[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14590

________________________

D.C. Docket No. 3:09-cv-13602-MMH-JBT

EARL E. GRAHAM, 

as PR of Faye Dale Graham, deceased, 

 Plaintiff - Appellee,

versus

R.J. REYNOLDS TOBACCO COMPANY, 

individually and as successor by merger to the Brown and 

Williamson Tobacco Corporation and The American Tobacco

Company, 

PHILIP MORRIS USA, INC., 

 Defendants - Appellants,

LORILLARD TOBACCO COMPANY, et al.,

 Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 8, 2015)

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Before TJOFLAT, JILL PRYOR and COX, Circuit Judges.

TJOFLAT, Circuit Judge: 

In 1996, a Florida District Court of Appeal approved certification of a classaction lawsuit originating in the Circuit Court of Dade County that encompassed 

an estimated 700,000 Floridians who brought state-law damages claims against the 

major American tobacco companies for medical conditions, including cancer, 

“caused by their addiction to cigarettes that contain nicotine.” R.J. Reynolds 

Tobacco Co. v. Engle (“Engle I”), 672 So. 2d 39, 40 (Fla. 3d Dist. Ct. App. 1996) 

(quotation marks omitted). A year-long, class-wide trial was conducted on the 

issue of liability, and “the jury rendered a verdict for the class on all counts.” 

Liggett Grp. Inc. v. Engle (“Engle II”), 853 So. 2d 434, 441 (Fla. 3d Dist. Ct. App. 

2003). The Florida Supreme Court then decertified the class but held that the jury 

findings would nonetheless have “res judicata effect” in cases thereafter brought 

against one or more of the tobacco companies by a former class member. Engle v. 

Liggett Grp. Inc. (“Engle III”), 945 So. 2d 1246, 1269 (Fla. 2006) (per curiam).

Here, a member of that now-decertified class—a so-called Engle-progeny 

plaintiff—successfully advanced strict-liability and negligence claims that trace 

their roots to the original Engle jury findings. Over the defendants’ objection, the 

District Court instructed the jury that “you must apply certain findings made by the 

Engle court and they must carry the same weight they would have if you had 

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listened to all the evidence and made those findings yourselves.” Among them: 

that the defendants “placed cigarettes on the market that were defective and 

unreasonably dangerous” and that “all of the Engle [d]efendants were negligent.” 

When the jury found in favor of the plaintiff on both claims, the defendants 

renewed their motion for a judgment as a matter of law, contending, among other 

things, that federal law preempted the jury’s imposition of tort liability as based on 

the Engle jury findings. The District Court denied the motion, and the defendants 

appealed. We must decide whether federal law preempts this suit because it stands 

as an obstacle to the purposes and objectives of Congress. 

I.

A.

Like so many of her generation, Faye Graham started each morning with a 

cup of coffee and a smoke. By day’s end, she usually burned through one-and-ahalf to two packs of cigarettes. According to her brother, “she smoked right on up 

until she wasn’t able to smoke.” Doctors diagnosed Graham with non-small cell 

lung cancer. She died on November 18, 1993, at age fifty-eight. 

Faye was survived by her husband, Earl Graham, a tugboat captain. He 

filed, as personal representative of his wife’s estate, a wrongful-death suit against 

R.J. Reynolds Tobacco Co. and Phillip Morris USA, Inc. (“R.J. Reynolds” and 

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“Phillip Morris”)

1 in the United States District Court for the Middle District of 

Florida.2 Among other things, the complaint alleged that Faye Graham was 

addicted to cigarettes manufactured by the defendants and that the addiction caused 

her death. The complaint contained seven counts, two of which are relevant to this 

appeal: a strict-liability claim, based on the fact that “the cigarettes sold and placed 

on the market by [the defendants] were defective and unreasonably dangerous,” 

and a negligence claim, based on the fact that the defendants were negligent 

 1 Graham’s first-amended complaint included as defendants Lorillard Tobacco Co. and 

Liggett Group LLC, but his claims against them were subsequently dismissed with prejudice

during the course of the litigation. R.J. Reynolds and Phillip Morris are the only two tobacco 

companies that remain involved in the lawsuit. 

2

 The Florida Wrongful Death Act provides that 

[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach 

of contract or warranty of any person, . . . and the event would have entitled the person 

injured to maintain an action and recover damages if death had not ensued, the person . . . 

that would have been liable in damages if death had not ensued shall be liable for 

damages as specified in this act notwithstanding the death of the person injured . . . .

Fla. Stat. § 768.19. The statute specifies that “[t]he action shall be brought by the decedent’s 

personal representative, who shall recover for the benefit of the decedent’s survivors and estate 

all damages . . . caused by the injury resulting in death.” Id. § 768.20. Damages recoverable 

under the Act center on the injuries suffered by the decedent’s survivors—not the decedent—and 

include the survivor’s “(1) loss of past and future support and services; (2) loss of 

companionship and protection; and (3) . . . mental pain and suffering from the date of the injury.” 

Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 769 (Fla. 1975).

Graham’s second-amended complaint also sought damages under the Florida Survival 

Statute. That statue permits a decedent’s personal representative to recover on the basis of the 

decedent’s pain and suffering, medical expenses, and loss of earnings, among other things. Fla. 

Stat. § 46.021; see also Martin, 314 So.2d at 767. The District Court held that Graham could not 

pursue an “independent” survival claim—that is, separate and apart from his wrongful-death 

claim—because he had reframed it as such “without leave of the Court and after discovery had 

closed.” Graham was permitted, however, to pursue his claim under the Survival Statute in the 

alternative. The parties stipulated before trial that Graham’s case was to be litigated as a 

wrongful-death suit. 

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“[w]ith respect to smoking and health and the manufacture, marketing and sale of 

their cigarettes.” 

B.

1.

This is no ordinary tort suit, however: Graham’s is an Engle-progeny case. 

The Engle litigation epic began in 1994, when six Floridians filed a putative classaction lawsuit seeking over $100 billion in both compensatory and punitive 

damages against the major domestic tobacco companies: Philip Morris, Inc.; R.J. 

Reynolds Tobacco Co.; Brown & Williamson Tobacco Co., individually and as 

successor by merger to The American Tobacco Company; Lorillard Tobacco Co.; 

and Liggett Group, Inc. Engle II, 853 So. 2d at 441 & n.1. Two years after the 

plaintiffs filed their initial complaint, the Third District Court of Appeal approved 

class certification on interlocutory appeal, defining the class as “all Florida citizens 

and residents” “and their survivors, who have suffered, presently suffer or who 

have died from diseases and medical conditions caused by their addiction to 

cigarettes that contain nicotine.” Engle I, 672 So. 2d at 40, 42 (alteration omitted) 

(quotation marks omitted). The class included an estimated 700,000 members. 

Engle II, 853 So. 2d at 442. 

The trial court charged with managing this class action devised a trial plan 

consisting of three phases. In Phase I, the court conducted a year-long trial on 

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“common issues relating exclusively to defendants’ conduct and the general health 

effects of smoking.” Id. at 441. At the trial’s conclusion, “the jury rendered a 

verdict for the class on all counts.” Id. 

To reach that verdict, the jury answered special interrogatories submitted by 

the Phase I trial court, at least two of which concerned the claims litigated here: 

First, did each tobacco company “place cigarettes on the market that were 

defective and unreasonably dangerous”? Walker v. R.J. Reynolds Tobacco Co.,

734 F.3d 1278, 1282 (11th Cir. 2013). And second, did each tobacco company 

“fail to exercise the degree of care which a reasonable cigarette manufacturer 

would exercise under like circumstances”? Id. (alteration omitted). The tobacco 

companies argued that these questions “did not ask for specifics about the tortious 

conduct of the tobacco companies, rendering the jury findings useless for 

application to individual plaintiffs.” Id. (alterations omitted) (quotation marks 

omitted). But the trial court overruled their objection, and the jury answered “yes” 

to both questions. Id. 

In Phase II, the same jury found the tobacco companies liable for the injuries 

of three class representatives, awarded them compensatory damages of $12.7 

million, and calculated punitive damages for the entire class to be $145 billion. 

Engle II, 853 So. 2d at 441. Before the trial reached Phase III, in which new juries 

were to have decided individual causation and damages claims for the 700,000 

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class members, id. at 442, the Third District Court of Appeal decertified the class 

and vacated the class-wide punitive-damages award, id. at 450, 456. 

