### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

R.J. REYNOLDS TOBACCO COMPANY
,

Appellant,

v.

PHIL J. MAROTTA, as Personal Representative of the Estate of PHIL

FELICE MAROTTA, deceased

,

Appellee

.

No. 4D 13

- 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. Ka tsas 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 Alva rez Law Firm, Miami, for appellee.

C IKLIN
, C. J

.

In this Engle progeny case, 1 R.J. Reynolds Tobacco Company (“ the

defendant ”) appeals a final j udgment 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 i n a violation of due process. The p laintiff 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. Lig gett Group, Inc ., 945 So. 2d 1246 (Fla. 2006) , and R.J. Reynolds Tobacco Co.

v. Cicc one , 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 certi fy a question thereon to the Florida Supreme Court as one of great public importance

.

The defendant very broadly argues that, because Congress has expressly san ctioned 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

.

T his court explained federal preemption in Ligg ett 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.

Co nflict 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 ac tual 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 preempt ed is dependent on the exact

n ature 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, “T he central inquiry in each case is . . . whether the legal duty that is the predicate of the common

- la w damages action constitutes a

‘ requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or pr omotion ’ . . . .” Cipollone , 505 U.S. at 523

- 24 (quoting 15 U.S.C. § 133 4(b) )

. Cipollone addresses causes of action of failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to misrepresent or conceal material facts, an d 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 advertising3

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 o r 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 manuf acturers ” :

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 “brandl ess” 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 cond uct 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 cigarett e 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 res ult 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 c lass 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 clea r 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 Gra ham , and we respectfully note what we believe to

be flaws in its reasoning

. First, Graham overstate s 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

, L AW 360 , May 14, 2015 (footnote omitted) (quoting Bates v. Dow Agrosciences LLC , 544 U.S. 431, 445 (2005) )

. “The proper [preemption] in quiry 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 parti cular 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 suggest s 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 citati on omitted)).5

For example, numerous so

- called dry counties exist throughout the

United State s today despite federal regulation of alcohol.

Furth ermore, 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 d eclaration of p olicy and purpose ” of the FCLAA, Congress expressed its policy to ensure that “commer ce 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 r egulations with respect to any relationship between smoking and health.” 15 U.S.C. § 1331. It t hen imposed regulations for the labeling and advertising of cigarettes, and banned states from imposing any separate regulations on the same activities. We

believe t his 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 i nterstate 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 pro duction 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 rel ies in part on language from the 2009 Family Smoking Prevention and Tobacco Control Act (“TCA”), 21 U.S.C. § 387

, which grants the F ood 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 stat es from regulating certain aspects of cigarette commerce such as labeling and6

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

sub chapter . . . 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 sub chapter , including a law, rule, regulation, or othe r 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 c onstructi on regarding product liability

No provision of this sub chapter 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 provisi ons 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 st ate 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 certif

y 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

.

G ERBER
, J., and J OHNSON

, L AURA , Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.