         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                 R.J. REYNOLDS TOBACCO COMPANY,
                             Appellant,

                                      v.

    PHIL J. MAROTTA, as Personal Representative of the Estate of PHIL
                   FELICE MAROTTA, deceased,
                              Appellee.

                               No. 4D13-1703

                             [January 6, 2016]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jack Tuter, Judge; L.T. Case No. 07-
036723 CACE (19).

    Gordon James III, Eric L. Lundt and Robert Weill of Sedgwick LLP,
Fort Lauderdale; and Gregory G. Katsas of Jones Day, Washington, D.C.,
for appellant.

   Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal,
P.A., Miami; Philip Freidin and Randy Rosenblum of Freidin, Dobrinsky,
Brown & Rosenblum, P.A., Delray Beach; and Alex Alvarez of The Alvarez
Law Firm, Miami, for appellee.

CIKLIN, C.J.

   In this Engle progeny case,1 R.J. Reynolds Tobacco Company (“the
defendant”) appeals a final judgment entered in favor of Phil J. Marotta,
as Personal Representative of the Estate of Phil Felice Marotta (“the
plaintiff”), arguing that federal law implicitly preempts state law tort
claims of strict liability and negligence based on the sale of cigarettes and
that the use of the Engle defect finding resulted in a violation of due
process. The plaintiff cross-appeals, contending that the trial court erred
in precluding the jury from considering punitive damages on the
products liability claim. We affirm on all issues pursuant to Philip Morris

1
 See generally Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 422-25 (Fla.
2013) (providing a concise summary of Engle v. Liggett Group, Inc., 945 So. 2d
1246 (Fla. 2006), and its progeny).
USA, Inc. v. Douglas, 110 So. 3d 419, 424 (Fla. 2013), Engle v. Liggett
Group, Inc., 945 So. 2d 1246 (Fla. 2006), and R.J. Reynolds Tobacco Co.
v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013), review granted, 147 So.
3d 526 (Fla. 2014). However, we write to address the defendant’s federal
preemption argument, and to certify a question thereon to the Florida
Supreme Court as one of great public importance.

    The defendant very broadly argues that, because Congress has
expressly sanctioned the sale of cigarettes, and because the practical
effect of the Engle progeny litigation is to establish that all cigarettes are
inherently dangerous and defective, strict liability and negligence claims
are implicitly preempted by federal law allowing the sale of cigarettes.

  This court explained federal preemption in Liggett Group, Inc. v. Davis,
973 So. 2d 467 (Fla. 4th DCA 2007), as follows:

      The doctrine of conflict preemption prevents state laws
      which conflict with federal statutes from being applied.
      Conflict preemption occurs where a federal statute implicitly
      overrides state law either when the scope of a statute
      indicates that Congress intended federal law to occupy a
      field exclusively or when state law is in actual conflict with
      federal law. Conflict preemption turns on the identification
      of actual conflict and not an express statement of preemptive
      intent. If Congress gives express sanction to an activity, the
      states cannot declare that activity tortious.

Id. at 471 (internal citations and quotation marks omitted).

    “[W]hether a state law claim is preempted is dependent on the exact
nature of that particular claim.” Spain v. Brown & Williamson Tobacco
Corp., 363 F.3d 1183, 1193 (11th Cir. 2004) (citing Cipollone v. Liggett
Group, Inc., 505 U.S. 504 (1992)). In Cipollone, the Supreme Court
explained, “The central inquiry in each case is . . . whether the legal duty
that is the predicate of the common-law damages action constitutes a
‘requirement or prohibition based on smoking and health . . . imposed
under State law with respect to . . . advertising or promotion’ . . . .”
Cipollone, 505 U.S. at 523-24 (quoting 15 U.S.C. § 1334(b)). Cipollone
addresses causes of action of failure to warn, breach of express warranty,
fraudulent misrepresentation, and conspiracy to misrepresent or conceal
material facts, and a plurality of the Court “found that state laws which
required a showing that warnings on cigarettes should have been more
clearly stated, were preempted, and the state law claims based on the
manufacturer’s practices of testing or research unrelated to advertising

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were not preempted.” Davis, 973 So. 2d at 471. Accordingly, not all
tobacco claims are preempted, “only certain ones.” Id. at 472.

