal quotation

marks omitted). Defendants also direct the Court to an unpublished case, SEB S.A.

v. Sunbeam Corporation, 148 F. App’x 774, 796 (11th Cir. 2005), 5 in which the

plaintiff argued that the damages award it received at trial was compromised by the

district court’s exclusion of evidence relevant to damages. Plaintiff therefore

requested a new trial only on the issue of additional damages. We denied the

request, reasoning:

       Although any additional award would be based on the same,
       underlying conduct as the existing award of $6.6 million, we have no
       way of knowing from the jury’s verdict how and in what ways the
       jury found [the defendant] liable. We can speculate as to the jury’s
       conclusions based on the damages evidence presented by [the
       plaintiff], but we cannot know for sure.

5
  Unpublished cases do not constitute binding authority and may be relied on only to the extent
they are persuasive. United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (citing 11th
Cir. R. 36-2). Because there are so few cases that address the Reexamination Clause, we cite this
case only as an example of how the issue has been analyzed.
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Id. at 797 (footnote omitted). We further pointed to the fact that “[t]he jury gave

no indication of its method of calculating damages, how its damages calculation

related to [the defendant’s] liability, or any specific finding as to the moment or

moments in the [contract’s] term on which [the defendant] breached the

[contract].” Id. Consistent with Gasoline Products, SEB followed the rule that

instructing a second jury to decide an issue that requires it to speculate about the

basis of the first jury’s verdict is a prohibited reexamination.6

        The above caselaw notwithstanding, we have held that liability and

compensatory damages are often severable. See Mfg. Research Corp. v. Greenlee

Tool Co., 693 F.2d 1037, 1041–42 (11th Cir. 1982) (observing that “[t]rial of

damages alone after liability is an established practice”). For example, when a jury

clearly found a defendant liable, but reached unreliable figures for damages

because of unclear jury instructions, we granted retrial solely on the issue of


6
  This is the same point made by one of the unpublished cases from another circuit relied on by
Defendants. See Hardman v. AutoZone, Inc., 214 F. App’x 758, 765–66 (10th Cir. 2007)
(affirming a trial court’s order for a full retrial, rather than a retrial only on punitive damages,
“because alternative theories of liability were submitted to the first jury and a second jury tasked
only with having to determine a new punitive damage award would unfairly be required to
speculate as to what . . . conduct formed the basis of the first jury’s verdict of liability” (internal
quotation marks omitted)). The other unpublished case relied on by Defendants makes the same
point as Burger King: that a second jury cannot be allowed to revisit an earlier jury’s findings
where the issues are inseparably intertwined. See E.E.O.C. v. Stocks, Inc., 228 F. App’x 429,
432 (5th Cir. 2007) (“In the discrimination context, a jury’s verdict on punitive damages is
‘intertwined with its view of the facts determining liability and its award for emotional injury.’”
(quoting Hardin v. Caterpillar, Inc., 227 F.3d 268, 272 (5th Cir. 2000))).
                                                     27
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damages. See Overseas Private Inv. Corp. v. Metro. Dade Cty., 47 F.3d 1111,

1116 (11th Cir. 1995) (“Because the liability issues were properly and clearly

decided by the jury, the remedy in this instance is to remand the case to the district

court for a new trial on the amount of damages only.”). Similarly, in

Manufacturing Research Corporation v. Greenlee Tool Company, 693 F.2d 1037

(11th Cir. 1982), a tortious interference with business relations suit, the defendant

objected to the district court’s retrial on damages alone, arguing “that no finding

was made as to which statements were found by the first jury to be tortious [ ]

[and] [o]n retrial the jury was able to assume each incident was tortious and left

only to determine causation and damages.” Id. at 1041. We rejected this

argument, noting that “[t]he [first] jury specifically found liability. The repetition

of some of the liability evidence, necessary to establish causation, did not render

the [second] trial unfair.” Id. at 1041–42.

