                Case: 14-14708        Date Filed: 03/07/2018        Page: 1 of 45


                                                                                     [PUBLISH]


                    IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________

                                       No. 14-14708
                                 ________________________

                        D.C. Docket No. 3:09-cv-10727-WGY-HTS


PAULINE BURKHART,

                                                         Plaintiff - Appellee,

versus

R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the Brown and Williamson Tobacco
Corporation and the American Tobacco Company,
PHILIP MORRIS USA, INC.,

                                                         Defendants - Appellants.

                                 ________________________

                        Appeal from the United States District Court
                            for the Middle District of Florida
                              ________________________
                                     (March 7, 2018)

Before TJOFLAT and HULL, Circuit Judges, and BARTLE,∗ District Judge.

TJOFLAT, Circuit Judge:


         ∗
        Honorable Harvey Bartle III, Senior United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
              Case: 14-14708      Date Filed: 03/07/2018     Page: 2 of 45


      This appeal, brought by three tobacco companies (“Appellants”), challenges on

multiple grounds the judgment entered against them and in favor of Pauline Burkhart

for compensatory and punitive damages. The judgment was awarded after a

bifurcated, ten-day trial in which the jury found in Burkhart’s favor on her claims of

negligence, strict liability, fraudulent concealment, and civil conspiracy. This case,

which is one of thousands of Engle progeny lawsuits initiated by smokers in the state

of Florida against this country’s major tobacco companies, has remained pending on

appeal for several years while awaiting resolution of other appeals in this Court and

the Florida Supreme Court. With the benefit of those decisions, and after carefully

reviewing the record and considering the parties’ written and oral arguments, we

affirm the District Court’s judgment in full.

                                            I.

                                A. The Engle Litigation

      This case has its genesis in 1994, when six plaintiffs suffering from lung

diseases sued this country’s major cigarette manufacturers for strict liability,

negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy

to commit fraud, and intentional infliction of emotional distress. Walker v. R.J.

Reynolds Tobacco Co., 734 F.3d 1278, 1281 (11th Cir. 2013). The plaintiffs brought

their suit as a class action on behalf of all Florida citizens and residents “who have

suffered, presently suffer or have died from diseases and medical conditions caused

by the addiction to cigarettes that contain nicotine,” as well as their survivors. R.J.

                                            2
              Case: 14-14708      Date Filed: 03/07/2018     Page: 3 of 45


Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. Dist. Ct. App. 1996). The

Florida trial court certified the class and divided the case up into three phases. In the

first phase, after a year-long trial, a jury decided “common issues relating exclusively

to defendants’ conduct and the general health effects of smoking,” such as causation

and the class’s entitlement to punitive damages. Philip Morris USA, Inc. v. Douglas,

110 So. 3d 419, 428 (Fla. 2013) (quoting Engle v. Liggett Grp., Inc., 945 So. 2d 1246,

1277 (Fla. 2006) (per curiam)). After deliberations, the jury answered nine questions

on the jury form, which was agreed upon by the class and the tobacco companies.

The first two answers resolved questions of causation: “1 (that smoking cigarettes

causes [20 specific diseases])” and “2 (that nicotine in cigarettes is addictive).”

Engle, 945 So. 2d at 1277. In addition to these findings, the jury found the following

with respect to the tobacco companies’ conduct:

      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).

Id. The jury further “made nonspecific findings in favor of the plaintiffs on Questions

4[b] (fraud and misrepresentation) and 9 (intentional infliction of emotional distress).”

                                            3
               Case: 14-14708      Date Filed: 03/07/2018     Page: 4 of 45


Id. at 1255. Finally, the jury found that the tobacco companies’ conduct entitled the

class to punitive damages. Id. at 1262.

       In the second phase, the jury concluded that the tobacco companies were liable

to three of the class’s representatives and accordingly awarded compensatory damages

in the amount of $12.7 million. Walker, 734 F.3d at 1282. The jury also set a $145

billion punitive damages award on behalf of the entire class. Id.

       The third phase would have asked new juries to “decide specific causation and

damages for the remaining class members in Phase III.” Graham v. R.J. Reynolds

Tobacco Co., 857 F.3d 1169, 1175 (11th Cir. 2017) (en banc), cert. denied, 138 S. Ct.

636 (2018). However, before Phase III began, the tobacco companies appealed the

judgments in both of the first two phases of the trial. Id. at 1178. The Florida

Supreme Court affirmed in part and reversed in part. Engle, 945 So. 2d at 1254. The

Court held that class certification was impossible with respect to the upcoming third

phase of the trial, which involved questions of liability to individual plaintiffs,

“because individualized issues such as legal causation, comparative fault, and

damages predominate.” Id. at 1268. However, the Court “retained” the jury’s Phase I

findings as to the tobacco companies’ conduct “other than those on the fraud and

intentional infliction of emotional distress claims, which involved highly

individualized determinations, and the finding on entitlement to punitive damages

questions, which was premature.” Graham, 857 F.3d at 1178 (quotations and

alterations omitted) (quoting Engle, 945 So. 2d at 1269). Hence the Court explained

                                             4
              Case: 14-14708      Date Filed: 03/07/2018     Page: 5 of 45


that going forward, individual plaintiffs could pursue “individual damages actions” on

their own. Engle, 945 So. 2d at 1269. When they do so, the Court explained, those

“retained findings” from the first two phases of the trial “will have res judicata effect

in those trials.” Id. The Court vacated accordingly the class-wide punitive damages

finding the jury awarded in Phase II. Id. at 1276.

      Thousands of individual lawsuits followed. These suits—known commonly as

“Engle progeny” suits—presented the Florida Supreme Court with a new question

arising from its decision to give preclusive effect to the Engle jury’s Phase I findings.

This question concerned the “extent to which the smokers could rely on the approved

findings from Phase I to establish certain elements of their claims.” Graham, 857

F.3d at 1178. The Court resolved this question in Philip Morris USA, Inc. v. Douglas,

110 So. 3d 419 (Fla. 2013). It held that the Phase I findings were “common to all

class members and will not change from case to case”; hence, those findings were

sufficient to “conclusively establish” the conduct elements of the plaintiffs’ individual

claims, to the extent those findings matched the elements required to establish the

plaintiffs’ tort claims. Id. at 428–30. The Court also held that giving preclusive effect

to the Phase I findings did not violate the tobacco companies’ due process rights under

the federal Constitution. Id. at 430.

      In Walker v. R.J. Reynolds Tobacco Co., we too held that giving preclusive

effect to the jury’s findings in Phase I of Engle did not run afoul of the Due Process

Clause. 734 F.3d at 1290. We explained that the Constitution requires us to give full

                                            5
                Case: 14-14708        Date Filed: 03/07/2018       Page: 6 of 45


faith and credit to the Florida Supreme Court’s decisions in Engle, as interpreted by

Douglas, unless doing so would violate the tobacco companies’ due process rights.

Id. at 1287. We concluded that giving preclusive effect to the Engle jury’s Phase I

findings does not so deprive the tobacco companies of their right to contest their

liability that it violates their constitutional right to due process. Id. at 1290. We

reaffirmed this conclusion en banc in Graham v. R.J. Reynolds Tobacco Co. with

respect to the negligence and strict-liability claims brought by the plaintiff in that

case. 1 857 F.3d at 1174.

                                          B. This Case

       In the instant case, an Engle progeny suit, Pauline Burkhart sued R.J. Reynolds,

Philip Morris, and Lorillard for negligence, strict products liability, fraudulent

concealment, and conspiracy to fraudulently conceal. Burkhart, who began smoking

in the 1950s and continued to do so until the 1990s, alleged that smoking caused her

chronic obstructive pulmonary disease (COPD). She sought compensatory and

punitive damages.

       After extensive discovery and pretrial motions, the trial began on May 5, 2014.

The District Court divided the trial into two phases. In the first phase, the Court asked

the jury to consider whether Appellants were liable to Burkhart for compensatory and

punitive damages, to determine whether Burkhart was contributorily negligent, and, if


       1
         We did not, however, decide whether giving preclusive effect to Engle progeny plaintiffs’
fraudulent concealment and conspiracy claims violates due process, because the jury in Graham
found for the plaintiff on her negligence and strict-liability claims only. 857 F.3d at 1180.
                                                 6
              Case: 14-14708      Date Filed: 03/07/2018    Page: 7 of 45


so, to apportion fault among Burkhart and the three tobacco companies. The Court

also instructed the jury to establish a compensatory damages award if it did find

Appellants were liable to Burkhart, and that the Court would thereafter apportion and

reduce the award based on the jury’s comparative-fault finding. The Court instructed

the jury to give preclusive effect to the Engle jury’s findings as to Appellants’ conduct

for purposes of establishing the conduct elements of Burkhart’s negligence, strict-

liability, and intentional-tort claims. In the second phase, the existence of which

depended upon the jury’s finding of liability for punitive damages in the first phase,

the Court instructed the jury to determine the proper punitive damages award.

