Big Tobacco's SCOTUS Hopes Stay Dim After Latest Engle Ruling
Tobacco companies haven't had any luck so far convincing the U.S. Supreme Court to consider whether Florida courts are violating their due process rights in the so-called "Engle progeny" smoker litigation. The industry's chances may have gotten even worse on Friday, when R.J. Reynolds Tobacco Co. suffered its latest Engle setback at the U.S. Court of Appeals for the Eleventh Circuit.
In a unanimous ruling, a three-judge Eleventh Circuit panel rejected RJR's constitutional challenge to the way Florida courts handled two cases brought by smokers and their families. The company and its lawyers at Jones Day had argued that Florida judges are violating the Fourteenth Amendment by instructing juries to accept as proven that smoking causes disease and that the tobacco companies were negligent for selling unreasonably dangerous products. But in a unanimous 26-page opinion, Circuit Judge William Pryor Jr. wrote that the Florida courts "did not arbitrarily deprive R.J. Reynolds of property without due process of law."
"We cannot say that the procedures, however novel, adopted by the Supreme Court of Florida to manage thousands of these suits under Florida law violated the federal right of R.J. Reynolds to due process of law," Pryor wrote.
Gregory Katsas of Jones Day, who argued the appeal for RJR, didn't immediately respond to our call. New York University School of Law Professor Samuel Issacharoff, who argued on behalf of the plaintiffs, told us Monday that he doesn't think "the due process argument has much weight, for the reasons stated by Judge Pryor on Friday."
"Tobacco seems to love process and more process," Issacharoff said. "Somehow, they never think they have gotten their due."
The industry has been pressing its Fourteenth Amendment defense ever since the Florida Supreme Court issued its landmark 2006 ruling in Engle v. Liggett Group Inc.. The court vacated a record $145 billion jury award and eliminated a statewide class of smokers. However, it allowed about 7,000 state and federal cases to proceed individually, and it ordered the lower courts hearing those cases to incorporate the Engle jury's findings that smoking causes diseases and that the tobacco companies were negligent for selling dangerous products.
RJR's VP and assistant general counsel Jeff Raborn said in an emailed statement that company was disappointed with the Eleventh Circuit's decision. "It is both unfair and unprecedented to impose liability unless and until some jury has actually decided all of the facts on which liability depends, and we continue to believe that it is impossible to determine whether the earlier Florida jury in fact made those decisions," Raborn said in the statement. The company plans to seek rehearing before the entire Eleventh Circuit and if necessary the U.S. Supreme Court.
As we reported last month, RJR and competitors Philip Morris USA Inc. and Liggett Group LLC have already asked the Supreme Court to hear their due process arguments in a separate Engle progeny case, Philip Morris USA Inc. et al. vs. James L. Douglas. The companies' petition was filed in August by an impressive line-up of appellate advocates, including Jones Day's Katsas, Gibson, Dunn & Crutcher's Miguel Estrada, Andrew Frey of Mayer Brown; and Paul Clement of Bancroft PLLC. Still, the odds of getting the high court to hear the Douglas case were slim even before Friday's Eleventh Circuit ruling: The justices declined in March to grant a series of cert petitions filed by tobacco companies challenging the Engle process in other cases.