    Recently, in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261
(11th Cir. 2015), the Eleventh Circuit held that Engle progeny strict
liability and negligence claims are implicitly preempted by federal law.
Id. at 1280. Rather than defining a legal duty or duties imposed by
Florida case law with respect to strict liability and negligence claims
pursuant to the test propounded in Cipollone, the Eleventh Circuit
identifies “[t]hree aspects of that litigation [that] inform how we
characterize the duty it has come to impose on cigarette manufacturers”:

     First, the Engle class definition does not distinguish among
     types of smokers, types of cigarette manufacturers, or types
     of cigarettes.   It applies across the board.       The class
     definition thus creates a “brandless” cigarette, one produced
     by all defendants and smoked by all plaintiffs at all times
     throughout the class period.

     Second, the Phase I findings, given claim-preclusive effect by
     Douglas reading Engle III, concern conduct common to the
     class. . . . To avoid a due process violation, the Phase I
     findings must turn on the only common conduct presented
     at trial—that the defendants produced, and the plaintiffs
     smoked, cigarettes containing nicotine that are addictive and
     cause disease.

     Third, the Douglas causation instruction removes the need to
     litigate brand-specific defects in Engle-progeny trials
     altogether. Progeny plaintiffs must only prove how their
     addiction to cigarettes containing nicotine caused their
     injuries, not how the specific conduct of a specific defendant
     caused their injuries.

     Taken together, these three factors compel the conclusion
     that Engle strict-liability and negligence claims have imposed
     a duty on all cigarette manufacturers that they breached
     every time they placed a cigarette on the market. That result
     is inconsistent with the full purposes and objectives of
     Congress, which has sought for over fifty years to safeguard
     consumers’ right to choose whether to smoke or not to
     smoke.

Id. at 1279-80. Graham concludes:

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      [A]s a result of the interplay between the Florida Supreme
      Court’s interpretations of the Engle findings and the
      strictures of due process, the necessary basis for Graham’s
      Engle-progeny strict-liability and negligence claims is that all
      cigarettes sold during the class period were defective as a
      matter of law. This, in turn, imposed a common-law duty on
      cigarette manufacturers that they necessarily breached every
      time they placed a cigarette on the market. Such a duty
      operates, in essence, as a ban on cigarettes. Accordingly, it
      conflicts with Congress’s clear purpose and objective of
      regulating—not banning—cigarettes, thereby leaving to adult
      consumers the choice whether to smoke cigarettes or to
      abstain.    We therefore hold that Graham’s claims are
      preempted by federal law.

Id. at 1282.

    We disagree with Graham, and we respectfully note what we believe to
be flaws in its reasoning. First, Graham overstates the effect of the past
ten years of Florida tobacco case law by equating it to a ban on cigarette
sales. As one commentator notes, “tort verdicts (which are hardly
uniform), do not always arise to a state law ‘standard’; sometimes they
may only ‘motivate an optional decision’ for a defendant to behave
differently.” Douglas J. McNamara, What Were They Smoking? Why the
Graham Court was Wrong, LAW 360, May 14, 2015 (footnote omitted)
(quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005)). “The
proper [preemption] inquiry calls for an examination of the elements of
the common-law duty at issue, see Cipollone, 505 U.S. at 524, 112 S.Ct.
2608 (plurality opinion); it does not call for speculation as to whether a
jury verdict will prompt the manufacturer to take any particular action (a
question, in any event, that will depend on a variety of cost/benefit
calculations best left to the manufacturer’s accountants).” Bates, 544
U.S. at 445.2

   Additionally, Graham suggests that state and presumably local
governments cannot ban a product that Congress has chosen to regulate.
This blanket argument cannot withstand the test of experience and logic.

2 But see Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466, 2477 (2013) (holding that
state design defect claims which turn on the adequacy of a drug’s warnings are
preempted by federal law and noting that implied preemption is not “defeated
by the prospect that a manufacturer could pay the state penalty for violating a
state-law duty” (internal quotation marks and citation omitted)).

                                       4
For example, numerous so-called dry counties exist throughout the
United States today despite federal regulation of alcohol.