The class appealed, and the Florida Supreme Court affirmed the Third 

District Court of Appeal’s decision to decertify the class and to vacate the punitivedamages award.3

 Engle III, 945 So. 2d at 1268 (explaining that “continued class 

action treatment . . . is not feasible because individualized issues such as legal 

causation, comparative fault, and damages predominate”). Following 

decertification, the court reasoned that “[c]lass members can choose to initiate 

individual damages actions and the Phase I common core findings . . . will have res 

judicata effect in those trials.” Id. at 1269. In particular, the Florida Supreme 

Court approved affording the following Phase I findings res judicata effect:

(i) [T]hat smoking cigarettes causes certain named diseases including 

COPD and lung cancer; (ii) that nicotine in cigarettes is addictive; (iii) 

that the Engle defendants placed cigarettes on the market that were 

defective and unreasonably dangerous; (iv) that the Engle defendants 

concealed or omitted material information not otherwise known or 

available knowing that the material was false or misleading or failed 

to disclose a material fact concerning the health effects or addictive 

nature of smoking cigarettes or both; (v) that the Engle defendants 

agreed to conceal or omit information regarding the health effects of 

cigarettes or their addictive nature with the intention that smokers and 

the public would rely on this information to their detriment; (vi) that 

all of the Engle defendants sold or supplied cigarettes that were 

defective; (vii) that all of the Engle defendants sold or supplied 

cigarettes that, at the time of sale or supply, did not conform to 

 3 The Florida Supreme Court also reversed the Third District Court of Appeal’s decision 

on several other grounds not relevant to our discussion. See Engle v. Liggett Grp., Inc., 945 So. 

2d 1246, 1276–77 (Fla. 2006).

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representations of fact made by said defendants; and (viii) that all of 

the Engle defendants were negligent.

Phillip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424–25 (Fla. 2013) 

(alterations omitted) (footnote omitted) (quotation marks omitted) (quoting Engle 

III, 945 So. 2d at 1276–77 (Fla. 2006)). But what, exactly, does that mean? 

2.

After the Florida Supreme Court decided Engle III, individual members of 

the defunct class scattered, making their way into both state and federal courts. 

Uncertainty about the Phase I findings abounded. In fact, three Florida District 

Courts of Appeal, joined by the United States District Court for the Middle District 

of Florida and a panel of our court, produced a four-way split as to how the Phase I 

findings should inform Engle-progeny cases in light of Engle III. The 

disagreement centered on two open questions: first, whether Engle III’s use of the 

term “res judicata” referred to issue preclusion or claim preclusion; and second, 

how juries should assess the causation element of an Engle-progeny plaintiff’s 

claim.

a.

Our court issued the first opinion on the subject. In Brown v. R.J. Reynolds 

Tobacco Co., 611 F.3d 1324 (11th Cir. 2010), we recognized that the term “res 

judicata” can refer to “claim preclusion, to issue preclusion, or to both.” Id. at 

1332. We understood Engle III as referring to issue, not claim, preclusion 

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“[b]ecause factual issues and not causes of action were decided in Phase I.” Id. at 

1333. Noting that “issue preclusion only operates to prevent the re-litigation of 

issues that were decided, or ‘actually adjudicated,’ between the parties in an earlier 

lawsuit,” id. at 1334 (citation omitted), we permitted an Engle-progeny plaintiff to 

rely on the Phase I jury findings to the extent he could show “to a reasonable 

degree of certainty that the jury made the specific factual determination that is 

being asserted,” id. at 1335. 

To do so, an Engle plaintiff would bear the burden of rummaging through 

the Phase I trial record and identifying “specific parts of it to support [his] 

position.” Id. But our court declined “to address whether [the Phase I] findings by 

themselves establish any elements of the plaintiffs’ claims,” observing only that 

such an inquiry would be “premature” “[u]ntil the scope of the factual issues 

decided in the Phase I approved findings is determined.” Id. at 1336. We directed 

the district court on remand

to determine, for example, whether the jury’s [strict-liability finding] 

establishes only that the defendants sold some cigarettes that were 

defective and unreasonably dangerous, or whether the plaintiffs have 

carried their burden of showing to a reasonable degree of certainty 

that it also establishes that all of the cigarettes that the defendants sold 

fit that description. 

Id. We eyed this task skeptically, though, noting that “plaintiffs have pointed to 

nothing in the record, and there is certainly nothing in the jury findings 

themselves” to support the conclusion that “all cigarettes the defendants sold were 

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defective and unreasonably dangerous because there is nothing to suggest that any 

type or brand of cigarette is any safer or less dangerous than any other type or 

brand.” Id. at 1335.

b.

The First District Court of Appeal disagreed. R.J. Reynolds Tobacco Co. v. 

Martin, 53 So. 3d 1060, 1067 (Fla. 1st Dist. Ct. App. 2010). The First District 

found it unnecessary to distinguish between claim and issue preclusion and held 

that an Engle plaintiff need not “trot out the class action trial transcript to prove 

applicability of the Phase I findings.” Id. As a result, “[t]he common issues, 

which the [Phase I] jury decided in favor of the class, were the ‘conduct’ elements 

of the claims asserted by the class, and not simply . . . a collection of facts relevant

to those elements.” Id. Under this reading, a plaintiff thus had no burden to prove, 

to a reasonable degree of certainty, that the Phase I jury had actually decided the 

factual issue relevant to his claim—for example, how the cigarettes that the 

plaintiff smoked were defective or negligently designed. 

The Martin court supported this conclusion by referencing the Final 

Judgment and Amended Omnibus Order entered by the Phase I trial judge in 

denying the tobacco companies’ motion for a directed verdict. Id. at 1068 (citing 

Engle v. R.J. Reynolds Tobacco Co. (“Engle F.J.”), No. 94-08273 CA-22, 2000 

WL 33534572, at *1 (Fla. Cir. Ct. Nov. 6, 2000)). The Martin court read Engle 

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F.J. to “set[] out the evidentiary foundation for the Phase I jury’s findings . . . and 

demonstrate[] that the verdict is conclusive as to the conduct elements of the 

claims.” Id.

4

 This meant that “individual Engle plaintiffs need not independently 

prove up those elements [established by the Phase I findings] or demonstrate the 

relevance of the findings to their lawsuits, assuming they assert the same claims 

raised in the class action.” Id. at 1069. In short, the plaintiffs had already proved 

the duty and breach elements of their tort claims. 

 4 As to the strict-liability claim, the trial court wrote that the evidence presented at trial 

was more than sufficient . . . to support the jury verdict that cigarettes 

manufactured and placed on the market by the defendants were defective in many 

ways including the fact that the cigarettes contained many carcinogens, 

nitrosamines, and other deleterious compounds such as carbon monoxide. That 

levels of nicotine were manipulated, sometime by utilization of ammonia to 

achieve a desired “free basing effect” of pure nicotine to the brain, and sometime 

by using a higher nicotine content tobacco called Y-1, and by other means such as

manipulation of the levels of tar and nicotine [sic]. The evidence more than 

sufficiently proved that nicotine is an addictive substance which when combined 

with other deleterious properties, made the cigarette unreasonably dangerous. 

The evidence also showed some cigarettes were manufactured with the breathing 

air holes in the filter being too close to the lips so that they were covered by the 

smoker thereby increasing the amount of the deleterious effect of smoking the 

cigarette. There was also evidence at trial that some filters being test marketed 

utilize glass fibers that could produce disease and deleterious effects if inhaled by 

a smoker.

Engle v. R.J. Reynolds Tobacco Co. (“Engle F.J.”), No. 94-08273 CA-22, 2000 WL 33534572, 

at *2 (Fla. Cir. Ct. Nov. 6, 2000). The trial court went on to discuss the jury’s findings regarding 

negligence:

The [Engle] defendants according to the testimony, well knew from their own 

research, that cigarettes were harmful to health and were carcinogenic and 

addictive. [A]llowing the sale and distribution of said product under those 

circumstances without taking reasonable measures to prevent injury, constitutes 

. . . negligence.

Id. at *4.

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As for causation, the Martin court affirmed the following jury instruction: 

The first issue for your determination is whether [the plaintiff] was a 

member of the Engle class. In order to be a member of the Engle

class, the plaintiff must prove that [he] was addicted to R.J. Reynolds 

cigarettes containing nicotine, and, if so, that his addiction was the 

legal cause of his death. Addiction is a legal cause of death if it 

directly and in a natural and continuous sequence produces or 

contributes substantially to producing such death so that it can 

reasonably be said that, but for the addiction to cigarettes containing 

nicotine, the death would not have occurred. 

Id. at 1069 (alterations omitted) (quotation marks omitted).

c.

Less than a year after Martin, the Fourth District Court of Appeal joined the 

fray. R.J. Reynolds Tobacco Co. v. Jimmie Lee Brown, 70 So. 3d 707 (Fla. 4th 

Dist. Ct. App. 2011). Jimmie Lee Brown agreed with Martin that the Phase I 

findings were due res judicata effect; that is, they established the duty and breach 

elements of the plaintiffs’ claims. Id. at 715. But it read Martin as “equating the 

legal causation instruction used on the issue of addiction with a finding of legal 

causation on the plaintiff’s strict liability and negligence claims.” Id. at 716. 