      And just as with the separation of liability and damages, a finding that the

defendant has been negligent can be severed from a later proceeding that

determines the comparative fault between the defendant and the plaintiff. In

ordering the decertification of the Engle class, the Florida Supreme Court

anticipated and rejected a potential Seventh Amendment challenge. The court

relied on the Fifth Circuit’s decision in Mullen v. Treasure Chest Casino, LLC, 186

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F.3d 620 (5th Cir. 1999), to conclude that the separation of the Engle defendants’

negligence (which had already been decided) from the plaintiffs’ comparative

negligence (to be decided in the progeny trials) would not implicate the Seventh

Amendment, because the question of causation would be left to the progeny juries.

Engle, 945 So. 2d at 1270 (“[Mullen] 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.”). The Florida Supreme

Court did not, however, address any Seventh Amendment implications of its

decision to have punitive damages questions reserved for the progeny trials.

      B.     Reexamination of the Engle Jury Findings

      Applying this framework to the facts at hand, we will assume that the

Seventh Amendment applies to a jury’s determination to award punitive damages.

We also will assume that, depending on the circumstances, the Seventh

Amendment could be violated when a second jury is called on to decide punitive

damages arising out of a verdict of liability rendered by a previous jury. In this

case, however, we find no violation of the Seventh Amendment.




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      First, we note that the jury here was neither asked nor required to speculate

about the Engle jury findings in reaching a decision on punitive damages. On the

first day of the trial, the jurors were instructed that “the [Engle] findings

established only what they expressly state and you must not speculate about the

basis for any of the findings.” As to the standard to be applied by the jury in its

deliberations, the district court instructed that punitive damages were warranted

only if the jury found by clear and convincing evidence that “the fraudulent

conduct by defendant causing Carol Lasard’s lung cancer death” showed:

      [1] reckless disregard of human life or the safety of the persons
      exposed to the effect of such conduct . . . [2] an entire lack of care that
      the defendant must have been conscientiously indifferent to the
      consequences . . . [3] an entire lack of care that the defendants must
      have wantonly or recklessly disregarded the safety and welfare of the
      public . . . [o]r . . . [4] such reckless indifference to the rights of others
      as to be equivalent to an intentional violation of those rights.

Ultimately, the district court instructed the jury that it would have to

consider whether punitive damages were appropriate, “as punishment to that

defendant and as a deterrent to others.”

      In essence, the jury was instructed to focus on Defendant’s conduct toward

Lasard because it was told that it could award punitive damages only if it found

that “the conduct of that Defendant was a substantial cause of Carol La[s]ard’s

lung cancer and death and that such conduct warrants punitive damages.”


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(Emphasis added). In other words, the jury was instructed that any punitive

damages award had to be based on the conduct of Defendants that caused Lasard’s

death. The jury was not asked to speculate about what the earlier Engle jury had

found, but merely to examine the evidence that had been presented before it at trial

to determine whether punishment of Defendants via additional damages was

warranted.

      Indeed, as a practical matter, absent some proof of the specific conduct of

Defendants that warranted punitive damages, the jury arguably would have had no

basis or context in which to evaluate Defendant’s behavior. That is, if the only

evidence Plaintiff had offered up was evidence of Lasard’s own smoking history,

combined with the general Engle verdict finding of some unspecified concealment

by Defendants, Defendants might well argue that the jury was necessarily required

to reexamine this Engle finding, because without this finding there would have

been no other evidence available to gauge the egregiousness of Defendant’s

conduct for purposes of determining punitive damages.

      In this case, however, Plaintiff presented evidence supporting a finding that

Defendants’ conduct warranted punitive damages: specifically, evidence that

Defendants had marketed low-tar/low-nicotine cigarettes as healthier and safer

than other cigarettes, knowing that this representation was false; that Plaintiff had

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relied on this representation, which reliance had contributed to her addiction; and

that this addiction led to the lung cancer that killed her. Thus, whatever thinking

went into the Engle jury’s conclusion that Defendants had concealed material

information—and whether or not the Engle jury based its finding of liability on the

particular theory urged by Plaintiff—Plaintiff’s jury did not have to revisit that first

jury’s rationale on liability to reach a decision that Defendants’ conduct in the case

before it warranted punitive damages.

      In summary, because we conclude that the jury was not required to speculate

about the Engle jury findings when it awarded punitive damages, we also conclude

that Defendants’ Seventh Amendment rights were not violated.

