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).
2

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 
3

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:
4

[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)).
5

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 
6

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).
7

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.