      Two days into the trial’s first phase, Burkhart suffered a medical incident in the

presence of the jury and was taken to the hospital. See infra p. 15–17. Burkhart

recovered, and the trial continued after the District Court questioned the jurors

individually about the incident’s effects on their impartiality and thereafter denied

Appellants’ motion for a mistrial.

      The first phase of the trial lasted eight days. The District Court then sent the

jury to deliberate on the question of Appellants’ liability to Burkhart. The jury

instructions stated that the jury must treat as established that Appellants were

negligent in bringing their products to the market, that the products were unreasonably

dangerous, that Appellants concealed information about the risks of smoking that was

not otherwise available to the public, and that they conspired amongst themselves to

do so. The instructions did, however, explain to the jury that it must determine

                                            7
              Case: 14-14708      Date Filed: 03/07/2018    Page: 8 of 45


whether (1) Burkhart was a member of the Engle class; (2) whether she filed her claim

within the applicable limitations period; (3) for purposes of her negligence and strict-

liability claims, whether her smoking addiction caused her COPD; (4) for purposes of

her fraudulent concealment and conspiracy claims, whether she relied on Appellants’

concealment in continuing to smoke; and (5) for purposes of establishing Appellants’

liability for punitive damages, whether Burkhart proved by clear and convincing

evidence that Appellants’ concealed information about the risks of smoking with

knowledge of the wrongfulness of their conduct and the risks such concealment

presented to the public.

      The jury returned its verdict in favor of Burkhart on all of her claims. It found

Appellants liable to Burkhart for compensatory damages and that Appellants’

intentional conduct met the statutory standard to justify an award of punitive damages.

The jury assessed Burkhart’s compensatory damages at $5 million, and found that R.J.

Reynolds’ conduct caused twenty-five percent of the damages, Philip Morris’ fifteen

percent, and Lorillard’s ten percent.

      Next, the trial proceeded to its second phase, which was conducted solely for

the purpose of fixing a punitive damages amount. After less than two hours of

deliberating, the jury sent the Court a note saying that it could not “come to a

unanimous decision.” Appellants asked the Court to deliver an Allen charge to the

jury, but the Court refused to do so at that point and instead delivered a written

response instructing the jurors to continue deliberating and encouraging them to “re-

                                            8
                     Case: 14-14708        Date Filed: 03/07/2018       Page: 9 of 45


examine” their positions if they were to “become convinced” their positions were

wrong. About forty minutes later, the jury sent a second note saying that it still could

not reach a unanimous decision “without giving up honest beliefs.” The Court then

summoned the jury, delivered this Circuit’s pattern Allen charge,2 and sent the jury

back to deliberations. Fifty minutes later, the jury returned a unanimous verdict

awarding punitive damages as follows: $1,250,000 against R.J. Reynolds, $750,000

against Philip Morris, and $500,000 against Lorillard.

          After trial concluded and the District Court issued its judgment, Appellants

moved for judgment as a matter of law and a new trial. The District Court denied

those motions. Appellants timely appealed.3

                                                     II.

          Appellants challenge the trial outcome on numerous grounds. Because many of

those grounds rely on conduct by the District Court and the litigants that occurred at

trial, we begin each subsection below with a recitation of the pertinent facts giving

rise to the claim at issue.

                             A. Statute of Limitations Instructional Error



          2
          See 22A C.J.S. Criminal Procedure and Rights of Accused § 1931 (2017) (“An Allen charge
is a supplemental instruction that advises deadlocked jurors to reconsider their positions and to give
deference to each other’s views with a disposition to be convinced of each other’s argument. This is
the defining characteristic of the charge. It is designed to encourage a divided jury to agree on a
verdict and avoid a mistrial, while stating the need for unanimity in the jury’s decision on the
verdict.” (footnotes omitted)).
          3
              During the pendency of this appeal, R.J. Reynolds replaced Lorillard as successor by
merger.
                                                      9
              Case: 14-14708      Date Filed: 03/07/2018     Page: 10 of 45


       Appellants first argue that the District Court’s jury instruction on the applicable

statute of limitations misstated Florida law and warrants a retrial. COPD, like other

smoking-related lung diseases, is a type of “creeping disease,” a disease that worsens

progressively over a relatively long period of time. Florida’s statute of limitations is

clear with regard to products-liability actions involving creeping diseases: it says the

limitations period begins “only when the accumulated effects of the deleterious

substance manifest themselves to the claimant, in a way which supplies some

evidence of causal relationship to the manufactured product.” Carter v. Brown &

Williamson Tobacco Corp., 778 So. 2d 932, 936 (Fla. 2000) (internal quotation marks

and alterations omitted). It is the jury’s responsibility to sort out when this first took

place. “[T]he question of when the statute of limitations begins to run” in a personal-

injury case involving a creeping disease “is generally treated as a fact question for a

jury to resolve.” Id. at 937 (internal quotation marks and alterations omitted).

       In this case, then, the operative issue under Florida law was when the

accumulated effects of Burkhart’s COPD reached the point where she knew or should

have known that there was a causal relationship between her smoking and her COPD.

Indeed, the parties agreed on language to this effect before the Court changed it. Both

parties’ proposed instructions contained language stating that Burkhart’s suit was

barred if she “knew, or by the exercise of reasonable care should have known, before

May 5, 1990, that she had COPD and that there was a reasonable possibility that her

COPD was caused by cigarette smoking.” (Emphasis added).

                                            10
             Case: 14-14708      Date Filed: 03/07/2018       Page: 11 of 45


      However, the District Court, believing this agreed-upon instruction misstated

the law, changed the instruction and instead told the jury:

      The verdict form will ask you whether the Plaintiff knew, or in the
      exercise of reasonable care should have known, before May 5, 1990, that
      she was addicted to cigarettes, that she had COPD, and that her
      addiction would be causative of her COPD.

(Emphasis added). Appellants argue that this instruction was unfounded under

Florida law and prejudicial to their case. They say the instruction misguided the jury:

“Questions of whether Mrs. Burkhart was addicted, whether the addiction caused her

COPD, and when she knew that it might have done so have no bearing on the proper

limitations inquiry.” This, Appellants say, prejudiced them. The statute of limitations

is an affirmative defense in Florida; hence, the burden fell on Appellants to establish

that the limitations period had lapsed when Burkhart brought suit. In their view,

“requiring [Appellants] to prove when a lay plaintiff knew she suffered an injury

caused by addiction was a considerable burden—and far more onerous than simply

requiring them to prove that she knew she suffered a disease possibly caused by

smoking.” They argue that they “put forth extensive evidence that Mrs. Burkhart’s

COPD had manifested well before 1990 and that she attributed multiple COPD

symptoms to her smoking.” Thus, the District Court’s instructional error in effect

negated this evidence.

      We conclude that the District Court’s instruction was erroneous yet harmless.

The evidence in the trial record established indisputably that Burkhart was diagnosed


                                           11
             Case: 14-14708      Date Filed: 03/07/2018    Page: 12 of 45


with COPD after May 5, 1990. Although Appellants say they “put forth extensive

evidence that Mrs. Burkhart’s COPD had manifested well before 1990 and that she

attributed multiple COPD symptoms to her smoking,” the evidence they cite

establishes only that she experienced general smoking-related symptoms, not

symptoms that would put her on notice that she suffered from COPD. Appellants cite

testimony that Burkhart “had a really good smoker’s cough” in the 1970s, that by the

1980s “her cough was causing chest tightness and taking her breath away” and she

“began to experience shortness of breath when doing yard work, walking up stairs,

and visiting higher altitudes,” and that she “repeatedly suffered from bronchitis”

during those periods.