IV.   COMPARATIVE FAULT

      Finally, we address Defendants’ objections to the district court’s application

of the Florida comparative fault statute. Defendants argue that the district court

erred when it refused to apply the jury’s comparative fault findings to reduce

Plaintiff’s damages award in proportion with Lasard’s negligence. First,

Defendants argue that the Florida comparative fault statute, Florida Statute

§ 768.81, required the apportionment of damages because Plaintiff’s lawsuit was,

in effect, a negligence action. Second, Defendants argue that even if the statute

does not mandate apportionment, apportionment is nonetheless required because

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Plaintiff waived her right to application of the statute’s intentional torts exception

through her trial conduct.

      A.       The Comparative Fault Statute

      “Florida Statute § 768.81 provides for a reduction of damages in a

negligence action for a plaintiff who has herself acted negligently, in proportion to

the plaintiff’s degree of fault.” Smith v. R.J. Reynolds Tobacco Co., 880 F.3d

1272, 1279 (11th Cir. 2018). Specifically, the statute states that “[i]n a negligence

action, contributory fault chargeable to the claimant diminishes proportionately the

amount awarded as economic and noneconomic damages for an injury attributable

to the claimant’s contributory fault.” Fla. Stat. § 768.81(2). The statute, however,

“does not apply . . . to any action based upon an intentional tort.” Fla. Stat.

§ 768.81(4).

      Although when they filed their appeal, Defendants may have had a colorable

argument that § 768.81 required apportionment in cases like this where a jury

awards a single amount of damages based on both negligence claims and

intentional torts, the Florida Supreme Court has since held otherwise. As our

Court recently noted, “the Florida Supreme Court . . . resolved the issue decisively

. . . . [and] held that when an Engle progeny case contains both negligence and

intentional tort claims and when the jury has found for the plaintiff on an

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intentional tort claim, then the compensatory damages award cannot be reduced

based on the plaintiff’s percentage of fault.” Smith, 880 F.3d at 1280 (discussing

Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017)); see also

Burkhart, 884 F.3d at 1086–87 (same). So, taken by itself, § 768.81 does not

permit apportionment here.

       B.      Waiver

       Accordingly, Defendants’ only potentially viable argument is that Plaintiff

waived any right to unapportioned damages she might have under § 768.81.7 See

Smith, 880 F.3d at 1280 (acknowledging that the Florida Supreme Court has left

open the possibility that § 768.81’s intentional tort exception can be waived).

Specifically, Defendants argue that at trial Plaintiff took the position that

comparative fault would apply, only to abandon that position at the conclusion of

the trial.

       The parties disagree over whether federal or Florida law governs the waiver

analysis here. At the very least, they agree that federal law generally governs

7
  Defendants also suggest that the doctrine of judicial estoppel might apply. In diversity cases,
“the application of the doctrine of judicial estoppel is governed by state law.” Original
Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 44 F.3d 925, 930 (11th Cir. 1995).
Under Florida law, judicial estoppel applies only when a party maintains inconsistent positions in
separate proceedings. See Fintak v. Fintak, 120 So. 3d 177, 186–87 (Fla. 2d DCA 2013) (“[T]he
party against whom estoppel is sought must have asserted a clearly inconsistent or conflicting
position in a prior judicial proceeding.” (citing Blumberg v. USAA Cas. Ins. Co., 790 So. 2d
1061, 1066 (Fla. 2001))). So judicial estoppel does not apply to inconsistent positions taken in
the course of a single trial. For that reason, judicial estoppel cannot apply here.
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waiver in diversity cases. Morgan Guar. Tr. Co. of N.Y. v. Blum, 649 F.2d 342,

344 (5th Cir. Unit B July 1981) (“In diversity of citizenship actions, state law

defines the nature of defenses, but the Federal Rules of Civil Procedure provide the

manner and the time in which defenses are raised and when waiver occurs.”); see

also Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350 (11th Cir. 2007) (same).