Membership in the Engle class, the court reasoned, was not enough to satisfy a 

plaintiff’s burden of proof regarding the causation elements of a strict-liability or 

negligence action. Instead, “a jury must be asked to determine (i) whether the 

defendant’s failure to exercise reasonable care was a legal cause of decedent's 

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death; and (ii) whether the defective and unreasonably dangerous cigarettes were a 

legal cause of decedent’s death.” Id. at 715. 

Pause to consider the difference between the causal inquiries proposed by 

Martin and Jimmie Lee Brown. In Martin, class membership and cause were 

essentially collapsed. Martin imposed no additional causal requirement beyond the 

class definition itself, namely, that a plaintiff’s injuries be “caused by [his] 

addiction to cigarettes that contain nicotine.” Engle I, 672 So. 2d at 40. Under 

Martin’s approach, an Engle plaintiff need only prove that his addiction to 

cigarettes caused his injury. He need not prove that the defendants’ conduct—the 

defendants’ defective product or the defendants’ negligence, for example—was a 

legal cause of that injury as well. Jimmie Lee Brown’s approach demands more: 

for an Engle plaintiff to succeed on his claim, he must causally link specific 

tortious acts by the defendants to his injury. 

d.

Enter the United States District Court for the Middle District of Florida. 

Faced with an Engle-progeny case after these three cases had been decided, the 

court first held that it was bound to give the Phase I findings the same preclusive 

effect as had Martin and Jimmie Lee Brown. Waggoner v. R.J. Reynolds Tobacco 

Co., 835 F. Supp. 2d 1244, 1278 (M.D. Fla. 2011). It then considered whether 

doing so violated due process. 

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The tobacco companies argued that, because the plaintiffs pursued a number 

of different theories during the Phase I trial, it was impossible to discern which 

theory undergirded the jury’s answers to the special interrogatories. For instance, 

when the jury said that all defendants placed cigarettes on the market that were 

defective and unreasonably dangerous, was that because the defendants sold 

cigarettes containing ammoniated tobacco? Or was it because the defendants sold 

cigarettes containing glass filter fibers? The jury could have answered “yes” to the 

first question for some defendants and “yes” to the second question for the others; 

“yes” to the first question and “no” to second; or “no” to the first question and 

“yes” to the second—the answer to the special interrogatory would have been the 

same. Under all three scenarios, the jury would have concluded that all defendants 

sold defective and unreasonably dangerous cigarettes. But no one could ever know

which defendants produced which brand or brands of cigarettes with what defect or 

defects. And that result, the tobacco companies contended, stretched any 

application of res judicata past its constitutional breaking point. Although the 

District Court candidly admitted that “the Engle progeny litigation is unlike any 

this Court has seen or is likely to see again,” id. at 1277, it rejected the defendants’

due process argument, stressing that “[s]uch a unique situation demands some 

flexibility to accommodate the due process interests of both the Defendants and the 

thousands of Engle progeny plaintiffs,” id.

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Regarding causation, the court recognized that “plaintiffs’ burden of proving 

causation is one of the primary procedural safeguards erected by the Florida 

Supreme Court in Engle III.” Id. at 1278. The court therefore adopted the 

approach used in Jimmie Lee Brown—not Martin—as “the better way to proceed 

because it requires a specific causal link between Defendants’ conduct and a 

progeny plaintiff’s injuries and damages.” Id. at 1279. 

e.

The Second District Court of Appeal offered a final way of handling Engleprogeny claims: it split the difference between Martin and Jimmie Lee Brown’s

disagreement about causation. Phillip Morris USA, Inc. v. Douglas, 83 So. 3d 

1002 (Fla. 2d Dist. Ct. App. 2012). The court adopted Martin’s approach for the 

strict-liability claim. Id. at 1005 (approving a jury instruction directing the jury to 

determine “whether smoking cigarettes manufactured and sold by one or more of 

the defendants was a legal cause of the death of Decedent”). But the court held 

that the defendants were entitled to a more specific causal instruction on the 

negligence claim, much like the instruction approved in Jimmie Lee Brown. Id. at 

1010 n.8 (faulting the trial court for failing to “ask the jury if it was the Tobacco 

Companies’ failure to exercise reasonable care that was the legal cause of [the 

decedent’s] injury”). At the same time, it certified to the Florida Supreme Court 

the constitutional question overhanging all Engle-progeny cases: whether res 

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judicata application of the Phase I findings comported with due process. Id. at 

1011. 

3.

The Florida Supreme Court resolved these conflicts in Philip Morris USA, 

Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013). The court held that affording the 

Phase I findings res judicata effect was an application of claim preclusion, not 

issue preclusion. Id. at 432. An application of issue preclusion “would [have 

effectively made] the Phase I findings regarding the Engle defendants’ conduct 

useless in individual actions.” Id. at 433. That is because “[i]ssue preclusive effect 

is not given to issues which could have, but may not have, been decided in an 

earlier lawsuit between the parties.” Brown, 611 F.3d at 1334 (collecting Florida 

cases applying issue preclusion’s “actually adjudicated” requirement). Claim 

preclusion, by contrast, extends to issues actually decided in a prior litigation, as 

well as “every other matter which might with propriety have been litigated and 

determined in that action.” Douglas, 110 So. 3d at 432 (quotation marks omitted). 

As a result, the court made clear that the Phase I findings were to be given claimpreclusive effect in subsequent trials and that the “conduct elements” of plaintiffs’ 

tort claims—duty, breach, and “general causation”5

—had already been

 5 The court defined general causation as “the connection between the Engle defendants’

addictive cigarettes and the diseases in question.” Phillip Morris USA, Inc. v. Douglas, 110 So.

3d 419, 428 (Fla. 2013). 

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conclusively established in favor of the class. Id. at 428. Although claim 

preclusion is generally understood to apply only upon issuance of a final judgment, 

e.g., Fla. Dept. of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001), Douglas

held that the Phase I jury findings produced a “final judgment” in the sense that 

they resolved all common liability issues in favor of the class, Douglas, 110 So. 3d 

at 434. 

The court went on to hold that affording the Phase I findings claimpreclusive effect did not violate due process. It reasoned that the tobacco 

companies were not entitled, under the Due Process Clause, to an application of 

issue, rather than claim, preclusion. And because claim preclusion, unlike issue 

preclusion, has no “actually decided” requirement, Douglas found that “there was 

competent substantial evidence to support the Engle defendants’ common liability 

to the class,” evidence of which the tobacco companies had notice and on which 

they had an opportunity to be heard during the Phase I trial. Id. at 433.

As for the causation issue, the court wholeheartedly embraced Martin’s 

approach. Id. at 428–29. The court rejected “the [tobacco companies’] argument 

that the Phase I findings are too general to establish . . . a causal connection 

between the Engle defendants’ conduct and injuries proven to be caused by 

addiction to smoking their cigarettes.” Id. at 429. All that remained to be litigated 

were “individual causation”—“the connection between the Engle defendant’s 

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addictive cigarettes and the injury that an individual plaintiff actually sustained”—

and damages. Id. at 428. In other words, “to prevail on either strict liability or 

negligence Engle claims, individual plaintiffs must establish (i) membership in the 

Engle class; (ii) individual causation, i.e., that addiction to smoking the Engle

defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged; 

and (iii) damages.” Id. at 430.6

4.

The most recent chapter in the Engle litigation tome was written by this 

court in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013). In 

Douglas’s aftermath, the tobacco companies brought yet another due process 

challenge to the res judicata effect of the Phase I findings. 

They began their argument by agreeing with the Florida Supreme Court’s 

admission in Douglas that an application of issue preclusion to the Phase I findings 

 6 The Florida Supreme Court described a typical Engle-progeny trial this way:

[T]o gain the benefit of the Phase I findings in the first instance, individual 

plaintiffs must prove membership in the Engle class. . . . [P]roving class 

membership often hinges on the contested issue of whether the plaintiff smoked 

cigarettes because of addiction or for some other reason (like the reasons of stress 

relief, enjoyment of cigarettes, and weight control argued below). Once class 

membership is established, individual plaintiffs use the Phase I findings to prove 

the conduct elements of the six causes of action this Court upheld in Engle;

however, for the strict liability and negligence claims at issue here, they must then 

prove individual causation and damages. If an individual plaintiff receives a 

favorable verdict, it is then subject to appellate review.

Id. at 431–32.

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would render those findings “useless.” That is because, under Florida preclusion 

law, issue-preclusive effect is only given to issues that were “actually decided” in a 

prior litigation. Because the Phase I findings could rest on any number of theories 

against any number of defendants, it is impossible to tell what was “actually 

decided.” Any attempt to do so would violate due process. See Fayerweather v. 