      Under Florida law, standing alone, these symptoms could not have given

Burkhart notice that she had COPD, let alone that her claim against the tobacco

companies was legally actionable. As the Florida Third District Court of Appeal

observed in a similar tobacco case while ruling on the admissibility of expert

testimony about the timeliness of a doctor’s diagnosis of COPD in the plaintiff,

      [M]any symptoms or effects that might later develop to become a
      compensable injury attributable to smoking—shortness of breath, or
      persistent coughing, for example—do not in isolation provide a
      sufficient legal basis for initiating a lawsuit against a tobacco company.
      Rather, the “manifestations” that are pertinent are symptoms or effects
      that actually disclose that the prospective claimant is suffering from a
      disease or medical condition caused by tobacco use, and which are thus
      sufficient to assert a cause of action against the responsible
      manufacturer(s). In the case at hand, Ms. Frazier could not have filed a
      non-frivolous lawsuit against the appellees in 1986 on a theory that her
      symptoms and pneumonia were compensable results of her addiction to

                                           12
              Case: 14-14708     Date Filed: 03/07/2018     Page: 13 of 45


       tobacco, nor could she have filed such a lawsuit in 1987 for “pneumonia
       and/or bronchitis.” It was not until February 1991 that a set of tests and a
       referral adduced competent evidence that COPD/emphysema was a
       likely suspect.

Frazier v. Philip Morris USA Inc., 89 So. 3d 937, 945 (Fla. Dist. Ct. App. 2012),

approved sub nom. Philip Morris USA, Inc. v. Russo, 175 So. 3d 681 (Fla. 2015).

The Court further explained,

       The issue was not whether [the plaintiff] “had” the creeping, stealthy
       disease of COPD/emphysema before May 5, 1990; the issue was
       whether she knew, or reasonably should have known, enough to permit
       her to commence a non-frivolous tort lawsuit against the appellees on the
       basis of those physical, observable, patent symptoms and effects
       (“manifestations”) before that date.

Id. at 946.

       This analysis is true in the instant case as well. That Burkhart had a smoker’s

cough, shortness of breath, and intermittent bronchitis established only that she

suffered from respiratory symptoms that are ubiquitous among smokers, the majority

of which never develop COPD. Indeed, Appellants’ own expert witness testified that

smoker’s cough is frequent in smokers, and that most smokers who experience it do

not have or will not get COPD.

       In sum, it is undisputed that Burkhart was diagnosed with COPD well after

May 5, 1990. The evidence in the record would not allow a reasonable factfinder to

find that she knew or should have known that she had a smoking-related disease prior

to her COPD diagnosis. Thus, the District Court’s instructional error was harmless,

because it could have prejudiced Appellants only if the evidence presented would

                                           13
               Case: 14-14708    Date Filed: 03/07/2018    Page: 14 of 45


have supported the finding that Burkhart knew or should have known that she had a

smoking-related lung disease prior to May 5, 1990.

                       B. Burkhart’s In-Court Medical Emergency

       Next, Appellants argue that Burkhart’s medical event in the courtroom infected

the jury with prejudice. They contend the District Court should have accordingly

declared a mistrial.

       Three days into the trial, about twenty minutes after the day’s proceedings

began, Burkhart suffered a medical incident. The trial record indicates she stated, “I

think I’m having a stroke.” Exactly what happened immediately afterward is unclear

from the record and subject to differing accounts: Appellants allege Burkhart

“continued crying out in pain for 20 or 30 seconds or perhaps a minute” in the

presence of the jury, while Burkhart alleges the District Court “immediately excused

the jurors.”

       In any event, after the District Court dismissed the jury, Burkhart’s counsel

explained to the Court that the incident might have been related to a fall Burkhart

suffered earlier that morning, or that it might have stemmed from Burkhart’s reaction

to anxiety and stress. Appellants then moved for a mistrial on the basis that the

incident would have a “massive emotional effect” on the jury that would unduly

prejudice Appellants. After hearing arguments from both sides, the District Court

brought the jurors in and asked them one-by-one if they would be able to put the



                                           14
              Case: 14-14708     Date Filed: 03/07/2018     Page: 15 of 45


incident behind them in deciding the case and/or assessing damages. The Court asked

each of the eight jurors the same two questions:

      [First], “do you believe that observing that incident will cause you to
      have sympathy with regard to Mrs. Burkhart’s case to the point where it
      influences your decision on the facts and the law? And, second, whether
      or not in spite of that sympathy, which is natural—nobody should feel
      embarrassed by having such sympathy—whether or not you can make
      your decision strictly on the evidence presented to you, of which this
      incident was not a part?”

      All of the jurors assured the Court that they would not be influenced by the

incident, and that they could render their decision strictly on the basis of the evidence.

None was equivocal. One juror stated, “I do feel sympathetic, but not that it would

impede my judgment in any way.” Another stated, “I can’t say I feel any more

sympathetic today than yesterday. I understand that she’s a sick person or she

wouldn’t be in the lawsuit.” Still another said, “I’m sympathetic with her condition

and the incident that happened, but it won’t affect my decision in any way.” When

asked whether he could “honor [his] oath,” another juror answered, “Unequivocally.”

In addition, the District Court remarked that it “fully agree[d]” with the observation of

Burkhart’s counsel that the jurors “both with their body language and their tone of

voice reflected their willingness to abide by the oath and to ignore the incident.”

      Despite these assurances, Appellants maintain that the jury was irreparably

prejudiced by the event. They contend that “Mrs. Burkhart’s in-court medical

emergency created just the sort of incurable prejudice that requires a new trial,”



                                            15
              Case: 14-14708     Date Filed: 03/07/2018     Page: 16 of 45


particularly because “it pertained directly to her claim for non-economic damages”

like pain and suffering and mental anguish.

      We review a District Court’s ruling on a motion to grant a mistrial based on

unexpected events at trial for abuse of discretion. Messer v. Kemp, 760 F.2d 1080,

1087 (11th Cir. 1985). Such situations warrant considerable deference to the District

Court’s judgment: “Because the trial judge is in the best position to evaluate the

prejudicial effect of a spectator’s outburst, the decision on whether to grant a mistrial

lies within his sound discretion.” Id. Oftentimes, the District Court may cure the

error by instructing the jury to disregard the potentially prejudicial incident. See

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1302–03 (11th Cir. 2001) (holding the

district court did not abuse its discretion in denying a mistrial after unexpected

“emotional outbursts from [the plaintiff] and another witness,” when “[t]he court

questioned each of the prospective jurors about what they had witnessed and what

effect it might have on their partiality” and “[e]ach juror ultimately selected to serve

on the jury stated that he or she could ignore the incident and decide the case based on

the evidence”).

      Here, we conclude that the District Court did not abuse its discretion in denying

Appellants’ motion for a mistrial. Shortly after Burkhart’s medical incident, the

District Court carefully instructed the jury to disregard the episode and consider only

the evidence presented in the case when reaching its verdict. The Court also

questioned the jurors individually as to whether they would be able to keep any

                                            16
              Case: 14-14708     Date Filed: 03/07/2018    Page: 17 of 45


sympathy for Burkhart engendered by the incident from influencing their

deliberations. The jurors responded unequivocally that they would be able to do so.

We have no reason to doubt them under the circumstances of this case. See Raulerson

v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) (per curiam) (“Jurors are presumed

to follow the law as they are instructed.”). We acknowledge that some events could

be so incurably prejudicial that no instruction by the District Court could possibly

remedy them. But based upon the jurors’ unanimous and unequivocal responses and

our deference to the District Court’s sound discretion as a first-hand witness to the

events in question, we are not persuaded that Burkhart’s brief, isolated medical

incident was such an event. We thus find no abuse of discretion.

                              C. Punitive Damages Issues

      Appellants challenge two aspects of the District Court’s handling of the

punitive damages phase of the trial. First, they argue the District Court “improperly

prevented Defendants from opposing Mrs. Burkhart’s request for punitive damages—

even going so far as striking portions of the summation of Defendants’ closing

argument.” Second, they contend the District Court coerced the deadlocked jury into

reaching a unanimous verdict as to the punitive damages amount. We address each

argument in turn.

       1. The District Court’s Conduct During Appellants’ Closing Arguments

      During Appellants’ closing remarks, Burkhart’s counsel twice objected to

portions of their arguments concerned with the extent of Appellants’ wrongdoing in

                                           17
             Case: 14-14708      Date Filed: 03/07/2018    Page: 18 of 45


regards to the concealment and conspiracy torts. The District Court sustained

Burkhart’s objections and instructed the jury each time that Appellants could not re-

litigate the Engle jury’s findings. The first exchange occurred as follows:

      [Appellant R.J. Reynolds’ counsel] MR. BELASIC: Now, Mr. Heimann
      says, well, you know, they kept the dangers secret so she gets extra
      money. You know, he didn’t mention any figure, and so we don’t know,
      but what we do know is that the information on the dangers of smoking
      weren’t a secret. What they’re actually saying is the tobacco companies
      didn’t agree at a certain moment in time. We know they weren’t secret.