Plaintiff argues that this general rule holds true here, but Defendants believe an

exception to the general rule applies. Both parties cite in support of their position

the Seventh Circuit’s opinion in Herremans v. Carrera Designs, Inc., 157 F.3d

1118 (7th Cir. 1998). Herremans recognized that, “in general . . . it is those

[federal] principles, not state-law principles, which, like other procedural rules,

govern federal litigation even when the basis of federal jurisdiction is diversity of

citizenship.” Id. at 1123 (citations omitted). However, the court continued:

      There is an exception for cases in which the application of the federal
      rule would interfere with substantial state interests, and the exception
      is more likely to be applicable when the state waiver rule is limited to
      some particular body of substantive law and is therefore more likely
      to reflect state substantive policies than is a procedural rule of general
      applicability.
Id. (citations omitted).

      Ultimately, we need not decide which law governs because, under either,

Plaintiff did not waive the intentional tort exception. Under both federal and

Florida law, we review the district court’s waiver determination for abuse of

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discretion. Proctor, 494 F.3d at 1350; Schoeff v. R.J. Reynolds Tobacco Co., 232

So. 3d 294, 305 (Fla. 2017). The general framework for waiver under federal and

Florida law are also substantially similar. Under federal law, “[w]aiver is the

voluntary, intentional relinquishment of a known right.” Glass v. United of Omaha

Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994). Florida law is, for our purposes

here, the same. See Major League Baseball v. Morsani, 790 So. 2d 1071, 1077

n.12 (Fla. 2001) (“Waiver is the voluntary and intentional relinquishment of a

known right, or conduct which implies the voluntary and intentional

relinquishment of a known right.”).

      Defendants first point to Plaintiff’s complaint, which does not explicitly

state that the intentional torts exception to the comparative fault statute should

apply. The Second Amended Complaint states that Plaintiff “seeks compensatory

and punitive damages in accordance with the Florida Wrongful Death Act, the

Florida Survival Statute and with the Florida Supreme Court’s class action decision

and mandate in Engle.” The complaint references comparative fault only in very

general terms. It says that, because Engle resolved many issues of liability and

general causation, Plaintiff “brings this action upon the limited remaining issues in

dispute, to-wit: specific causation, apportionment of damages, comparative fault,




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compensatory damages, entitlement to punitive damages, and punitive damages.”

The complaint further states:

      The Decedent’s actions in using Defendant’s [sic] cigarettes as
      marketed and intended by Defendants, and related to the frequency,
      duration and manner of Decedent’s efforts to cease smoking, should
      be considered by the jury along with Defendants’ acts and omissions
      for purposes of determining whether the Decedent’s acts or omissions
      rise to the level of negligence and constitute comparative fault.

There are no further mentions in the complaint of comparative fault or how it

should apply.

      We do not interpret the complaint’s mention of comparative fault as a

voluntary and intentional relinquishment of the right to unapportioned damages

should Plaintiff prevail on the intentional torts, because the legal implications of

prevailing on those claims are not discussed. Defendants, moreover, point to no

obligation on Plaintiff’s part to affirmatively state that comparative fault would not

apply if she should prevail on the intentional torts. Neither the federal nor Florida

rules of civil procedure require such statements in the pleadings. See Fed. R. Civ.

P. 8(a) (requiring “(1) a short and plain statement of the grounds for the court’s

jurisdiction . . . (2) a short and plain statement of the claim . . . and (3) a demand

for the relief sought”); Fla. R. Civ. P. Rule 1.110 (requiring “(1) a short and plain

statement of the grounds upon which the court’s jurisdiction depends . . . (2) a



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short and plain statement of the ultimate facts showing that the pleader is entitled

to relief, and (3) a demand for . . . relief”).

       Defendants also cite portions of the trial transcript where Plaintiff admits

that Lasard shared some fault for her death. For instance, in her opening statement,

Plaintiff “admit[ted] Carol Lasard’s actions should be judged, just like the cigarette

companies’ actions should be judged.” But she followed by saying that Lasard “is

not at all responsible for the cigarette companies’ lies, for their fraud and their

conspiracy. The cigarette companies are 100 percent responsible for that. In fact,

you will see, those are two totally separate questions on your verdict form.” And

Plaintiff made the exact same point later in her closing argument: that although

Lasard may have borne some fault based on her own negligence in continuing to

smoke, she bore no responsibility for Defendants’ acts of concealment. This

argument suggests that Plaintiff did not envision a reduction of damages based on

her mother’s fault on the concealment claims.