Ritch, 195 U.S. 276, 307, 25 S. Ct. 58, 68, 49 L. Ed. 193 (1904) (“[W]here the 

evidence is that testimony was offered at the prior trial upon several distinct issues, 

the decision of any one of which would justify the verdict or judgment, then the 

conclusion must be that the prior decision is not an adjudication upon any 

particular issue or issues, and the plea of res judicata must fail.”).

The tobacco companies charged Douglas with eliding this predicament

entirely by relying on claim preclusion instead. Claim preclusion has no “actually 

decided” requirement, so the generic nature of the Phase I findings was not the 

obstacle it would have otherwise been under an issue-preclusion rubric. But this 

line of reasoning, the tobacco companies contended, was unpersuasive. First, 

claim preclusion has traditionally been understood as a defense. Douglas’s 

application of claim preclusion, by contrast, affords plaintiffs an offensive weapon

against the tobacco companies by relieving the plaintiffs of their obligation to 

prove the duty and breach elements of their claims and by preventing the 

defendants from contesting the plaintiffs’ proof on those claims. Second, claim 

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preclusion is relevant only when there has been a final judgment. According to the 

tobacco companies, the Phase I findings were not a final judgment because, by the 

Florida Supreme Court’s own admission, the Phase I jury “did not determine 

whether the defendants were liable to anyone.” Engle III, 945 So. 2d at 1263

(quotation marks omitted). 

The tobacco companies thus concluded that under either umbrella—claim 

preclusion or issue preclusion—Douglas was soaked. In their view, the decision

marked such an “extreme” departure from the doctrine of res judicata that it

violated due process of law. See Richards v. Jefferson Cnty., 517 U.S. 793, 797, 

116 S. Ct. 1761, 1765, 135 L. Ed. 2d 76 (1996).7

 

Walker rejected these arguments. First, it explained that the descriptive label 

attached by the Florida Supreme Court to its application of res judicata carries little 

weight. How a state court describes a state-law doctrine is “no concern of ours.” 

Walker, 734 F.3d at 1289. Second, it sought to ameliorate any due process 

concerns surrounding Douglas by reframing the inquiry: “If due process requires a 

finding that an issue was actually decided, then the Supreme Court of Florida made 

the necessary finding when it explained that the approved findings from Phase I go 

to the defendants underlying conduct which is common to all class members and 

 7 For a more complete account of the arguments offered by the tobacco companies in 

Walker, see generally Consolidated Reply Brief of Appellant, Walker v. R.J. Reynolds, 734 F.3d 

1278 (11th Cir. 2013) (No. 12-13500), 2013 WL 2288547.

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will not change from case to case . . . .” Id. (citation omitted) (quotation marks 

omitted). 

We take Walker to read Douglas to interpret the Phase I findings as

involving only issues common to the class. Under this view, the brand-specific 

evidence presented to the Phase I jury matters not; that evidence is not common to 

the class. Different plaintiffs smoked different cigarettes with different defects 

over different periods of time. There is only one common issue we can be sure the 

Phase I jury “actually decided” as to the entire class: all plaintiffs smoked 

cigarettes containing nicotine that are addictive and cause disease. Id. at 1287 

(“Based on [the Florida Supreme Court’s] review of the class action trial plan and 

the jury instructions, the court concluded that the jury had been presented with 

arguments that the tobacco companies acted wrongfully toward all the plaintiffs 

and that all cigarettes that contain nicotine are addictive and produce dependence.” 

(citing Douglas, 110 So.3d at 423)). As Douglas held and as Walker reaffirmed, 

the Phase I findings transcend brand-specific defects: 

[I]n Phase I, the class action jury was not asked to find brand-specific 

defects in the Engle defendants’ cigarettes or to identify specific 

tortious actions. Instead, in instructing the jury, the Engle trial court 

explained that it was to determine “all common liability issues” for 

the class concerning “the conduct of the tobacco industry.” . . . During 

Phase I, proof submitted on strict liability included brand-specific 

defects, but it also included proof that the Engle defendants’ cigarettes 

were defective because they are addictive and cause disease.

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Douglas, 110 So. 3d at 423 (emphasis added); see also Walker, 734 F.3d at 1287. 

(“Although the proof submitted to the jury included both general and brandspecific defects, the court concluded that the jury was asked only to determine all 

common liability issues for the class, not brand specific defects.” (quotation marks 

omitted)).

It follows that the jury’s conclusions regarding strict liability and negligence 

rest on what is essentially the least common denominator: the inherent 

defectiveness of cigarettes containing nicotine and the inherent lack of ordinary 

care exercised when a defendant placed such a defective product on the market to 

be sold. Any findings more specific could not have been “actually decided” by the 

Phase I jury, and their claim-preclusive application would raise the specter of 

violating due process.

8

II.

Unsurprisingly, this background featured prominently in Earl Graham’s 

wrongful-death suit. His case went to trial on May 13, 2013. The trial spanned 

nine days. The District Court first instructed the jury that “[t]o be a member of the 

Engle class, Mr. Graham must prove by a preponderance of evidence that Mrs. 

Graham was addicted to cigarettes containing nicotine and that such addiction was 

 8 We understand Walker to discuss only Engle-progeny strict-liability and negligence 

claims. We express no opinion regarding what effect—if any—Walker or Walker’s reasoning 

may have on other Engle-progeny claims, for example, fraudulent concealment or conspiracy to 

fraudulently conceal. 

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a legal cause of her death.” If the jury found Faye Graham to be a member of the 

Engle class, the District Court then employed the framework articulated in 

Douglas to instruct the jury as follows:

Mr. Graham’s first claim is for negligence. One of the Engle findings 

was that the Defendants were negligent with respect to their 

manufacture and sale of cigarettes and you must accept that 

determination. 

Mr. Graham’s second claim is for strict liability. One of the Engle

findings was that the Defendants placed cigarettes on the market that 

were defective and unreasonably dangerous and you must accept that 

determination. 

The issue for your decision on both Mr. Graham’s negligence and 

strict liability claims is, as to each Defendant, whether smoking 

cigarettes manufactured by that Defendant was a legal cause of Mrs. 

Graham’s death.

R.J. Reynolds and Phillip Morris objected to these instructions on a number of 

grounds, including that they “invite the jury to improperly base its verdict on 

claims or theories that are in whole or in part preempted by federal law.”9

 

The jury found for Graham on both his strict-liability and negligence claims, 

awarding him $2.75 million in compensatory damages. The jury also determined

that Faye Graham was 70 percent responsible for her death, that R.J. Reynolds was 

20 percent responsible for her death, and that Phillip Morris was 10 percent 

responsible for her death. The District Court then entered judgment against R.J. 

 9 The defendants first asserted the preemption argument as the fourth affirmative defense 

in their answer to Graham’s complaint. They also raised the issue in the joint pretrial statement

and in their motion for judgment as a matter of law pursuant to Rule 50(a).

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Reynolds for $550,000 and against Phillip Morris for $275,000 in light of the 

jury’s allocation of fault. The defendants renewed their motion for judgment as a 

matter of law pursuant to Federal Rule of Civil Procedure 50(b).10 Specifically, 

they argued that federal law preempted the jury’s imposition of tort liability 

because it would frustrate the congressional objective “to foreclose the removal of 

tobacco products from the market despite the known health risks and addictive 

properties.” Relying on the doctrine of express preemption, the District Court 

denied the motion. The defendants now appeal. 

“We review the denial of a motion for judgment as a matter of law de novo.” 

Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per curiam). “Under Rule 

50, a court should render judgment as a matter of law when there is no legally 

sufficient evidentiary basis for a reasonable jury to find for that party on that 

issue.” Id.

III.

Our constitutional system contemplates “that both the National and State 

governments have elements of sovereignty the other is bound to respect.” Arizona 

v. United States, ___ U.S. ___, ___, 132 S. Ct. 2492, 2500, 183 L. Ed. 2d 351 

(2012). When state and federal law “conflict or [otherwise work] at crosspurposes,” id., the Supremacy Clause commands that federal law “shall be the 

 10 The defendants moved, in the alternative, for a new trial under Rule 59. 

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supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to 

the Contrary notwithstanding,” U.S. Const. art. VI. Simply put, state laws that 

“interfere with, or are contrary to,” federal law cannot hold sway—they “must 

yield.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L. Ed. 23 (1824). 

Federal law may preempt state law in three ways. First, Congress has the 

authority to expressly preempt state law by statute. Crosby v. Nat’l Foreign Trade 

Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 2293, 147 L. Ed. 2d 352 (2000). 

