Smokers’ class action lawsuit (Florida case law)

Florida Case Law

ENGLE v. LIGGETT GROUP, SC03-1856 (Fla. 12-21-2006) HOWARD
A. ENGLE, M.D., et al., Petitioners, v. LIGGETT GROUP, INC.,
et al., Respondents. Case No. SC03-1856. Supreme Court of
Florida. December 21, 2006.

Application for Review of the Decision of the District
Court of Appeal — Direct Conflict of Decisions,
Third District — Case Nos. 3D00-3206, 3D00-3207,
3D00-3208, 3D00-3210, 3D00-3212, 3D00-3215, and 3D00-3400
(Dade County).

Stanley M. Rosenblatt and Susan Rosenblatt of Stanley M.
Rosenblatt, P.A., Miami, Florida, for Petitioners.

Alvin Bruce Davis of Steel, Hector and Davis, P.A., Miami,
Florida, Mercer K. Clarke and Kelly A. Luther of Clarke,
Silverglate, Campbell, Williams and Montgomery, Miami,
Florida, Marc E. Kasowitz, Daniel R. Benson and Aaron H.
Marks of Kasowitz, Benson, Torres and Friedman, LLP, New
York, New York, Elliott H. Scherker, Arthur J. England, Jr.,
and David L. Ross of Greenberg Traugrig, P.A., Miami,
Florida, Norman A. Coll and Kenneth J. Reilly of Shook,
Hardy and Bacon, LLP, Miami, Florida, Stephen N. Zack of
Zack, Sparber, Kosnitzky, Spratt and Brooks, P.A., Miami,
Florida, Benjamine Reid and Wendy F. Lumish of Carlton
Fields, P.A., Miami, Florida, Anthony N. Upshaw of Adorno
and Yoss, P.A., Miami, Florida, Renaldy J. Gutierrez and
Kathleen M. Sales of Gutierrez and Associates, Miami,
Florida, Dan K. Webb and Stuart Altschuler of Winston and
Strawn, LLP, Chicago, Illinois, Robert H. Klonoff of Jones
Day, Washington, D.C., Robert C. Heim and Joseph Patrick
Archie of Dechert, LLP, Philadelphia, Pennsylvania, James
R. Johnson and Diane P. Flannery of Jones Day, Atlanta,
Georgia, and Richard A. Schneider of King and Spalding,
LLP, Atlanta, Georgia, Joseph P. Moodhe of Debevoise and
Plimpton, New York, New York, James T. Newsom of Shook,
Hardy and Bacon, LLP, Kansas City, Missouri, for
Respondents.

Norwood S. Wilner of Spohrer, Wilner, Maxwell and Matthews,
P.A., Jacksonville, Florida on behalf of Tobacco Trial
Lawyers Association; Theodore Jon Leopold of Ricci —
Leopold, P.A., Palm Beach Gardens, Florida, Richard
Frankel, Matthew L. Myers, and Michael Stroud, Washington,
D.C. on behalf of Trial Lawyers for Public Justice and
Public Citizen, the Campaign for Tobacco-Free Kids, and the
American Cancer Society; Stephen P. Teret and Jon S.
Vernick, Center for Law and the Public’s Health, Johns
Hopkins Bloomberg School of Public Health, Baltimore,
Maryland, and John B. Ostrow, Miami, Florida on behalf of
American Public Health Association, American Medical
Association, American Academy of Pediatrics, American Heart
Association, American Lung Association, American Legacy
Foundation and Roswell Park Cancer Institute, Sylvester
Comprehensive Cancer Center/University of Miami Hospiital
and Clinics and the Women’s Cancer League of Greater Miami;
Phillip Timothy Howard of Howard and Associates, P.A.,
Tallahassee, Florida, Douglas Blanke, Executive Director,
William Mitchell College of Law, Saint Paul, Minnesota,
Richard A. Daynard, Ph.D., Robert L. Kline and Christopher
Banthin, Northeastern University School of Law, Boston,
Massachusetts on behalf of Tobacco Control Legal Consortium
and Tobacco Control Resource Center; Roy C.Young of Young
Van Assenderp, Tallahassee, Florida, John H. Beisner, John
F. Niblock and Jessica Davidson Miller of O’Melveny and
Myers, LLP, Washington, D.C., and Robin S. Conrad, National
Chamber Litigation Center, Inc., Washington, D.C., on
behalf of the Chamber of Commerce of the United States;
Rebecca O’Dell Townsend of Haas, Dutton, Blackburn, Lewis
and Longley, P.L., Tampa, Florida, Daniel J. Popeo and
David Price, Washington, D.C., on behalf of Washington
Legal Foundation and National Association of Manufacturers,
for Amici Curiae.