       Turning to the jury instructions, Defendants seem to misread the very jury

instructions they cite. Defendants quote the district court’s instruction that, “[t]he

Court will prepare the judgment to be entered and will reduce plaintiff’s total

damages as required by law.” Defendants focus on the words “will reduce” but

neglect the phrase “as required by law.” That said, the above language is

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admittedly somewhat cryptic and does not clearly communicate to the jury that the

damages award will not necessarily be reduced based on the jury’s assessment of

fault. That is, a jury could understand “as required by law” to be a qualifying

phrase that means the court will reduce plaintiff’s total damages “only if required

by law,” suggesting to the jury that there may be some uncertainty whether the

damages will be reduced based on a finding that Plaintiff is partially responsible

for her own injuries. On the other hand, the jury could arguably understand the

word “as required by law” to mean “which is required by law.” That interpretation

would prompt the jury to conclude that its proportional assessment of fault would

be dispositive and require a reduction in plaintiff’s total damages. A jury’s

assessment of the proper amount of damages could be impacted by the particular

interpretation it gives to this particular instruction.

       Plaintiff, however, anticipated and attempted to ameliorate this ambiguity.

Plaintiff’s proposed jury instructions included an instruction that “[u]nder the law,

some claims are subject to reduction due to the fault of the claimant and others are

not.” Plaintiff explained:

       What defendants have done on some occasions is argue that if we
       have not explained that [comparative fault does not apply to the
       intentional tort claims] very clearly to the jury in opening and closing
       and throughout the case or even explained it clearly in the jury
       instructions or the verdict form, that somehow we have waived
       Florida law that comparative fault does not apply to the intentional
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      tort. So we would seek language in here that explains that the
      recovery or award will be reduced by your Honor under Florida law
      and that some -- and specifically state that, you know, certain claims
      of plaintiff would be reduced for comparative fault and some claims,
      the intentional torts, would not be reduced and your Honor would take
      care of that under Florida law.

(Emphasis added).

      The court responded, “I mean, I don’t make the distinction that you are

requesting, but I’m saying that I will make the allegations.” To this, Plaintiff

responded, “Correct, your Honor. And we assume you will make it under Florida

law. Comparative fault does not apply to the fraud and conspiracy claim.”

      Later in the hearing, Plaintiff again reiterated that “this is a[n] issue of

waiver and whether or not we waive it.” To this, the court recognized, “you are

preserving -- you’re not waiving. I understand that. I think the record will reflect

that.” And again in the hearing, the court stated to Defendants that “for purposes

of the jury instructions, they are not construing the giving of this instruction as a

waiver.” As Plaintiff’s counsel later argued to the district court, in her

understanding of the instructions, they “make[ ] clear that the judge will reduce as

required by law. So it doesn’t say ‘will reduce.’ It says ‘as required by law.’” The

court recognized this and explained that, by giving a less definite instruction, it was

merely recognizing that the parties disputed the applicability of the comparative



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fault statute, and that the court would decide which interpretation was correct after

the verdict.

       In the end, though, it was Defendants who were responsible for the jury

instruction in question, with Defendants having persuaded the district court that

Plaintiff’s clarification should not be made to the jury. 8 Thus, Defendants cannot

be heard to now complain about jury confusion that may have resulted from the

giving of that charge.

       As to whether Plaintiff waived anything, in rejecting Defendants’ post-

verdict request that damages be reduced based on the jury’s assessment of fault,

the district court held that Plaintiff had not waived her right to avoid comparative

fault reduction through the jury instructions. We agree. The district court’s

conclusion is supported by the record, as described above. Plaintiff clearly

communicated her intent not to not waive her right to unapportioned damages and

offered a means whereby the court could clarify to the jury that its decision to

apportion fault might not necessarily result in a reduction of the damages.

Defendants could not have been caught off-guard by Plaintiff’s post-verdict

request that damages not be reduced.

