Tobacco plaintiffs’ firms say Lieff Cabraser botched 11th Circuit appeal

May 7, 2015

(Reuters) – The plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, working with regular appellate counsel Samuel Issacharoff of New York University School of Law, submitted a compelling petition last week at the 11th U.S. Circuit Court of Appeals, asking the appellate court to reconsider a three-judge panel’s ruling in Graham v. R.J. Reynolds. In that April 8 decision, the 11th Circuit held that Florida smokers’ strict liability and negligence claims against tobacco companies are implicitly preempted because Congress has imposed federal regulation on cigarettes but has not banned them. Lieff Cabraser’s brief argues not only that the 11th Circuit opinion is at odds with a previous 11th Circuit decision based on the same basic facts and case law but that it’s also contrary to U.S. Supreme Court precedent.

“Preemption law begins – and usually ends – with an analysis of relevant federal statutes or regulations. But the Graham analysis erroneously infers preemptive intent from congressional silence, endorsing a sweeping view of federal authority never before recognized and without a logical stopping-point,” Lieff’s brief said. “This novel holding would work a revolution in the common law by disabling state regulation even of inherently dangerous products if Congress had ever acted in that product’s regulatory space.”

That’s an elegant description of the consequences of the 11th Circuit’s decision in Graham, and you can see why other plaintiffs’ firms that represent Florida smokers would like to support Lieff Cabraser’s bid for rehearing. But here’s the thing: According to a motion this week from three firms that want to file an amicus brief at the appeals court, Lieff messed up the original appeal, failing to brief and respond to key points that led the 11th Circuit panel to its mistaken conclusion.

The firms – the Mills Firm, Brannock & Humphries and Doffermyre Shields Canfield & Knowles – claim that they asked Graham’s lawyers to make arguments that have staved off disadvantageous preemption decisions by every other court that has considered the issue but “Graham refused (their) request.”

To understand their point, you have to know a little about the long history of smokers’ litigation in Florida. Back in the 1990s, a statewide class of smokers went to trial against the major tobacco companies and won a jury verdict holding the companies liable for selling a dangerous, addictive product. Florida appeals courts ultimately decertified the class in what became known as the Engle litigation. They also tossed a $145 billion punitive damages award. But there was still hope for individual Florida smokers: The Florida Supreme Court eventually decided in 2006 that smokers who would have been members of the Engle class could bring their own cases – and through the doctrine of res judicata, could rely upon the class action jury’s “common core” findings of liability and negligence from the class action trial.

There has been much ensuing litigation in both state and federal courts over how to interpret the Florida Supreme Court’s holdings. Along the way, the tobacco companies have raised constitutional due process and preemption challenges. Among other arguments, they claimed that state-law tort claims are preempted because cigarettes are federally regulated: Because juries in Engle progeny suits are instructed that the Engle jury already found cigarettes to be unreasonably dangerous, tobacco companies argued, these cases illegally interfere with federal regulation.

Until the 11th Circuit’s decision in the Graham case, none of the other courts that have considered the tobacco industry’s preemption argument have bought it. But the Graham panel found that because the Engle jury’s findings weren’t tethered to specific products, but rather to “a ‘brandless’ cigarette, one produced by all defendants and smoked by all plaintiffs at all times throughout the class period,” they amounted to regulation.

“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,” the 11th Circuit held. “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.”

The plaintiffs’ firms that asked this week to file an amicus brief urging reconsideration of that holding argued the 11th Circuit panel in Graham didn’t understand that the Engle jury’s liability finding did, in fact, consider products from specific companies – not some “brandless” tobacco product. And they argue that Lieff Cabraser neglected to explain that point to the 11th Circuit. “Perhaps misled by Graham’s failure to correct the defendants’ mischaracterization of these claims, the panel erred in concluding that the Engle findings at issue are ‘premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act.”

More fundamentally, according to the amicus plaintiffs’ firms, they urged Lieff Cabraser to argue that the tobacco firms have already exhausted all of their opportunities to contest the common liability findings of the Engle jury but Lieff disregarded their suggestion, “even though the res judicata argument  has led to the rejection of the defendants’ same preemption argument in every Engle progeny case tried to date in the state courts,” they wrote.

The firms, which said they have hundreds of cases pending in Florida state courts, said they “cannot sit idly by and watch such an important issue be decided in the federal courts without this argument even being considered” – especially, they said, because Lieff Cabraser’s Engle progeny cases have almost all been dismissed or settled.

I sent Elizabeth Cabraser a request for comment on the assertions in the brief by the plaintiffs’ firms. In response, Sam Issacharoff sent an email: “The Engle progeny cases move in both state and federal courts, each with their own doctrines and sources of law. The Graham petition addressed the federal court issues that govern in the 11th Circuit and the amici raise the distinct issues presented in future state court cases.” When I asked Issacharoff specifically about the shortcomings alleged by the amici, he wrote, “We made the best argument we could in support of our client.”

Plaintiffs’ lawyer Kenneth Canfield of Doffermyre referred me to John Mills of the Mills firm. Neither Mills nor Stephen Brannock returned my phone messages.

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