REVISED OPINION

PER CURIAM.

This case arises from the Third District Court of Appeal’s
reversal of a final judgment entered in a smokers’ class
action lawsuit that sought damages against cigarette
companies and industry organizations for alleged
smoking-related injuries. See Liggett Group, Inc. v. Engle,
853 So. 2d 434 (Fla. 3d DCA 2003) (hereinafter “Engle II”).
The final judgment awarded $12.7 million in compensatory
damages to three individual plaintiffs and $145 billion in
punitive damages to the entire class. See id. at 441. We
have jurisdiction because Engle II misapplies our decision
in Young v. Miami Beach Improvement Co., 46 So. 2d 26 (Fla.
1950). See art. V, § 3(b)(3), Fla. Const.

For the reasons explained more fully in this opinion,
although we approve the Third District’s reversal of the
$145 billion class action punitive damages award, we quash
the remainder of the Third District’s decision. A majority
of the Court (Anstead, Pariente, Lewis and Quince) holds
that the compensatory damages award in favor of Mary Farnan
in the amount of $2,850,000 and Angie Della Vecchia in the
amount of $4,023,000 should be reinstated. However, the
court unanimously agrees that the compensatory damages
award in favor of Frank Amodeo must be vacated based on the
statute of limitations.

Further, a majority of the Court (Anstead, Pariente, Lewis
and Quince) concludes that Engle II misapplied our decision
on the law of the case doctrine in Florida Department of
Transportation v. Juliano, 801 So. 2d 101, 106 (Fla. 2001);
that the certification of the class action and the Phase I
trial process were not abuses of the trial court’s
discretion; and that certain common liability findings can
stand. However, we also conclude that the remaining issues,
including individual causation and apportionment of fault
among the defendants, are highly individualized and do not
lend themselves to class action treatment. Thus, we remand
with directions that the class should be decertified
without prejudice to the class members filing individual
claims within one year of the issuance of our mandate in
this case with res judicata effect given to certain Phase I
findings.

More specifically, we hold as follows:

PUNITIVE DAMAGES: We unanimously hold that the Third
District erred in concluding that under Young the class
action punitive damages claims were barred by the
settlement agreement between the State of Florida and many
of the defendants involved in the present action (Florida
Settlement Agreement or FSA). However, we vacate the
punitive damages award because we unanimously conclude that
the punitive damages award is excessive as a matter of law.

A majority of the Court (Anstead, Pariente, Lewis, and
Quince) also concludes that the Third District misapplied
Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989), by holding
that compensatory damages must be determined before a jury
can consider entitlement to punitive damages. Although
Justices Lewis and Quince would allow the finding of
entitlement to punitive damages to stand, a different
majority of the Court (Wells, Anstead, Pariente, and Bell)
concludes that the trial court erred in allowing the jury
to make this finding during Phase I because, consistent
with Ault, proof of liability, which includes both reliance
and causation, is a predicate to the determination of
entitlement to punitive damages.