    Furthermore, Graham relies in part on the 1965 Federal Cigarette
Labeling and Advertising Act (“FCLAA”), codified as amended at 15 U.S.C.
§§ 1331–1341, to conclude that Congress intended to preempt states
from banning the sale of cigarettes. See Graham, 782 F.3d at 1277. In
the “Congressional declaration of policy and purpose” of the FCLAA,
Congress expressed its policy to ensure that “commerce and the national
economy may be (A) protected to the maximum extent consistent with
[the objective of adequately informing the public of the risks of smoking]
and (B) not impeded by diverse, nonuniform, and confusing cigarette
labeling and advertising regulations with respect to any relationship
between smoking and health.” 15 U.S.C. § 1331. It then imposed
regulations for the labeling and advertising of cigarettes, and banned
states from imposing any separate regulations on the same activities. We
believe this only demonstrates an intent to prevent states from imposing
differing laws on the labeling and advertising of cigarettes, which
undoubtedly would have been cumbersome for cigarette companies to
comply with, and would have in turn stymied interstate commerce of
cigarettes. It does not, however, indicate an intent to preempt states
from banning the sale of cigarettes, a state right traditionally reserved
within a state’s police powers, or from permitting state tort claims
relating to the production and sale of cigarettes. See, e.g., Richardson v.
R.J. Reynolds Tobacco Co., 578 F. Supp. 2d 1073, 1077 (E.D. Wis. 2008)
(holding that the FCLAA did not implicitly preempt plaintiff’s strict
liability claim and explaining that “Congress clearly intended to ‘protect
the national economy from the burden imposed by diverse, nonuniform,
and confusing cigarette labeling and advertising regulations,’ Cipollone,
505 U.S. at 514, 112 S.Ct. 2608, but did not clearly intend to extend
broad immunity from common law liability to cigarette manufacturers.”).

   Graham similarly relies in part on language from the 2009 Family
Smoking Prevention and Tobacco Control Act (“TCA”), 21 U.S.C. § 387,
which grants the Food and Drug Administration (“FDA”) authority to
regulate cigarettes, but specifically prohibits the FDA from banning
cigarettes. See Graham, 782 F.3d at 1278-79. However, it contains no
such prohibition to prevent the states from banning cigarettes, if they so
choose.

   In fact, although the TCA expressly preempts states from regulating
certain aspects of cigarette commerce such as labeling and



                                    5
manufacturing,3 it specifically acknowledges states’ rights to regulate
other aspects of tobacco, including a state’s right to prohibit the sale of
tobacco:

      Preservation of State and local authority.

      (a) In general

      (1) Preservation

          Except as provided in paragraph (2)(A), nothing in this
          subchapter . . . shall be construed to limit the authority of .
          . . a State or political subdivision of a State . . . to enact,
          adopt, promulgate, and enforce any law, rule, regulation,
          or other measure with respect to tobacco products that is in
          addition to, or more stringent than, requirements
          established under this subchapter, including a law, rule,
          regulation, or other measure relating to or prohibiting
          the sale, distribution, possession, exposure to, access to,
          advertising and promotion of, or use of tobacco products
          by individuals of any age . . . .

      ....

      (b) Rule of construction regarding product liability

          No provision of this subchapter relating to a tobacco
          product shall be construed to modify or otherwise affect
          any action or the liability of any person under the product
          liability law of any State.

21 U.S.C. § 387p (2009) (emphasis added). These provisions of the TCA
are curiously omitted from Graham.

   In sum, because Engle progeny cases do not support a conclusion
that strict product liability claims amount to a ban on the sale of
cigarettes, and because federal tobacco laws expressly preserve a state’s

3 “No State or political subdivision of a State may establish or continue in effect
with respect to a tobacco product any requirement which is different from, or in
addition to, any requirement under the provisions of this chapter relating to
tobacco product standards, premarket review, adulteration, misbranding,
labeling, registration, good manufacturing standards, or modified risk tobacco
products.” 21 U.S.C. § 387p(a)(2)(A).

                                        6
ability to regulate tobacco in ways other than manufacturing and
labeling while declining to “modify or otherwise affect any action or the
liability of any person under the product liability law of any State,” we
find no conflict between the applicable state and federal laws.
Accordingly, the trial court did not err in rejecting the defendant’s
argument that negligence and strict liability claims are preempted by
federal law.

   Recognizing the Eleventh Circuit’s decision to the contrary, however,
we certify this latest Engle progeny defense as a question of great public
importance:

      WHETHER FEDERAL LAW IMPLICITLY PREEMPTS STATE
      LAW TORT CLAIMS OF STRICT LIABILITY AND
      NEGLIGENCE BY ENGLE PROGENY PLAINTIFFS BASED ON
      THE SALE OF CIGARETTES.

   Affirmed; question certified.

GERBER, J., and JOHNSON, LAURA, Associate Judge, concur.

                            *       *        *

   Not final until disposition of timely filed motion for rehearing.




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