      I mean, we had this battle, who could put up the most evidence of
      historical knowledge and information? And I won’t belabor this. But
      one of the things is we ran out of room on the board because it only went
      back to the 1940s.

      And the Florida Department of Health was saying 100 years ago that you
      could call nicotine addictive. As far back as the 1920s—

      [Burkhart’s counsel] MR. HEIMANN: I’m going to object. This is
      challenging the Engle findings. The Engle findings are they concealed
      information that wasn’t known or knowable. That’s the finding. He
      can’t challenge that now.

      THE COURT: He can. I’ll just simply partially sustain. But I’ll have to
      overrule the objection as to his argument.

      He has the right to argue that punitive damages are not warranted
      because there’s no need to deter or punish the conduct.

      MR. BELASIC: And, ladies and gentlemen, if you look in your
      instructions, you will see a specific written instruction from Judge Jones
      that says punitive damages cannot be based on the Engle findings.

      This is a question of Mrs. Burkhart.

      THE COURT: Solely on the Engle findings. It’s not enough to find
      warranted damages, punitive damages solely based upon application of
      the Engle finding.

                                          18
             Case: 14-14708      Date Filed: 03/07/2018   Page: 19 of 45



(Emphasis added). Despite the District Court’s explanation, for the next several

minutes (comprising two pages of the trial transcript), Mr. Belasic continued to argue

that Appellants never concealed information about the health risks of smoking.

Thereafter, the Court again interjected:

      I think I have to re-emphasize, he cannot challenge the Engle findings.
      He cannot do that, say the Engle findings are not true in this case. Can’t
      do that. The Engle findings were to the effect that there was fraud and
      that there was negligence.

      What he can do, however, is to say that in this case, punitive damages
      are not warranted under the standard I’ve given you in the legal
      instructions.

      So just that caution. I’m not going to stop his argument here. I just
      remind you, as a matter of law, he cannot challenge the Engle findings.

Within seconds, Mr. Belasic again turned to contest whether Appellants
committed concealment:

      MR. BELASIC: . . . . So let’s talk about whether or not it was concealed
      and what the experts said.

      We know this is the evidence.

      MR. HEIMANN: Objection.

      THE COURT: I’m going to sustain the objection, sir. You cannot
      challenge the Engle findings that there was misstatement or not
      misstatement.

      MR. BELASIC: All right. May I present the evidence that Dr. Burns
      presented?

      THE COURT: No.



                                           19
             Case: 14-14708     Date Filed: 03/07/2018   Page: 20 of 45


(Emphasis added). Later, Mr. Belasic yet again returned to the issue of whether

Appellants committed fraud, to which the Court responded emphatically:

      MR. BELASIC: . . . . 1990, when they observed smokers of filtered
      cigarettes, they find a lower risk of lung cancer.
      How is that fraud? How did they show—does this make any sense?
      Would the companies want to kill their own customers? Would the
      companies engage in wrongdoing if they’re going to spend all this
      money to make a safer cigarette that the government tries to shut down?
      Would the companies be engaged in wrongdoing if they’re working for
      ten years on published safer cigarette research, and the tobacco
      companies are the ones that are doing it, and the government shuts it
      down?

      MR. HEIMANN: Not really. There’s no evidence of this. This is—he is
      coming up with—

      THE COURT: I have to sustain it. I’m sorry.

      The standard I’ve given you under the legal instructions, which I think
      counsel is trying to change, is punitive damages. This is on instruction
      number 17.

      Punitive damages are warranted if you find the plaintiff has proved by
      clear and convincing evidence that the defendant had actual knowledge
      of the wrongfulness of its conduct.

      I remind you here that wrongfulness of its conduct has already been
      determined by the Engle jury. After listening to more than a year’s
      worth of evidence, I’m not putting you through that burden.

      The Engle jury has already decided that, including the withholding of
      information about the effectiveness, according to their own research, of
      filters and/or perforated filters and/or menthol.

      The Engle jury already decided the wrongfulness. To the extent he’s
      arguing that it was not wrongful conduct, he can’t do that. I’m sorry.

      The burden here is on the plaintiff and the issue here for you to decide
      on punitive damages is whether they’ve proved by clear and convincing

                                         20
             Case: 14-14708     Date Filed: 03/07/2018     Page: 21 of 45


      evidence that the defendant had actual knowledge of the wrongfulness,
      the defendant had actual knowledge of the wrongfulness. The Engle jury
      has already said it was wrongful.

      The question is whether they had actual knowledge of the wrongfulness
      and that there was a high probability of injury or damage and despite that
      knowledge intentionally pursued that course of conduct resulting in the
      plaintiff’s injuries. That’s the issue.

      Were they aware of the wrongfulness, not whether the wrongfulness
      occurred and, therefore, I have to strike those portions where he’s simply
      arguing there was no wrongful conduct. The Engle jury has already
      decided that for us.

      But the plaintiff’s burden is actual knowledge of the wrongfulness and
      despite high probability of injury and despite that knowledge pursued the
      course resulting in the plaintiff’s injuries. That’s the standard. I have to
      remind the jury of that.

      Appellants take issue with these interjections. They contend that the District

Court’s interruptions “reflect[ed] a fundamental misunderstanding of the role of the

Engle findings” and “improperly prevented Defendants from opposing Mrs.

Burkhart’s request for punitive damages.” In their view, cutting off Appellants’

arguments as to their degree of culpability of fraud and concealment had the effect of

conveying to the jury that the punitive damages determination was already made by

the Engle jury—this despite the punitive damages statute requiring a higher burden of

proof (clear and convincing evidence) with respect to proving the intentional conduct

required to justify punitive damages.

      We disagree. District courts have “broad discretion over the scope of closing

argument.” United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982). “Absent a


                                          21
              Case: 14-14708      Date Filed: 03/07/2018     Page: 22 of 45


showing of an abuse of discretion the district court will not be reversed for limiting

summation as long as the defendant has the opportunity to make all legally tenable

arguments that are supported by the facts of the case.” Id. Here, based upon the way

in which Appellants framed their closing arguments, we cannot conclude that the

District Court erred when it interjected to clarify the legal standard for the jury.

       The Florida Supreme Court’s decision in Engle created a unique and difficult

challenge for juries and courts considering punitive damages claims in individual

progeny claims. In Engle, the Florida Supreme Court held that the jury’s findings in

Phase I established—with preclusive legal effect in all subsequent Engle progeny

cases—the conduct elements of the plaintiffs’ tort claims, which included fraud by

concealment, civil-conspiracy concealment, breach of implied warranty, breach of

express warranty, strict liability, and negligence. Engle, 945 So. 2d at 1254–55.

However, the Court also concluded that the jury did not and could not establish the

individualized, plaintiff-specific elements of those claims, namely, causation (did

addiction cause each plaintiff’s respiratory disease) and reliance (with regard to the

fraudulent-concealment and conspiracy claims, did the plaintiffs rely on the tobacco

companies’ misrepresentations). Id. at 1263. Thus, the Phase I jury “did not

determine whether the defendants were liable to anyone.” Id. Nor could Engle

establish the tobacco companies’ liability for purposes of awarding punitive damages.

Under Florida law, to find a defendant is liable for punitive damages, the jury must

find “that the defendant was personally guilty of intentional misconduct or gross

                                            22
               Case: 14-14708        Date Filed: 03/07/2018        Page: 23 of 45


negligence.” Fla. Stat. § 768.72(2). The statute then defines “intentional misconduct”

to mean “the defendant had actual knowledge of the wrongfulness of the conduct and

the high probability that injury or damage to the claimant would result and, despite

that knowledge, intentionally pursued that course of conduct, resulting in injury or

damage.” Id. § 768.72(2)(a). A plaintiff must prove such intentional misconduct by

“clear and convincing evidence.” Id. § 768.72(2).

       Thus, while Engle conclusively established, by “the greater weight of the

evidence,” that Appellants concealed information and conspired to withhold that

information for purposes of awarding compensatory damages under those respective

torts, it could not establish, by clear and convincing evidence, that Appellants had

actual knowledge of the wrongfulness of their conduct and nevertheless intentionally

pursued that conduct.