Second, even in the absence of an express preemption provision, “[t]he scheme of 

federal regulation may be so pervasive as to make reasonable the inference that 

Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator 

Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447 (1947). Third, 

federal and state law may impermissibly conflict, for example, “where it is 

impossible for a private party to comply with both state and federal law,” Crosby, 

530 U.S. at 373, 120 S. Ct. at 2294; or where the state law at issue “stands as an 

obstacle to the accomplishment and execution of the full purposes and objectives 

of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 

581 (1941).

11 It is this last subcategory of conflict preemption—obstacle 

preemption—we consider here. 

 11 In surveying this taxonomy, however, we must keep in mind that “[c]ategories and 

labels are helpful, but only to a point, and they too often tend to obfuscate instead of illuminate.” 

Fla. State Conference of the NAACP v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008); see 

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In the District Court, R.J. Reynolds and Phillip Morris advanced both 

express- and obstacle-preemption arguments in renewing their motion for a 

judgment as a matter of law. The District Court’s order denying that motion, 

however, discussed only express preemption. But it is well-established that a lack 

of express preemption “does not bar the ordinary working of conflict pre-emption 

principles.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 120 S. Ct. 1913, 

1919, 146 L. Ed. 2d 914 (2000); see also This That & The Other Gift & Tobacco, 

Inc. v. Cobb Cnty., 285 F.3d 1319, 1323 n.1 (11th Cir. 2002) (“The existence of an 

express preemption clause, however, neither bars the ordinary working of conflict 

preemption principles nor by itself precludes a finding of implied preemption.”). 

To the extent the District Court’s order suggests the contrary, the District Court

erred. On appeal, though, R.J. Reynolds and Phillip Morris appear to have 

abandoned their express-preemption theory and argue in favor of obstacle 

preemption alone. Accordingly, that is the only type of preemption we address. 

Cf. Hillman v. Maretta, ___ U.S. ___, ___, 133 S. Ct. 1943, 1949, 186 L. Ed. 2d 43 

(2013) (holding a state law invalid under obstacle preemption without discussing 

the scope of the federal statute’s express-preemption clause).

 

also English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d 65 

(1990) (“By referring to these three categories, we should not be taken to mean that they are 

rigidly distinct.”); cf. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 264 (2000) (“[T]he labels 

that one uses to describe different types of rules do not capture anything very important about 

preemption doctrine.”). 

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A.

Obstacle preemption leaves R.J. Reynolds and Phillip Morris with a tough 

row to hoe. Supreme Court precedent teaches that “a high threshold must be met if 

a state law is to be preempted for conflicting with the purposes of a federal Act.” 

Chamber of Commerce v. Whiting, ___ U.S. ___, ___, 131 S. Ct. 1968, 1985, 179 

L. Ed. 2d 1031 (2011) (quotation marks omitted). Indeed, “[i]mplied preemption 

analysis does not justify a freewheeling judicial inquiry into whether a state statute 

is in tension with federal objectives.” Id. (quotation marks omitted). That is 

because “such an endeavor would undercut the principle that it is Congress rather 

than the courts that preempts state law.” Id. (quotation marks omitted). 

In addition to overcoming this “high threshold,” R.J. Reynolds and Phillip

Morris must also confront the presumption against preemption—namely, that “we 

start with the assumption that the historic police powers of the States were not to 

be superseded by [federal law] unless that was the clear and manifest purpose of 

Congress.” Rice, 331 U.S. at 230, 67 S. Ct. at 1152.12 The presumption is a 

“cornerstone[] of our pre-emption jurisprudence.”13 Wyeth v. Levine, 555 U.S. 

 12 It is unclear whether Whiting applies the presumption against preemption, albeit sub 

silentio, or whether it imposes an additional hurdle, above and beyond the presumption, to 

making a successful obstacle-preemption argument. 

13 The presumption against preemption has been hotly debated, particularly when applied 

to issues of statutory interpretation in cases involving express preemption. Compare, e.g.,

PLIVA, Inc. v. Mensing, ___ U.S. ___, ___, 131 S. Ct. 2567, 2580, 180 L. Ed. 2d 580 (2011) 

(Thomas, J.) (plurality opinion) (“[C]ourts should not strain to find ways to reconcile federal law 

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555, 565, 129 S. Ct. 1187, 1194, 173 L. Ed. 2d 51 (2009). And its logic carries

particular force where, as here, “federal law is said to bar state action in fields of 

traditional state regulation.” N.Y. State Conference of Blue Cross & Blue Shield 

Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S. Ct. 1671, 1676, 131 L. Ed. 

2d 695 (1995). We must recognize, therefore, “the historic primacy of state 

regulation of matters of health and safety,” which can be enforced through state 

statutes and state tort law alike.14 Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 

S. Ct. 2240, 2250, 135 L. Ed. 2d 700 (1996). Given the “great latitude” that states 

possess “under their police powers to legislate as to the protection of the lives, 

limbs, health, comfort, and quiet of all persons,” id. at 475, 116 S. Ct. at 2245 

 

with seemingly conflicting state law.”), with id. at ___, 131 S. Ct. at 2591 (Sotomayor, J., 

dissenting) (“In the context of express pre-emption, we read federal statutes whenever possible 

not to pre-empt state law.”). In the absence of an express preemption provision, however, the 

presumption appears to rest on less contested ground, at least for the time being. Wyeth v. 

Levine, 555 U.S. 555, 589 n.2, 129 S. Ct. 1187, 1208, 173 L. Ed. 2d 51 (2009) (Thomas, J., 

concurring) (“Because it is evident from the text of the relevant federal statutes and regulations 

themselves that the state-law judgment below is not pre-empted, it is not necessary to decide 

whether, or to what extent, the presumption should apply in a case such as this one, where 

Congress has not enacted an express-pre-emption clause.”). That said, the presumption has a 

tendency to make sporadic appearances in the Court’s preemption jurisprudence; among the five 

preemption cases decided during the 2011 Term, for example, not one discussed the 

presumption. Ernest A. Young, “The Ordinary Diet of the Law”: The Presumption Against 

Preemption in the Roberts Court, 2011 Sup. Ct. Rev. 253, 331. 

14 “[C]ommon-law damages actions . . . are premised on the existence of a legal duty . . . . 

[I]t is the essence of the common law to enforce duties that are either affirmative requirements or 

negative prohibitions. . . . At least since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 

L. Ed. 1188 (1938), we have recognized the phrase ‘state law’ to include common law as well as 

statutes and regulations.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 522, 112 S. Ct. 2608, 

2620, 120 L. Ed. 2d 407 (1992) (plurality opinion) (interpreting an express preemption provision 

contained in the Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, § 5(b), 84 

Stat. 87 (codified at 15 U.S.C. § 1334(b)). 

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(quotation marks omitted), we will not ascribe to Congress the intent “cavalierly

[to] pre-empt state-law causes of action,” id. at 485, 116 S. Ct. at 2250. To do 

otherwise would ignore altogether that “[t]he allocation of powers in our federal 

system preserves the integrity, dignity, and residual sovereignty of the States.” 

Bond v. United States, ___ U.S. ___, ___, 131 S. Ct. 2355, 2364, 180 L. Ed. 2d 269 

(2011). 

The lodestar of any preemption inquiry is congressional intent. Retail 

Clerks Int’l Ass’n v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L. Ed. 

2d 179 (1963). In assessing the extent to which state law “stands as an obstacle to 

the accomplishment and execution of the full purposes and objectives of 

Congress,” Hines, 312 U.S. at 67, 61 S. Ct. at 404, “[w]hat [constitutes] a 

sufficient obstacle is a matter of judgment, to be informed by examining the 

federal statute as a whole and identifying its purpose and intended effects,”

Crosby, 530 U.S. at 373, 120 S. Ct. at 2294. To begin, then, “we must first 

ascertain the nature of the federal interest.” Hillman, ___ U.S. at ___, 133 S. Ct. at 

1950.

B.

By our count, Congress has enacted at least seven statutes regulating tobacco 

products in the past fifty years. We examine their text and structure, which 

provide the most reliable indicia of what Congress has resolved itself to achieve. 

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CTS Corp. v. Waldburger, ___ U.S. ___, ___ 134 S. Ct. 2175, 2185, 189 L. Ed. 2d 

62 (2014). This amounts to the “classic judicial task of reconciling many laws 

enacted over time, and getting them to ‘make sense’ in combination.” United 

States v. Fausto, 484 U.S. 439, 453, 108 S. Ct. 668, 676–77, 98 L. Ed. 2d 830 

(1988).

We start with first principles. Congress possesses the constitutional 

authority to ban cigarettes. See U.S. Const., art. I, § 8, cl. 3. It has never done so. 

This, despite an ever-growing body of research documenting the health risks 

associated with smoking. In 1964, for example, the Surgeon General issued a 

report concluding that “[c]igarette smoking is a health hazard of sufficient 

importance in the United States to warrant appropriate remedial action.” Advisory 

Comm. to the Surgeon Gen. of the Public Health Serv., U.S. Dep’t of Health, 

Educ., & Welfare, Smoking and Health 33 (1964), available at 

http://profiles.nlm.nih.gov/ps/access/NNBBMQ.pdf. The report warned “that 

cigarette smoking contributes substantially to mortality from certain specific 

diseases and to the overall death rate.” Id. at 31. 