8
  At the charging conference, Plaintiff, as described above, pushed for an instruction to clarify
for the jury that the damages for the intentional torts would not be reduced by comparative fault.
In response, Defendants asserted that they “disagree[d] with that as a matter of Florida law”
because “comparative fault applies to the case as a whole regardless of what particular claim . . .
whether [the jury] finds yes or no on intentional torts versus non-intentional torts.”
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       The Florida cases cited by Defendants in support of their waiver argument

do not suggest otherwise. We have recognized that, in the context of Engle

progeny cases, it can be “fairly infer[red]” from the Florida Supreme Court’s

opinion in Schoeff v. R.J. Reynolds Tobacco Company, 232 So. 3d 294 (Fla. 2017),

“that the [Florida Supreme Court] is not keen on the notion of waiver.” Smith, 880

F.3d at 1282. Indeed, in Schoeff, the Florida Supreme Court, addressing similar

conduct, held that a trial court abused its discretion when it held that an Engle-

progeny plaintiff had waived the intentional tort exception by arguing comparative

fault on her negligence claims. 9 232 So. 3d at 306. As described above, that is

what Plaintiff did here.

       Accordingly, we hold that Plaintiff did not waive her statutory right to

unapportioned damages, and she is entitled to the full compensatory damages

(post-remittitur) that the district court awarded her.

V.     CONCLUSION




9
  In doing so, the Florida Supreme Court also overruled R.J. Reynolds Tobacco Company v.
Hiott, 129 So. 3d 473 (Fla. 1st DCA 2014)—an opinion relied on by Defendants—“to the extent
[Hiott] held that the intentional tort exception is waived when an Engle progeny plaintiff argues
comparative fault on the negligence counts.” Schoeff, 232 So. 3d at 306. The other case relied
on by Defendants—R.J. Reynolds Tobacco Company v. Sury—upheld a trial court’s
determination that the plaintiff had not waived the intentional tort exception and does not
establish what sort of conduct would constitute waiver. 118 So. 3d 849, 851–52 (Fla. 1st DCA
2013). For this reason, Sury is not instructive here.
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      We reject Defendants’ due process arguments because, as we held in

Walker, Graham, and Burkhart, the use of the Engle findings to establish the

conduct elements of the progeny plaintiffs’ tort claims is a constitutionally

permissible application of res judicata. We reject Defendants’ assertion that their

Seventh Amendment rights were violated because we conclude that the jury was

not asked or required to reexamine the Engle findings. Finally, because the district

court neither misinterpreted nor misapplied Florida law and Plaintiff did not waive

her statutory right to full, unapportioned damages, we reject Defendants’ assertion

that the damages award should have been apportioned based on Lasard’s

comparative fault. For these reasons, we AFFIRM the district court.




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MARTIN, Circuit Judge, concurring:

       My approach to the question of whether giving preclusive effect to the Engle

jury’s fraudulent-concealment and conspiracy-to-fraudulently-conceal findings

violates due process is different from that of the Majority. 1 I write separately for

that reason. In Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir.

2017) (en banc) our court held that giving preclusive effect to the Engle jury’s

negligence and strict liability findings did not violate due process. Id. at 1174. I

recognize that the fraudulent-concealment and conspiracy-to-fraudulently-conceal

findings that we address here were not considered by our en banc court in Graham.

Even so, I view the reasoning of Graham to foreclose any due process challenge to

Engle’s concealment findings, just as it did for Engle’s negligence and strict

liability findings. It was for that reason that I dissented from my colleagues’

decision, over seven months ago, to order supplemental briefing following this

Court’s decision in Graham. And also for that reason, I continue to disagree with

the Majority’s description of the questions presented in this case after Graham was

decided. See Maj. Op. at 16–23.




       1
        I join the Majority’s holdings that the punitive damages award did not violate the
Seventh Amendment Reexamination Clause and that the District Court correctly declined to
reduce Ms. Searcy’s damages under Florida’s comparative fault statute.
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      Our divergent views stem from our disagreement about how Graham

decided the due process issue. The Majority says Graham held that due process

was satisfied only after the court conducted an exacting, de novo review of the

Engle trial record to determine what was “actually decided” by the Engle jury.