       The District Court sought to avoid confusion of this standard when it

interrupted R.J. Reynolds’ counsel during Appellants’ closing remarks to make

clarifying comments to the jury. 4 The District Court was concerned that counsel

blurred the distinction between arguing that Appellants did not have knowledge of the

wrongfulness of their conduct (for purposes of awarding punitive damages) and that

they did not conceal information or conspire to conceal information at all (all for

purposes of awarding compensatory damages under Burkhart’s intentional tort



       4
          Mr. Belasic represented Appellant R.J. Reynolds, but he argued in his closing remarks on
behalf of all three Appellants.
                                                 23
              Case: 14-14708     Date Filed: 03/07/2018    Page: 24 of 45


claims). On each occasion in which the District Court interrupted, the Court did so to

clarify to the jury that Appellants could not challenge the Engle findings on

concealment, because R.J. Reynolds’ counsel framed his argument as challenging

whether concealment ever occurred at all.

      For example, before the Court interjected the second time, Mr. Belasic began

with, “So let’s talk about whether or not it was concealed and what the experts said.”

(Emphasis added). Those same comments, “whether or not it was concealed,”

likewise preceded the District Court’s refusal to allow Mr. Belasic to discuss Mr.

Burns’s testimony. Later, Mr. Belasic stressed repeatedly that Appellants did not

commit any wrongdoing: “How is that fraud? . . . . Would the companies engage in

wrongdoing if they’re going to spend all this money to make a safer cigarette that the

government tries to shut down? Would the companies be engaged in wrongdoing if

they’re working for ten years on published safer cigarette research . . . ?” (Emphasis

added). These arguments made no mention of Appellants’ knowledge of their

wrongdoing or the lack thereof; instead, they were framed to discuss the lack of any

wrongdoing at all.

      It is certainly possible that Mr. Belasic was attempting to discuss publicly

available research on the health risks of cigarettes and their own efforts to develop

filters as evidence that Appellants lacked knowledge of the wrongfulness of their

concealment, or even that the evidence did not support a finding of intentional

conduct under the clear-and-convincing standard required for awarding punitive

                                            24
              Case: 14-14708     Date Filed: 03/07/2018     Page: 25 of 45


damages. But Mr. Belasic did not frame his arguments this way, nor did he discuss

the different evidentiary standard that applies under Florida’s punitive damages

statute. Thus, given the misleading way in which R.J. Reynolds framed its own

arguments about Appellants’ conduct, we find no fault in the District Court’s

intervention in Mr. Belasic’s remarks to clarify the legal standard to the jury.

      This is especially true considering that the jury was tasked with deciding both

compensatory and punitive damages liability at the time Appellants made their closing

arguments. This was not an argument made in a separate trial solely on the issue of

punitive damages, occurring after Appellants’ liability for compensatory damages had

been determined. The jury in this case was instead tasked with answering questions

about Burkhart’s personal situation—class membership, causation, and reliance—

upon which Appellants’ compensatory liability to Burkhart would depend. At the

same time, the jury was required to answer questions about Appellants’ conduct—

whether Appellants had actual knowledge of their wrongdoing and nevertheless

intentionally pursued the conduct in question—upon which punitive damages liability

would depend. And, the jury had to answer the latter questions while giving the Engle

jury’s findings as to Appellants’ conduct preclusive effect for purposes of awarding

compensatory damages. Thus, the District Court had to draw these distinctions

carefully so that the jurors could keep these legal standards separate in their minds.

      While this task was already delicate enough, Appellants’ approach in closing

argument made the Court’s job even harder. And even when it did intervene to

                                           25
              Case: 14-14708     Date Filed: 03/07/2018     Page: 26 of 45


preserve these distinctions, the District Court made sure to explain to the jury that

Appellants were allowed to argue against punitive damages under the clear-and-

convincing evidence standard. For example, during its final intervention during

Appellants’ arguments, the Court explained:

      The question is whether they had actual knowledge of the wrongfulness
      and that there was a high probability of injury or damage and despite that
      knowledge intentionally pursued that course of conduct resulting in the
      plaintiff’s injuries. That’s the issue.

      Thus, owing to the broader context of the case, the Court was rightfully

concerned that Appellants were attempting to muddy the legal waters for the jury by

arguing that they committed no fraud or concealment at all. We therefore find no

abuse of discretion in the District Court’s careful explanation to the jury of the various

legal standards in response to Appellants’ ambiguous comments during closing

argument.

                          2. The District Court’s Allen Charge

      Appellants next contest the District Court’s Allen charge during the jury’s

Phase II deliberations. Once the jury delivered its Phase I verdict, which established

Appellants’ liability for compensatory and punitive damages, the trial moved to Phase

II, which was dedicated solely to setting a punitive damages amount. After the parties

presented their evidence and closing arguments, the jury entered deliberations and

quickly found it difficult to reach a unanimous verdict. The jury informed the Court

that it could not “come to a unanimous decision” and asked the Court what “the next


                                           26
              Case: 14-14708     Date Filed: 03/07/2018    Page: 27 of 45


step” would be. After conferring with the parties, the Court rejected Appellants’

request to give a pattern Allen charge and instead sent the following response:

      Each of you must decide the case for yourself, but only after fully
      considering the evidence with the other jurors. So you must discuss the
      case with one another in trying to reach an agreement. While you’re
      discussing the case, don’t hesitate to re-examine your own opinion and
      change your mind if you become convinced that you were wrong. But
      don’t give up your honest beliefs just because others think differently or
      because you simply want to get the case over with. Remember that in a
      very real way, you’re the judges, judges of the facts. Your only interest
      is to seek the truth from the evidence in the case.

The Court explained to counsel that it chose to send this instruction instead of an

Allen charge because it was concerned about the coercive nature of Allen charges and

thus gave the above instruction to “make sure [it wasn’t] imposing undue burden on

[the jurors] to change their opinions.”

      Forty minutes later, the jury again informed the Court it was unable to reach a

unanimous decision:

      Your Honor, after considering the evidence with other jurors, we have
      each decided the case for ourselves. We examined our own opinions and
      considered and reconsidered the opinions of all jurors. Unfortunately,
      we find we are still unable to reach a unanimous decision and it does not
      look likely that we will be able to do so without giving up honest beliefs.
      Again, our apologies, but what is our next step?

      At this point, the Court decided to deliver an Allen charge. Appellants objected

on the grounds that “any further instruction would be unduly coercive.” The Court




                                           27
              Case: 14-14708        Date Filed: 03/07/2018         Page: 28 of 45


overruled Appellants’ objection and delivered this Circuit’s pattern Allen charge,

along with some prefatory remarks.5




      5
        The Court’s complete Allen charge stated:
      You sent us out a note indicating further that you cannot reach a unanimous verdict.
      And as I stated at the beginning of the case, you are the judges in this case. You must
      make your own honest decisions attempting to come to a unanimous verdict, but only
      if you can.

      However, and, therefore, I emphasize that I cannot place, and am prohibited from
      placing upon you, undue pressure to reach a verdict if you honestly cannot.
      However, I am permitted to read you the following charge, specifically approved by
      the Supreme Court and by the Eleventh Circuit. And, therefore, I ask you to follow
      along with this instruction, please, as I read it.

      Members of the jury[:]

      I’m going to ask you to continue your deliberations, one last time, to reach a verdict.
      Please consider the following comments.

      This is an important case. The trial has been expensive in terms of time, effort,
      money, and emotional strain to both the plaintiff and the defendant. If you fail to
      reach a verdict, the case remains open and may have to be tried again.

      A second trial would be costly to both sides. And there’s no reason to believe either
      side can try it again better or more exhaustively than they have tried it before you.
      Any future jury would be selected in the same manner and from the same source as
      you.

      There’s no reason to believe that the case could ever be submitted to a jury of people
      more conscientious, more impartial, or more competent to decide it, or that either side
      could produce more or clearer evidence.

      It’s your duty to consult with one another and to deliberate with a view to reaching an
      agreement, if you can do it, without violating your individual judgment.

      You must not give up your honest beliefs about the evidence’s weight or effect solely
      because of other jurors’ opinions or just to return a verdict. But you must each decide
      the case for yourself, but only after you consider the evidence with your fellow jurors.

      You shouldn’t hesitate to re-examine your own views and change your opinion if you
      become convinced it’s wrong.


                                                28
              Case: 14-14708         Date Filed: 03/07/2018        Page: 29 of 45


      The jury then resumed deliberations, and, fifty minutes later, returned a verdict.

The jury awarded punitive damages in the amount of $1,250,000 against R.J.

Reynolds, $750,000 against Philip Morris, and $500,000 against Lorillard.