These findings spurred legislative action. Congress’s first attempt to address 

cigarette smoking and its consequences came in the Federal Cigarette Labeling and 

Advertising Act (the “Labeling Act”), Pub. L. No. 89-92, 79 Stat. 282 (1965) 

(codified as amended at 15 U.S.C. §§ 1331–1341). The Labeling Act aimed to 

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“establish a comprehensive Federal program to deal with cigarette labeling and 

advertising.” Id. § 2. Central to this comprehensive program was a requirement 

that all cigarette packages display the warning statement, “Caution: Cigarette 

Smoking May Be Hazardous to Your Health.” Id. § 4. 

For our purposes, the Labeling Act is instructive because it encapsulates the 

competing interests Congress has sought to reconcile when regulating cigarettes. 

On the one hand, Congress has recognized that smoking can cause serious physical 

harm, even death. On the other hand, Congress has also acknowledged the 

important role tobacco production and manufacturing plays in the national 

economy. Congress has carefully calibrated these policy considerations by 

promoting full disclosure to consumers about the attendant risks tobacco products 

carry, thereby permitting free but informed choice. The plain language of the 

Labeling Act summarizes well this approach: 

It is the policy of the Congress . . . [that] 

(1) the public may be adequately informed that cigarette

smoking may be hazardous to health by inclusion of a warning

to that effect on each package of cigarettes; and 

(2) commerce and the national economy may be (A) protected

to the maximum extent consistent with this declared policy and

(B) not impeded by diverse, nonuniform, and confusing

cigarette labeling and advertising regulations . . . .

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Id. § 2.15 

Since the Labeling Act’s passage, Congress’s basic goals have remained

largely unchanged. For example, Congress has tinkered with the text of the 

warning labels affixed to cigarette packages in an effort to arm consumers with 

more complete and accurate information. Public Health Cigarette Smoking Act of 

1969, Pub. L. No. 91-222, § 4, 84 Stat. 87 (codified as amended at 15 U.S.C. § 

1333); Comprehensive Smoking Education Act, Pub. L. No. 98-474, § 4, 98 Stat. 

2200 (1984) (codified at 15 U.S.C. § 1333). To promote transparency, Congress 

has required the Secretary of Health and Human Services to issue a report to 

Congress every three years regarding the “addictive property of tobacco.” Alcohol 

and Drug Abuse Amendments of 1983, Pub. L. No. 98-24, 97 Stat. 175. Congress 

has stepped in to regulate smokeless tobacco products, too. Comprehensive 

Smokeless Tobacco Health Education Act of 1986, Pub. L. No. 99-252, 100 Stat. 

 15 Senator Neuberger (D-OR), who introduced a version of the Labeling Act in the 

Senate, put it this way: 

I do not carry around with me a pair of scissors to cut off burning cigarettes in the 

mouths of those I meet. I have never attacked a cigarette stand with a hatchet. I 

have never equated smoking with sin. Abstention from tobacco is not a condition 

of employment with my staff. I have never introduced legislation nor have I ever 

delivered a speech calling for the abolition of cigarettes. . . . 

What have I advocated, then? Briefly, I believe there are four general sectors of 

Government activity in which remedial action is justified: first, education of both 

the presmoking adolescent and the adult smoker; second, expanded research into 

the technology of safer smoking; third, reform of cigarette advertising and 

promotion; and fourth, cautionary and informative labeling of cigarette packages.

111 Cong. Rec. S13899 (daily ed. June 16, 1965) (statement of S. Neuberger). 

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30. And Congress has even incentivized states to prohibit the sale of tobacco 

products to minors by conditioning block grants on the creation of programs “to 

discourage the use of . . . tobacco products by individuals to whom it is unlawful to 

sell or distribute such . . . products.” Alcohol, Drug Abuse, and Mental Health 

Administration Reorganization Act, Pub. L. No. 102-321, § 202, 106 Stat. 323 

(1992) (codified at 42 U.S.C. § 300x-22).

All this, but no ban on the sale of cigarettes to adult consumers. No ban 

even though over the last fifty years a scientific consensus has emerged that 

smoking can kill. The Surgeon General has reaffirmed this, at least twice. Office 

of the Surgeon Gen., U.S. Dep’t of Health & Human Servs., The Health 

Consequences of Smoking: Nicotine Addiction (1988), available at 

http://profiles.nlm.nih.gov/ps/access/NNBBZD.pdf; Office of the Surgeon Gen., 

U.S. Dep’t of Health & Human Servs., The Health Consequences of Smoking—50 

Years of Progress (2014), available at 

http://www.surgeongeneral.gov/library/reports/50-years-of-progress/fullreport.pdf. The Environmental Protection Agency has classified secondhand 

smoke as a known human carcinogen. Office of Health & Envtl. Assessment, 

Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders

4 (1992), available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=2835. 

The Food and Drug Administration (the “FDA”) has published research indicating 

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that “[t]he pharmacological processes that cause [nicotine addiction] are similar to 

those that cause addiction to heroin and cocaine.” FDA, Jurisdictional 

Determination, 61 Fed. Reg. 44619, 44631 (Aug. 28, 1996). These are, of course,

but a few examples. 

In short, Congress has known about the dangers of cigarettes for many years. 

Congress has regulated cigarettes for many years. But it has never banned them. 

Indeed, regulation of cigarettes rests on the assumption that they will still be sold

and that consumers will maintain a “right to choose to smoke or not to smoke.” 

H.R. Rep. No. 89-449 (1965), reprinted in 1965 U.S.C.C.A.N. 2350, 2352. 

The Supreme Court has so concluded, holding that the FDA lacked 

jurisdiction to regulate cigarettes because it would have otherwise been required by 

statute to prohibit their sale. FDA v. Brown & Williamson Tobacco Co., 529 U.S. 

120, 161, 120 S. Ct. 1291, 1315–16, 146 L. Ed. 2d 121 (2000). This result, the 

Court determined, would have contravened the intent of Congress, given that “the 

collective premise of these statutes is that cigarettes and smokeless tobacco will 

continue to be sold in the United States.” Id. at 139, 120 S. Ct. at 1304. 

And although Congress has overruled this decision, granting the FDA

regulatory authority over cigarettes in 2009, Congress nonetheless stated that the 

FDA “is prohibited from” “banning all cigarettes” or “requiring the reduction of 

nicotine yields of a tobacco product to zero.” Family Smoking Prevention and 

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Tobacco Control Act (the “TCA”), Pub. L. No. 111-31, § 907(d)(3)(A)–(B), 123 

Stat. 1776 (2009) (codified at 21 U.S.C. § 387g). To be sure, the TCA does not 

“affect any action pending in Federal . . . court” prior to its enactment—including 

this one. Id. § 4(a)(2); see Engle III, 945 So. 2d at 1277 (noting that Engle progeny 

cases must be filed within one year of the issuance of the case’s mandate). It 

merely makes textually explicit what was already evident by negative implication: 

Congress has never intended to prohibit consumers from purchasing cigarettes. To 

the contrary, it has designed “a distinct regulatory scheme” to govern the product’s 

advertising, labelling, and—most importantly—sale. Brown & Williamson, 529 

U.S. at 155, 120 S. Ct. at 1312. 

C.

We now turn to how these federal objectives interact with state law. Federal 

law can expressly or impliedly preempt a state tort suit. E.g., Geier v. Am. Honda 

Motor Co., 529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000) (finding 

implied preemption of state tort suit); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 

112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (plurality opinion) (finding express 

preemption of certain state tort suits); see generally Williamson v. Mazda Motor of 

Am., Inc., ___ U.S. ___, ___, 131 S. Ct. 1131, 1136, 179 L. Ed. 2d 75 (2011) 

(collecting cases). A tort is “a breach of a duty that the law imposes on persons 

who stand in a particular relation to one another.” Black’s Law Dictionary 1626

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(9th ed. 2009). As such, successful tort actions “are premised on the existence of a 

legal duty.” Cipollone, 505 U.S. at 522, 112 S. Ct. at 2620 (plurality opinion); see 

also Geier, 529 U.S. at 881, 120 S. Ct. at 1925 (characterizing a successful tort 

action as “a state law—i.e., a rule of state tort law imposing . . . a duty”). Strictliability and negligence claims like those at issue here are no exception. Mutual 

Pharm. Co. v. Bartlett, ___ U.S. ___, ___, 133 S. Ct. 2466, 2474 n.1, 186 L. Ed. 2d 

607 (2013) (“[M]ost common-law causes of action for negligence and strict 

liability . . . exist . . . to . . . impose affirmative duties.”); Samuel Friedland Family 

Enters. v. Amoroso, 630 So. 2d 1067, 1068 n.3 (Fla. 1994) (recognizing, in the 

strict-liability context, that “[o]ne who sells any product in a defective condition 

unreasonably dangerous to the user or consumer . . . is subject to liability for 

physical harm thereby caused” even though “the seller has exercised all possible 

care in the preparation and sale of his product” (quoting Restatement (Second) of 

Torts § 402A)); Curd v. Mosaic Fertilizer LLC, 39 So. 3d 1216, 1227 (Fla. 2010) 

(noting that a negligence claim requires identification of “[a] duty, or obligation, 

recognized by the law, requiring the [defendant] to conform to a certain standard of 

conduct, for the protection of others against unreasonable risks” (citation omitted) 

(second alteration in original)).