Maj. Op. at 21–22; see Graham, 857 F.3d at 1182–83. But to the contrary, Graham

actually held that the Florida Supreme Court’s rulings about what the Engle jury

decided were due full faith and credit.

      Before Graham said anything about the trial record, the opinion first

reviewed the Florida Supreme Court’s decisions in Engle v. Liggett Group, Inc.,

945 So. 2d 1246 (Fla. 2006), and Philip Morris USA, Inc. v. Douglas, 110 So. 3d

419 (Fla. 2013). It concluded “[t]he Florida Supreme Court made clear in Douglas

that the Engle jury decided common elements of the negligence and strict liability

of the tobacco companies for all class members.” Graham, 857 F.3d at 1182.

After it discussed these decisions of the Florida Supreme Court, Graham then

referenced the Engle trial record in order to apply those Florida Supreme Court

rulings, not to conduct a de novo review of what had been decided by the Engle

jury. Graham, 857 F.3d at 1182–83. The en banc court concluded that, “[a]fter

reviewing the Engle trial record, we are satisfied that the Florida Supreme Court

determined that the Engle jury found the common elements of negligence and strict

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liability against Philip Morris and R.J. Reynolds.” Id. at 1182 (emphasis added);

see also id. at 1183 (“The only way to make sense of these proceedings is that the

Florida courts determined that the Engle jury actually decided issues common to

the class . . . .”). Then in its final paragraph on the due process issue, Graham

makes clear its holding derived from giving full faith and credit to the Florida

Supreme Court’s decision in Engle. On that point, our en banc court stated, “We

do not give full faith and credit to the decision in Douglas; we instead give full

faith and credit to the jury findings in Engle. The Florida Supreme Court in Engle

interpreted those findings to determine what the jury actually decided . . . .”

Graham, 857 F.3d at 1185. This summary underscores that the holding in Graham

rests on giving full faith and credit to the judgment of the Florida Supreme Court.

      In addition to what Graham said about it, giving full faith and credit to

Florida’s highest court is consistent with this Court’s prior precedent in Walker v.

R.J. Reynolds Tobacco Co., 734 F.3d 1278, (11th Cir. 2013). And of course,

Graham expressly “reaffirm[ed]” Walker. Graham, 857 F.3d at 1174. In Walker,

a panel of this Court stated:

      If due process requires a finding that an issue was actually decided,
      then the Supreme Court of Florida made the necessary finding when it
      explained that the approved findings from Phase I “go to the
      defendants underlying conduct which is common to all class members
      and will not change from case to case” and that “the approved Phase I

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       findings are specific enough” to establish certain elements of the
       plaintiffs’ claims.

Walker, 734 F.3d at 1289 (quoting Douglas, 110 So. 3d at 428). Read together,

Walker and Graham do not require a de novo review of the trial record to

determine what the Engle jury decided.

       It is for these reasons that I do not endorse the Majority’s description of the

threshold question facing us in this case after Graham. See Maj. Op. at 18–23. 2

Under Graham, our job is only to determine whether the Florida courts had ruled

that the Engle jury actually decided the common elements of fraudulent

concealment and conspiracy to fraudulently conceal for all class members.

Because the Florida Supreme Court has so held, this analysis should have been

straightforward. See Graham, 857 F.3d at 1182 (summarizing the Florida Supreme

Court’s ruling that “the Phase I findings establish the causal link between the

tobacco companies’ conduct and the class members’ injuries because the

companies acted wrongfully toward all of the class members”).



       2
         I agree with the Majority that “a state proceeding is only entitled to full faith and credit
if it complies with due process.” Maj. Op. at 18 n.5. But Graham held that the Engle jury
findings were due full faith and credit because the Florida courts had found the Engle jury
“actually decided” those issues. Graham, 857 F.3d at 1185. It strikes me as strong medicine for
the majority to say that I “mischaracterize” Graham, especially since I am the only member of
this panel who was a signatory to the majority opinion in Graham. As such, I merely state my
understanding of the opinion I participated in. And if the Majority thinks we should second
guess the Florida courts’ judgment in that regard, I understand their approach as being
inconsistent with Graham.
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      I arrive at the same result reached by the majority, although at least in part,

by a different route.




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