      Appellants argue that these instructions were unduly coercive. They observe

that this Court “still permits the standard Allen charge, but only grudgingly,” on

account of the coercive nature of such charges. Thus, Appellants contend, because an

Allen charge is already “borderline” coercive, any coercive conduct that occurs in

addition to an Allen charge is enough to “tip the balance from a barely permissible

instruction to an inherently coercive one.”

      We do not disagree with Appellants to the extent they contend additional

coercive conduct by a District Court in addition to an Allen charge could tip the scales


      To bring your minds to a unanimous result, you must openly and frankly examine the
      questions submitted to you with proper regard for the opinion of others and with
      willingness to re-examine your own views.

      If a substantial majority of you is for a verdict for one party or the other, we have no
      idea whom, each of you who holds a different position ought to consider whether
      your position is reasonable.

      It may not be reasonable since it makes so little impression on the minds of your
      fellow jurors who bear the same responsibility, serve under the same oath, and have
      heard the same evidence.

      You may conduct your deliberations as you choose, but I suggest that you now
      carefully re-examine and reconsider all the evidence in light of the Court’s
      instructions on the law.

      You may take all the time that you need, but I remind you that in your deliberations,
      you are to consider the Court’s instructions as a whole. You shouldn’t single out any
      part of any instructions, including this one, and ignore others.

      One last time, I’ll ask you to return to the jury room and continue your deliberations.
                                                29
              Case: 14-14708      Date Filed: 03/07/2018     Page: 30 of 45


in favor of undue jury coercion. But that did not happen in this case. Appellants

claim the Court gave the jury three separate coercive instructions before and during

deliberations. The first so-called “instruction” occurred just before the jury retired to

deliberate, when the Court told the jury, “I simply remind you that anything placed on

each of the three lines must be a unanimous verdict.” Appellants claim that this

reminder was an “unwarranted repetition [that] improperly suggested that the jury had

to reach a verdict.” We reject this baseless argument: the District Court’s statement

speaks for itself.

       Next, Appellants claim the District Court’s instruction to the jury after the jury

first informed the Court of its inability to reach a unanimous verdict “intensified the

pressure” to reach a verdict. Not so. The statement was considerably weaker than a

pattern Allen charge and made clear to the jurors that they should maintain their firmly

held convictions. The Court encouraged the jurors “to re-examine your own opinion

and change your mind if you become convinced that you were wrong,” but

immediately followed that exhortation up by cautioning the jurors not to “give up

your honest beliefs just because others think differently or because you simply want to

get the case over with.” Despite Appellants’ contention, the “clear import” of this

instruction was not in any way a signal to the jury that “the court refused to accept a

deadlock.” Indeed, the District Court would have been hard-pressed to craft a more

balanced and non-coercive instruction to the jury. This is especially true in light of

the short length of time the jury had been deliberating when it sent its first note to the

                                            30
              Case: 14-14708      Date Filed: 03/07/2018     Page: 31 of 45


Court. After ten days of trial, the jury had deliberated for well under two hours. The

District Court was well within its discretion to conclude that a full-throated Allen

charge was not yet appropriate and to instead respond to the jury in the manner in

which it did. See United States v. Alonso, 740 F.2d 862, 877 (11th Cir. 1984) (“The

timing of an Allen charge is within the trial court’s discretion.”).

       Finally, the Allen charge itself (which Appellants erroneously call “a third push

for unanimity”) was a verbatim use of the pattern Allen charge used in this Circuit—

including the language making clear to the jurors that they were not expected to

abandon their honest beliefs. See Pattern Civ. Jury Instr. 11th Cir. 2.8; United States

v. Trujillo, 146 F.3d 838, 846–47 (11th Cir. 1998) (finding no abuse of discretion

when a district court used a modified Allen charge that “specifically request[ed] that

no juror [wa]s expected to give up an honest belief he or she may have as to the

weight or effect of the evidence.” (quotations omitted)). Reversal of a District Court

on the basis of an Allen charge it delivered is warranted only if the charge was

“inherently coercive.” United States v. Brokemond, 959 F.2d 206, 210 (11th Cir.

1992). The District Court’s pattern Allen charge in this case was not.

       That the charge was given after the Court’s prior instruction did not make that

charge, or the totality of the circumstances, unduly coercive. We have held that a

District Court’s delivery of two Allen charges in the same trial was not an abuse of

discretion when the two charges were not coercive under the totality of the

circumstances. See United States v. Davis, 779 F.3d 1305, 1313 (11th Cir. 2015)

                                            31
                 Case: 14-14708   Date Filed: 03/07/2018      Page: 32 of 45


(“[W]hat counts is not the number of instructions but the overall circumstances and

risk of coercion.”). In this case, the District Court initially instructed the jury to

continue deliberating by using a communication significantly weaker than a typical

Allen charge, and then followed up with a pattern Allen charge. The Court delivered

both of those communications less than three hours after jury deliberations began. See

id. at 1314 (“The risk of coercion increases as deliberations run longer.”). In both of

those communications, the Court expressly told the jurors not to abandon their honest

convictions, and the Court told the jury in its Allen charge that this would be the last

time it would instruct the jury to continue deliberating after an impasse. Thus, any

reasonable juror would have been well aware that holding firm just one more time

would have been acceptable and would have resulted in a mistrial, despite the fact that

deliberations had gone on for less than three hours in total. Simply put, the Court’s

conduct was not coercive under those circumstances. We therefore find no abuse of

discretion with respect to the Court’s instructions to the jury during Phase II

deliberations.

                            D. Comparative-Fault Reduction

       Appellants next argue that the trial court erred in refusing to reduce the

compensatory award against them to reflect the jury’s allocation of comparative fault.

       Appellants advance two grounds to support a reduction in the compensatory

damages award. First, they argue that Florida’s comparative-fault statute mandates a

reduction according to the jury’s determination of Burkhart’s comparative negligence.

                                             32
              Case: 14-14708      Date Filed: 03/07/2018     Page: 33 of 45


The statute, Fla. Stat. § 768.81, mandates comparative-fault reduction in negligence

and products-liability actions but does not apply “to any action based upon an

intentional tort.” Id. § 768.81(3)–(4) (emphasis added). In this case, the jury found

Appellants liable for both negligence and intentional torts. Appellants argue that the

statute is only “based upon an intentional tort” when “the entire action is founded or

constructed on an intentional tort.” (Internal quotations and alteration omitted).

       This argument is foreclosed by the Florida Supreme Court’s recent decision in

Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017). In Schoeff, the

Court held that “the comparative fault statute does not apply to Engle progeny cases in

which the jury finds for the plaintiff on the intentional torts such that the

compensatory damage awards in those cases are not subject to reduction.” Id. at 298.

In this case, the jury did just that. Thus, the comparative-fault statute does not

mandate a reduction of Burkhart’s compensatory damages award.

       Next, Appellants argue, notwithstanding the inapplicability of the comparative-

fault statute, Burkhart “waived any right to resist apportionment.” They argue that

she “affirmatively sough [sic] apportionment on her concealment and conspiracy

claims” and “repeatedly invited the jury to consider her degree of fault for her

injuries—without ever limiting that admission of responsibility to the claims for strict

liability and negligence.” They suggest Burkhart did so to “secure two significant

advantages: first, by admitting partial fault without qualification, to stake out a

position crafted to appear as reasonable as possible; and second, by urging a

                                            33
               Case: 14-14708     Date Filed: 03/07/2018    Page: 34 of 45


negligence-to-concealment comparison, to skew the allocation of fault in her favor as

much as possible.”

         Appellants further argue that Burkhart cannot avoid a comparative-fault

damages reduction because the District Court led the jury to believe it would reduce

the jury’s damages award to Burkhart and then failed to do so after the verdict was

received. In support of this argument, Appellants cite the Florida First District Court

of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 473 (Fla. Dist.

Ct. App. 2014). In Hiott, the First District hypothesized that the jury might have

“reached a different verdict on damages had it known” that the trial court would not

reduce the plaintiff’s damages afterwards. Id. at 481. Put differently, Appellants

imply that the jury inflated its award to Burkhart in order to compensate for the

damages reduction it expected the District Court to employ based on her comparative

fault.

         We find Schoeff instructive here as well. In Schoeff, the Florida Supreme Court

overruled Hiott “to the extent [Hiott] held that the intentional tort exception is waived

when an Engle progeny plaintiff argues comparative fault on the negligence counts.”

232 So. 3d at 306. The Court also “reject[ed] the Fourth District majority’s theory of

waiver below.” Id. The Fourth District in Schoeff had concluded that, “[b]ased on the

overall theme of Plaintiff’s representations to the jury, a reasonable jury would not

possibly understand that its comparative fault determination was going to have no

effect whatsoever on its compensatory damages award.” R.J. Reynolds Tobacco Co.