These duties, moreover, can stand as just as much of an obstacle to the 

purposes and objectives of Congress as a state statute or administrative regulation. 

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E.g., Williamson, ___ U.S. at ___, 131 S. Ct. at 1136; Geier, 529 U.S. at 886, 120 

S. Ct. at 1928. That is because, like any statute, common-law duties amount to

“either affirmative requirements or negative prohibitions.” Cipollone, 505 U.S. at 

522, 112 S. Ct. at 2620 (plurality opinion). Our job, then, is to determine whether 

the legal duties underpinning Graham’s strict-liability and negligence claims

impermissibly stand as an obstacle to the achievement of federal objectives—here, 

regulating, but not banning, the sale of cigarettes. To accomplish this task, we 

must return to Engle. 

Three aspects of that litigation 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. This approach reinforces 

the brandless nature of the Engle litigation because it is impossible to determine

which pieces of brand-specific evidence the Phase I jury found relevant in reaching 

the conclusion that all defendants had breached duties owed to the class. To avoid 

a due process violation, the Phase I findings must turn on the only common 

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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 brandspecific 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 strictliability 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. 

1.

First, Engle is a class-action lawsuit filed against the major American 

tobacco manufacturers on behalf of all Florida smokers. Class members were not 

sorted by the brands they smoked, the nature of their smoking habits, or the 

injuries they alleged. The class included any Floridian who suffered injuries 

caused by his or her addiction to cigarettes that contained nicotine. The result: the 

Engle Phase I trial plan “enabled the plaintiffs to try fifty years of alleged 

misconduct that they never would have been able to introduce in an individual 

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trial, which was untethered to any individual plaintiff” and thereby “created a 

composite plaintiff who smoked every single brand of cigarettes, saw every single 

advertisement, read every single piece of paper that the tobacco industries ever 

created or distributed, and knew about every single allegedly fraudulent act.” 

Engle II, 853 So. 2d at 467 n.48.

This class was certified despite Florida Rule of Civil Procedure

1.220(b)(3)’s instruction that 

[a] claim or defense may be maintained on behalf of a class if the 

court concludes that . . . questions of law or fact common to . . . the 

claim or defense of each member of the class predominate over any 

question of law or fact affecting only individual members of the class, 

and class representation is superior to other available methods for the 

fair and efficient adjudication of the controversy. 

“Florida Rule of Civil Procedure 1.220, which establishes the guidelines for class 

actions, was modeled after Federal Rule of Civil Procedure 23.” Johnson v. 

Plantation Gen. Hosp. Ltd. P’ship, 641 So. 2d 58, 59 (Fla. 1994). 

It is therefore noteworthy that at least two federal circuit courts have refused 

to certify similar classes, which attempted to aggregate the claims of injured 

smokers against the major tobacco companies. Barnes v. Am. Tobacco Co., 161 

F.3d 127, 143 (3d Cir. 1998) (upholding the denial of certification for a Rule 

23(b)(2) medical-monitoring class, in part on the ground that “plaintiffs were 

‘exposed to different . . . products, for different amounts of time, in different ways, 

and over different periods’” (alteration in original) (quoting Amchem Prods., Inc. v. 

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Windsor, 521 U.S. 591, 624, 117 S. Ct. 2231, 2250, 138 L. Ed. 2d 689 (1997))); 

Castano v. Am. Tobacco Co., 84 F.3d 734, 752 (5th Cir. 1996) (reversing as an 

abuse of discretion the District Court’s decision to certify a Rule 23(b)(3) class and 

observing that “[t]he collective wisdom of individual juries is necessary before this 

court commits the fate of an entire industry or, indeed, the fate of a class of 

millions, to a single jury”). 

And at least one Justice on the Florida Supreme Court has taken a similar 

view. Engle III, 945 So. 2d at 1282 (Wells, J., concurring in part and dissenting in 

part) (“The bottom line is that this was not properly a class action.”). 

2.

Second, the Phase I jury findings do not apply to specific brands. According 

to the Florida Supreme Court, those findings—which have claim-preclusive effect 

on trials conducted after the class decertification—involve the “conduct of the 

tobacco industry” as a whole. Phillip Morris USA, Inc. v. Douglas, 110 So. 3d 

419, 423 (Fla. 2013); see also Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 

1278, 1285 (11th Cir. 2013) (“[T]he jury was asked only to determine all common 

liability issues for the class, not brand specific defects.” (quotation marks 

omitted)). To be sure, the Phase I jury considered brand-specific evidence during 

the trial. See supra note 4 (quoting Engle v. R.J. Reynolds Tobacco Co. (“Engle 

F.J.”), 2000 WL 33534572 (Fla. Cir. Ct. Nov. 6, 2000)). But the specific findings 

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cited in Engle F.J. are symptomatic of the central problem presented by this 

appeal: although the Phase I jury reviewed a litany of evidence regarding various 

brand-specific defects, the Phase I interrogatories shed no light on which defects 

the jury found relevant in determining how each defendant breached a duty to 

refrain from selling a defective product or from failing to exercise ordinary care. 

We are left to rely on the interpretations of the Delphic Phase I findings 

offered in Douglas and Walker. Both cases have recognized that at this point, 

sitting over a decade’s remove from the Phase I verdict, it is impossible to discern 

the extent to which the Phase I findings specifically match up with each of the 

Engle defendants. See Douglas, 110 So. 3d at 433; Walker, 734 F.3d at 1287. The 

Florida Supreme Court interpreted Florida law in a way that eliminates this 

problem, both by using claim preclusion to afford the Phase I findings res judicata 

effect and by interpreting the Phase I findings to address only “common liability 

issues.” Douglas, 110 So. 3d at 423. Our court has sanctioned the 

constitutionality of that approach, but only to the extent the Phase I findings go to 

conduct common to the class. Walker, 734 F.3d at 1289.

Scoured of any evidence regarding brand-specific defects, the Phase I 

findings regarding strict-liability and negligence amount to the bare assertion that 

cigarettes are inherently defective—and cigarette manufacturers inherently 

negligent—because cigarettes are addictive and cause disease. And because “[o]ne 

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who sells any product in a defective condition unreasonably dangerous to the user 

or consumer . . . is subject to liability for physical harm thereby caused,” Amoroso, 

630 So. 2d at 1068 n.3 (quoting Restatement (Second) of Torts § 402A), and 

because one must “conform to a certain standard of conduct, for the protection of 

others against unreasonable risks,” Curd, 39 So. 3d at 1227, the Engle defendants 

breached a state-law duty every time they placed a cigarette on the market to be 

sold. 

3.

Third, the Douglas causation instruction does not necessarily require brandspecific defects to ever be litigated in Engle-progeny trials. All plaintiffs need 

prove is class membership, damages, and what the Florida Supreme Court has 

deemed “individual causation,” that is, proof that addiction to smoking an Engle

defendant’s cigarettes was a legal cause of the injuries alleged. Douglas, 110 So.

3d at 430. Plaintiffs do not need to casually link specific conduct by a defendant—

how a defendant was negligent, for example—to succeed. But see Waggoner v. 

R.J. Reynolds Tobacco Co., 835 F. Supp. 2d 1244, 1278 (M.D. Fla. 2011) 

(“[P]laintiffs’ burden of proving causation is one of the primary procedural 

safeguards erected by the Florida Supreme Court in Engle III.”). According to the 

Florida Supreme Court, this issue was already decided in Phase I because

cigarettes containing nicotine are addictive and cause disease. E.g., Douglas, 110 

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So.3d at 429 (“[T]he Second District properly applied Engle when holding that 

legal causation for the strict liability claim was established by proving that 

addiction to the Engle defendants’ cigarettes containing nicotine was a legal cause 

of the injuries alleged.”). 

In sum, brand-specific defects were not determined during Phase I; they do 

not need to be determined during Engle-progeny trials, either. And the class 

definition is of no help, because it does not distinguish among plaintiffs who 

smoked different brands at different times—all addicted smokers are the same; so, 

too, are all cigarettes. Thus, as 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.

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D.

It is no answer to characterize Graham’s tort suit as a cost of doing business 

instead of a ban. Although R.J. Reynolds and Phillip Morris can pay damages and

continue selling cigarettes, “pre-emption cases do not ordinarily turn on such

compliance-related considerations as whether a private party in practice would 

ignore state legal obligations—paying, say, a fine instead—or how likely it is that 

state law actually would be enforced.” Geier, 529 U.S. at 882, 120 S. Ct. at 1926; 

cf. Cipollone, 505 U.S. at 521, 112 S. Ct. at 2620 (plurality opinion) (noting that 

state regulation “can be as effectively exerted through an award of damages as 

through some form of preventive relief. The obligation to pay compensation can 

be, indeed is designed to be, a potent method of governing conduct and controlling 

policy.” (quotation marks omitted)). 

Admittedly, how compliance-related considerations should factor into 

preemption analysis—if at all—remains something of open question. “The Court 

has on occasion suggested that tort law may be somewhat different, and that 

related considerations—for example, the ability to pay damages instead of 

modifying one’s behavior—may be relevant for pre-emption purposes.” Geier, 

529 U.S. at 882, 120 S. Ct. at 1926.16 We do not write on a blank slate, however. 

 16 For this proposition, Geier relies on a trio of cases relating to field preemption and the 

Atomic Energy Act, which are far removed, both factually and legally, from this appeal. English 

v. Gen. Elec. Co., 496 U.S. 72, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990); Goodyear Atomic 

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Justice Blackmun’s opinion for himself and two other Justices in Cipollone

forcefully contended that tort law should be treated differently from positive 

enactments for preemption purposes. 505 U.S. at 536–37, 112 S. Ct. at 2627–28 

(Blackmun, J., concurring in part and dissenting in part) (“The effect of tort law on 

a manufacturer’s behavior is necessarily indirect. . . . The level of choice that a 

defendant retains in shaping its own behavior distinguishes the indirect regulatory 

effect of the common law from positive enactments such as statutes and 

administrative regulations.”). But he lost that argument: his opinion did not 

command a majority. And critically, his logic was called into question by a 

majority of the Court in Geier. 529 U.S. at 882, 120 S. Ct. at 1926 (“[T]his 

Court’s pre-emption cases ordinarily assume compliance with the state-law duty in 

question.”). Absent more specific guidance from the Supreme Court, we must 

follow Geier’s lead in assuming that R.J. Reynolds and Phillip Morris will comply 

with whatever state-law duties Florida may impose. 

Nor is it convincing to argue that Congress, well aware of state tort litigation 

against the tobacco companies, would not have intended to preempt state-law 

claims similar to the two at issue here. See Wyeth v. Levine, 555 U.S. 555, 574–75, 

 

Corp. v. Miller, 486 U.S. 174, 108 S. Ct. 1704, 100 L. Ed. 2d 158 (1988); Silkwood v. KerrMcGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984). As such, these three cases 

are far too thin a reed on which to base our reasoning. And in any event, Geier itself clearly 

places a thumb on the scale in favor of assuming compliance with the duties imposed through a 

successful state tort suit. 529 U.S. at 882, 120 S. Ct. at 1926. 

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129 S. Ct. 1187, 1200, 173 L. Ed. 2d 51 (2009) (“If Congress thought state-law 

suits posed an obstacle to its objectives, it surely would have enacted an express 

pre-emption provision . . . . Its silence on the issue, coupled with its certain 

awareness of the prevalence of state tort litigation, is powerful evidence that 

Congress did not intend [to preempt state tort suits.]”); cf. Bonito Boats, Inc. v. 

Thunder Craft Boats, Inc., 489 U.S. 141, 166–67, 109 S. Ct. 971, 986, 103 L. Ed. 

2d 118 (1989). That proposition may be true at a high level of generality. But as 

we have explained in great detail, Graham’s is not a run-of-the-mill tort suit. If it 

were, our analysis would be radically different. Make no mistake: we should not 

be taken to mean that we believe Congress intended to insulate tobacco companies 

from all state tort liability. To the contrary, there is nothing in the text, structure, 

or legislative history of the federal statutes we have examined to support such a 

far-reaching proposition. See Richardson v. R.J. Reynolds Co., 578 F. Supp. 2d 

1073 (E.D. Wis. 2008). 

We merely conclude that, having surveyed both federal and state law, it is 

clear that Congress would have intended to preempt Graham’s strict-liability and 

negligence claims, rooted as they are in the Engle jury findings, which have been 

interpreted by the Florida courts to possess unprecedented breadth. We express no 

opinion as to other state-law suits that may rest on significantly narrower theories 

of liability than the Engle litigation. 

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E.

Graham’s remaining arguments against preemption are unpersuasive. 

First, Graham argues that his claims are not expressly preempted. Fair 

enough. But that is of little import. A lack of express preemption “does not bar 

the ordinary working of conflict pre-emption principles.” Geier, 529 U.S. at 869, 

120 S. Ct. at 1919. 

Second, Graham contends that his suit is otherwise shielded by the saving 

clause in the Comprehensive Smokeless Tobacco Health Education Act of 1986, 

Pub. L. No. 99-252, § 7, 100 Stat. 30 (codified at 15 U.S.C. § 4406). This 

argument suffers from a similar misunderstanding of basic preemption doctrine: a 

“saving clause (like the express pre-emption provision) does not bar the ordinary 

working of conflict pre-emption principles.” Geier, 529 U.S. at 869, 120 S. Ct. at 

1919.

Third, Graham believes that our court’s decision in Spain v. Brown & 

Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir. 2004), controls the outcome 

of this case. Hardly. Spain concerns express preemption of Alabama state tort 

claims. It has nothing to do with either obstacle preemption or Florida law, much 

less Engle-progeny claims. 

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Fourth, Graham says that the presumption against preemption should tilt the 

balance of this case in his favor. The presumption provides him no refuge. We 

are, of course, mindful that “the historic police powers of the States [are] not to be 

superseded by [federal law] unless that was the clear and manifest purpose of 

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 

1152, 91 L. Ed. 1447 (1947); see also supra part III.A. But the presumption is just 

that—a presumption, to be applied as “tiebreaker” of sorts when the case is close. 

Here, we have no difficulty concluding that the clear and manifest purpose of 

Congress has been to keep cigarettes legally available for adult consumers despite 

known health risks. The Florida courts have come to interpret the Engle Phase I 

jury findings to demand an outcome Congress has sought to avoid, namely, the 

imposition of a duty that was breached every time a cigarette manufacturer placed

a cigarette on the market to be sold—the functional equivalent of a flat ban. 

Fifth, Graham insists that by preempting his strict-liability and negligence 

claims, we will leave Engle-progeny plaintiffs a right without a remedy. Not true. 

To begin, we express no opinion as to the validity of other Engle claims, for 

example, fraudulent concealment or conspiracy to conceal. And as we have 

explained, nothing in our reasoning prevents an injured plaintiff from bringing a 

state-law tort suit against a tobacco company, provided he does not premise his suit 

on a theory of liability that means all cigarettes are defective as a matter of law

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(and provided that he can actually prove his case). Nor does our conclusion 

necessarily foreclose Engle-progeny plaintiffs from bringing state-law strictliability or negligence claims, so long as they do not rely on the Engle jury findings 

to do so. The subtext of Graham’s legal analysis seems to suggest that his claims 

are immune from preemption simply because the Engle litigation has managed to 

survive for twenty years and has now grown too-big-to-fail. Thankfully, our 

Constitution lends credence to no such argument. 

IV.

Cigarette smoking presents one of the most intractable public health 

problems our nation has ever faced. It was not so long ago that anyone would walk 

a mile for a Camel: cigarette smoke once filled movie theaters, college classrooms, 

and even indoor basketball courts. For fifty years, the States and the federal 

government have worked to raise awareness about the dangers of smoking and to 

limit smoking’s adverse consequences to the greatest extent possible, all without 

prohibiting the sale of cigarettes to adult consumers. To that end, the State of 

Florida may ordinarily enforce duties on cigarette manufacturers in a bid to protect 

the health, safety, and welfare of its citizens. But it may not enforce a duty, as it 

has through the Engle jury findings, premised on the theory that all cigarettes are 

inherently defective and that every cigarette sale is an inherently negligent act. So 

our holding is narrow indeed: it is only these specific, sweeping bases for state tort 

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liability that we conclude frustrate the full purposes and objectives of Congress.

As a result, Graham’s Engle-progeny strict-liability and negligence claims are 

preempted, and we must reverse the District Court’s denial of judgment as a matter 

of law. 

For these reasons, the judgment of the District Court is 

REVERSED. 

 

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