                                            34
              Case: 14-14708      Date Filed: 03/07/2018     Page: 35 of 45


v. Schoeff, 178 So. 3d 487, 494 (Fla. Dist. Ct. App. 2015). The Florida Supreme

Court rejected this theory and held that the Fourth District abused its discretion in

finding waiver. Schoeff, 232 So. 3d at 306.

       In concluding that the Fourth District abused its discretion by finding waiver,

the Florida Supreme Court pointed out that “Mrs. Schoeff’s complaint stated that she

would seek apportionment based on comparative fault on the counts for negligence

and strict liability; however not with respect to the counts constituting intentional torts

as pled in this action.” Id. (quotations omitted) (quoting Schoeff’s complaint). The

Court further observed “[t]he verdict form also listed the intentional torts after the

interrogative about apportionment, which immediately followed the negligence

claims.” Id. And, the Court observed, “the defendants in [Schoeff] agreed to the

verdict form which asked the jury to determine whether Mr. Schoeff’s smoking was a

result of each of the negligent and intentional tort offenses the Engle jury found RJR

to have committed.” Id.

       In light of Schoeff’s analysis and upon careful review of the record and trial

transcripts in this case, we are persuaded that Burkhart did not waive her right to

avoid apportionment on account of Appellants’ intentional torts. Like Mrs. Schoeff,

Burkhart stated expressly in her complaint that she sought comparative-fault

apportionment as to her negligence claims, but not as to her intentional tort claims:

       Plaintiff’s actions in using Defendant’s cigarettes as marketed and
       intended by Defendants and the frequency, duration, and manner of
       Plaintiff’s efforts to cease smoking, should be considered by the jury

                                            35
              Case: 14-14708      Date Filed: 03/07/2018     Page: 36 of 45


       along with Defendants’ acts and omissions for purposes of determining
       whether the Plaintiff’s acts or omissions rise to the level of negligence
       and constitute comparative fault, however not with respect to the counts
       constituting intentional torts as pled in this action.

(Emphasis added).

       Moreover, as in Schoeff, the jury’s comparative-fault percentage finding was

grouped in the section of the verdict form dealing with Burkhart’s negligence claim,

directly below the section where the jury indicated whether it found each defendant

liable for “negligence and strict-liability negligence.” The sections dealing with

Burkhart’s intentional tort claims appeared above the section dealing with her

negligence and strict-liability claims, on a different page and separated entirely from

the comparative-fault percentages section. And, just as in Schoeff, the verdict form

listed each cause of action separately, including the intentional torts, and “asked the

jury to determine whether [Burkhart’s] smoking was a result of each of the negligent

and intentional tort offenses the Engle jury found [Appellants] to have committed.”

Schoeff, 232 So. 3d at 306.

       Appellants argue, however, that Burkhart “repeatedly urged the jury to give her

credit for accepting partial responsibility and to compare her own negligence to

Defendants’ supposed intentional misconduct.” Our review of the trial transcript

leads us to disagree with Appellants’ characterization of Burkhart’s position during

trial. While Burkhart admitted her partial responsibility on numerous occasions

during the trial, she never did so in an effort to urge the jury to apportion her


                                            36
              Case: 14-14708     Date Filed: 03/07/2018    Page: 37 of 45


comparative fault against Appellants’ intentional conduct. During his opening

statement, Burkhart’s counsel observed that Burkhart’s

      responsibility has to be judged compared to the cigarette companies,
      against the choices they made and the choices she made. . . . [W]e
      submit to you the evidence might show that about ten percent of the
      responsibility will go on Pauline Burkhart, but that is something that you
      will have to decide when you hear all of the evidence. And, of course,
      cigarette companies, well, they remain responsible 100 percent for their
      lies.

      During closing argument, counsel told the jury that “Mrs. Burkhart bears some

responsibility . . . for her own actions.” But he never suggested that this admission of

responsibility extended beyond the scope of her negligence and strict-liability claims.

      The only instance in which Burkhart’s counsel compared her negligent conduct

with Appellants’ intentional conduct took place during his closing remarks. There,

counsel told the jury:

      Now, you’ve got a negligent pedestrian, but an intentional wrongdoing
      on the part of the driver; and under those circumstances, it seems pretty
      obvious that if you’re trying to decide—allocate responsibility, fault
      between the two, who gets the lion’s share of the fault?

It is true that this rhetorical question clearly compared Burkhart’s negligent conduct

with Appellants’ intentional conduct. However, in light of the entire body of the trial

record, we conclude that this statement cannot amount to a waiver of Burkhart’s

apportionment rights with respect to her negligence claims. Appellants’ argument—

that this statement and others made during trial, which failed to distinguish between

Burkhart’s negligent conduct and Appellants’ intentional conduct, amount to a waiver


                                           37
              Case: 14-14708      Date Filed: 03/07/2018     Page: 38 of 45


of Burkhart’s right to invoke the intentional tort exception—is the same argument

made by the Fourth District in Schoeff when it found waiver “[b]ased on the overall

theme of Plaintiff’s representations to the jury.” 178 So. 3d at 494. The Florida

Supreme Court rejected this argument in light of the plaintiff’s complaint and the

jury’s verdict form, and we reject Appellant’s claim for the same reasons.

       In addition to the aforementioned statements and jury instructions separating

Burkhart’s comparative negligence from Appellants’ intentional conduct, the District

Court made clear that apportionment only applied with respect to Burkhart’s

negligence claims. At one point during closing argument, the Court interrupted

Burkhart’s counsel to clarify to the jury “that comparative fault only applies to the

unintentional torts, that is, negligence and strict liability.” The Court further

explained:

       [Comparative fault is] not a defense to fraud or concealment, but it is a
       defense to negligence; and therefore we ask you this question, and it
       does only apply to negligence and strict liability negligence, that is, if
       she’s at fault, then what percentage is she at fault? That’s comparative
       negligence. And, again, it only applies to the latter two causes of action.

The instructions did not in any way discuss comparative fault in the context of

Burkhart’s intentional tort claims. In contrast, the instruction on negligence and strict

liability told the jury to “consider as to those claims the extent to which the Plaintiff’s

conduct was a legal cause of her own injuries.” “Such a finding,” observed the Court,

“would not prevent the Plaintiff from recovering but would reduce her recoverable

damages.”

                                            38
              Case: 14-14708      Date Filed: 03/07/2018     Page: 39 of 45


       In sum, we conclude that the District Court did not abuse its discretion in

concluding that Burkhart did not waive her right to avoid apportionment on account of

the jury’s intentional tort findings. Although counsel made remarks during closing

argument that compared her negligent conduct with Appellants’ intentional conduct,

we find that these comments did not amount to a waiver of her right to avoid

apportionment, given that her counsel and the District Court made clear to the jury at

numerous times that comparative fault should only be considered as to Burkhart’s

negligence and strict-liability claims. This is so especially in light of Schoeff.

       We further find that Schoeff forecloses Appellants’ waiver argument with

respect to the District Court’s instruction to the jury that it would reduce the

compensatory damages award according to Burkhart’s comparative fault. In Schoeff,

the Florida Supreme Court “reject[ed] the Fourth District majority’s theory of waiver

below.” 232 So. 3d at 306. That theory was the same theory Appellants proffer with

respect to the District Court’s jury instruction. The Fourth District concluded in

Schoeff that “[b]ased on the overall theme of Plaintiff’s representations to the jury, a

reasonable jury would not possibly understand that its comparative fault determination

was going to have no effect whatsoever on its compensatory damages award.”

Schoeff, 178 So. 3d at 494. The Florida Supreme Court rejected this theory and held

that the Fourth District abused its discretion in adopting it. Schoeff, 232 So. 3d at 306.

Here, Appellants argue that the District Court “distinctly instructed the jury that it

would reduce the amount of Mrs. Burkhart’s damages by her share of comparative

                                            39
                Case: 14-14708       Date Filed: 03/07/2018       Page: 40 of 45


fault, and then it failed to do so. Telling the jury that it would reduce, and then

refusing to reduce, improperly misleads the jury by definition.” This is the same

argument the Florida Supreme Court rejected in Schoeff. Accordingly, Schoeff

forecloses Appellants’ arguments with regard to the District Court’s jury instruction.

     E. Federal Preemption and Due Process Limits on the Engle Jury’s Findings

       Finally, Appellants argue that the District Court erred in denying Appellants’

motion for judgment as a matter of law, which was raised on the basis of federal law.

They argue Burkhart’s negligence and strict-liability claims are preempted by federal

law and her intentional tort claims are barred by due process. As Appellants concede,

their preemption argument is foreclosed by this Court’s en banc decision in Graham,

which held that “that federal tobacco laws do not preempt state tort claims based on

the dangerousness of all the cigarettes manufactured by the tobacco companies.” 857

F.3d at 1186.

       As to Appellants’ due process argument, 6 Graham did not decide whether

giving preclusive effect to the Engle jury’s findings of concealment and conspiracy

violates due process. See id. at 1186 (“[G]iving preclusive effect to the findings of

negligence and strict liability by the Engle jury in individual actions by Engle class

members against R.J. Reynolds and Philip Morris does not deprive these tobacco

companies of property without due process of law.” (emphasis added)). However, we



       6
        This same issue is pending before this Court in Searcy v. R.J. Reynolds Tobacco Co., No.
13-15258 (11th Cir. Sept. 12, 2013).
                                                40
              Case: 14-14708      Date Filed: 03/07/2018     Page: 41 of 45


conclude that this Court’s shared rationale in Graham and Walker controls the issue.

Both of those cases 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.

       In Walker, a consolidated appeal of two cases, juries found in favor of two

Engle progeny plaintiffs on their strict-liability claims and in favor of one of those

plaintiffs on his negligence claim, but found in favor of the tobacco companies in both

cases with respect to the plaintiffs’ fraudulent concealment and conspiracy claims.

734 F.3d at 1286. At trial, the District Courts had instructed the juries to treat the

Engle jury’s findings on the conduct elements of all of those claims as preclusive, and

told the juries they were only responsible for deciding whether the class membership,

causation, and damages elements were satisfied as to the two plaintiffs. Id.

       The District Courts had done so in light of the Florida Supreme Court’s opinion

in Philip Morris USA, Inc. v. Douglas, which held that “[n]o matter the wording of the

findings of the Phase I verdict form, the [Engle] jury considered and determined

specific matters related to the defendants’ conduct,” and therefore that Engle progeny

plaintiffs were “entitled to rely” on those findings in progeny cases in establishing

their various tort claims. 110 So. 3d 419, 433 (Fla. 2013) (quoting R.J. Reynolds

Tobacco Co. v. Martin, 53 So. 3d 1060, 1067 (Fla. Dist. Ct. App. 2010)). The tobacco

companies took issue with the District Court’s endorsement of Florida’s approach to

issue preclusion in Douglas, arguing that the Douglas Court’s grant of preclusive

                                            41
              Case: 14-14708      Date Filed: 03/07/2018     Page: 42 of 45


effect to the Engle jury’s findings as to the tobacco companies’ conduct in subsequent

progeny cases violated the Due Process Clause. Walker, 734 F.3d at 1280.

       On appeal, this Court analyzed “whether giving full faith and credit to the

decision in Engle . . . would arbitrarily deprive R.J. Reynolds of its property without

due process of law.” Id. at 1287. Although the plaintiffs in Walker lost on their

concealment and conspiracy claims at trial, the Court’s due process analysis

considered the propriety of giving preclusive effect to all of the Phase I findings

approved in Engle, which included the conduct elements of those intentional torts

(whether the tobacco companies conspired to and did conceal information on the risks

of smoking that was otherwise unavailable). See Walker, 734 F.3d at 1287 (analyzing

the constitutionality of giving preclusive effect to the “approved findings from Phase

I” without distinguishing the negligence and strict-liability claims from the

concealment and conspiracy claims); Engle, 945 So. 2d at 1255 (concluding “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),”

and “5(a) (civil-conspiracy-concealment)” (emphasis added)); Martin, 53 So. 3d at

1072 (“[T]he Phase I jury findings given preclusive effect in Engle established the

conduct elements of Mrs. Martin’s strict liability, fraudulent concealment, civil

conspiracy and negligence claims against RJR.” (emphasis added)).

       The Court analyzed the Florida Supreme Court’s action under the due process

framework and concluded the “decision of the Supreme Court of Florida to give

                                            42
              Case: 14-14708      Date Filed: 03/07/2018     Page: 43 of 45


preclusive effect to the approved findings from [Engle] did not arbitrarily deprive R.J.

Reynolds of property without due process of law.” Walker, 734 F.3d at 1287. The

Court observed that “R.J. Reynolds had a full and fair opportunity to litigate the issues

of common liability in [Engle].” Id. at 1288. R.J. Reynolds, said the Court, “had an

opportunity to contest its liability and challenge the verdict form that the trial court

submitted to the jury.” Id. Then, the Court observed, after losing at trial, R.J.

Reynolds appealed the outcome to both the Florida Supreme Court, which affirmed

the trial court, and the United States Supreme Court, which denied certiorari review.

Id. Moreover, the Court pointed out, R.J. Reynolds was never deprived of its right to

contest its liability to the individual plaintiffs in subsequent progeny cases with

respect to class membership, causation, reliance, and damages. Id. Finally, the Court

concluded that R.J. Reynolds had the opportunity to argue to the Florida Supreme

Court that it was “impossible to tell whether the [Engle] jury determined that [R.J.

Reynolds] acted wrongfully in connection with some or all of its brands of cigarettes

because the plaintiffs presented both general and brand-specific theories of liability,”

in which case giving the Engle jury’s findings preclusive effect in individual progeny

cases would be unwarranted. Id. at 1289. This last issue, the Court concluded, was a

“question of fact” that the Florida Supreme Court decided—with the benefit of

adverse argument by R.J. Reynolds. Id. Thus, R.J. Reynolds had the benefit of all the

process required to satisfy the constitutional standard.



                                            43
               Case: 14-14708     Date Filed: 03/07/2018    Page: 44 of 45


       In Graham, this Court again focused on the preclusive effect of the Engle jury’s

findings with respect to negligence and strict liability. Once again, as in Walker, the

progeny plaintiff prevailed only on her negligence and strict-liability claims.

Graham, 857 F.3d at 1180. Graham thus did not address the due process question

with regard to Graham’s concealment and conspiracy claims. As it did in Walker,

however, the Court again focused on the procedural fairness of giving preclusive

effect to the Engle jury’s findings as to the conduct elements of Graham’s claims.

The Court reiterated that “[t]he Due Process Clause requires only that the application

of principles of res judicata by a state affords the parties notice and an opportunity to

be heard so as to avoid an arbitrary deprivation of property.” Id. at 1184. Although

the Court acknowledged that the Florida Supreme Court’s decision in Engle “defined

a novel notion of res judicata,” id. at 1184, the Court observed:

       [O]ur review of the record establishes that the tobacco companies had
       notice that the Engle trial involved common evidence and theories of
       negligence and strict liability that applied to all cigarettes manufactured
       by all tobacco companies and sold to all members of the class during the
       relevant periods. The tobacco companies were given an opportunity to
       be heard on the common theories in a year-long trial followed by an
       appeal to the Florida Supreme Court and later individual trials and
       appeals on the remaining issues of proximate causation, comparative
       fault, and damages.

Id. at 1185.

       We are persuaded that this rationale, employed by this Court in Walker and

Graham, applies equally to the Florida Supreme Court’s similar grant of preclusive

weight to Engle progeny plaintiffs’ concealment and conspiracy claims. In both of

                                            44
                Case: 14-14708   Date Filed: 03/07/2018    Page: 45 of 45


those cases, the due process question depended upon an analysis of the defendant’s

opportunity to be heard in Engle. The concealment and conspiracy claims were

litigated alongside the negligence and strict-liability claims in Engle. As with the

negligence and strict-liability claims, Appellants had the opportunity to argue the

conduct elements of the concealment and conspiracy claims brought against them.

They likewise had the opportunity to protest the jury instructions given on those

claims. They enjoyed the benefit of appellate review of the jury instructions as to

those claims. And they had the opportunity to contest the Florida Supreme Court’s

factual finding in Douglas that the Engle jury’s verdict, though ambiguous,

established the individualized conduct elements of the plaintiffs’ negligence, strict-

liability, fraudulent concealment, and conspiracy claims. Finally, Appellants still

enjoyed and continue to enjoy the right to litigate the causation and reliance elements

of those intentional tort claims. As we acknowledged in Walker and Graham, the

Florida Supreme Court in Engle created a novel concept of res judicata, but that

concept does not offend the Due Process Clause.

                                           III.

       For the aforementioned reasons, we affirm the judgment of the District Court in

all respects.

       AFFIRMED.




                                           45