PHASE I FINDINGS: A majority of the Court (Anstead,
Pariente, Lewis, and Quince) concludes that the Third
District erred as a matter of law in conducting a plenary
review of the trial court’s decision to certify the Engle
Class after completion of an extended Phase I trial and
after a different panel of the Third District upheld the
certification.[fn1] This same majority concludes that it
was proper to allow the jury to make findings in Phase I on
Questions 1 (general causation), 2 (addiction of
cigarettes), 3 (strict liability), 4(a) (fraud by
concealment), 5(a) (civil-conspiracy-concealment), 6 (breach
of implied warranty), 7 (breach of express warranty), and 8
(negligence). Therefore, these findings in favor of the
Engle Class can stand. The Court unanimously agrees that
the nonspecific findings in favor of the plaintiffs on
Questions 4 (fraud and misrepresentation) and 9
(intentional infliction of emotional distress) are
inadequate to allow a subsequent jury to consider
individual questions of reliance and legal cause.
Therefore, these findings cannot stand. Because the finding
in favor of the plaintiffs on Question 5 (civil
conspiracy-misrepresentation) relies on the underlying tort
of misrepresentation, this finding also cannot stand.

ARGUMENTS OF ENGLE CLASS’S COUNSEL: A majority of the
Court (Anstead, Pariente, Lewis, and Quince) disagrees with
the Third District’s conclusion that the plaintiffs’
counsel’s improper arguments require reversal, but we
condemn in no uncertain terms some of these arguments. We
do not address the Phase II arguments because we are
reversing the punitive damages award from Phase II-B and the
defendants do not raise any error with respect to arguments
made during Phase II-A, in which the jury determined the
individual compensatory damages of three class
representatives.

CLASS CERTIFICATION CUT-OFF DATE: While a majority
(Anstead, Pariente, Lewis, and Quince) agrees that the
class cannot be open-ended, we disagree with the Third
District’s ruling that the appropriate cut-off date for
class membership is October 31, 1994, the date the class
was initially certified. We conclude that the date of the
trial court’s November 21, 1996, order that recertified a
narrower class is the appropriate cut-off date.

JUDGMENT FOR CLASS MEMBERS: Because Mary Farnan, who was
diagnosed with lung cancer in April 1996, is clearly a
proper member of the class, the Third District erred in
reversing the compensatory verdict in favor of Farnan in
the amount of $2,850,000, except as against Liggett Group
Inc. and Brooke Group Holding Inc., whom the jury found to
be zero percent at fault. We thus approve the Third
District’s conclusion that a directed verdict should be
granted in favor of Liggett and Brooke.

As for Angie Della Vecchia, she was diagnosed with lung
cancer in early 1997. However, at that time, it was also
noted by her doctors that she had a past medical history of
chronic obstructive pulmonary disease (“COPD”) and
significant hypertension. Because two of the diseases at
issue in this case are coronary heart disease and COPD,
Della Vecchia’s medical records indicate that she had been
suffering from a tobacco related disease prior to the time
of certification and is therefore properly included as a
class member. The jury specifically found that her lung
disease was caused by smoking. Thus, a majority of the
Court concludes that the compensatory judgment in favor of
Della Vecchia in the amount of $4,023,000 should stand,
except as against Liggett and Brooke, who were found to be
zero percent at fault.[fn2] The Court unanimously agrees
with the Third District that the final judgment in favor of
class representative Frank Amodeo must be reversed because
all of Amodeo’s claims are barred by the statute of
limitations.

With the summary of this Court’s holdings set forth above,
we now turn to a more in-depth discussion of the background
of this case and the salient issues.

FACTS AND PROCEDURAL HISTORY

On October 31, 1994, the trial court certified as a
nationwide class action a group of smokers and their
survivors under Florida Rule of Civil Procedure
1.220(b)(3). The class representatives on behalf of
themselves, and all others similarly situated, filed an
amended class action complaint seeking compensatory and
punitive damages against major domestic cigarette companies
and two industry organizations (hereinafter collectively
referred to as “Tobacco”) for injuries allegedly caused by
smoking.[fn3]

The trial court defined the class as: “All United States
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.” Tobacco filed an
interlocutory appeal of the trial court’s order certifying
the Engle Class pursuant to Florida Rule of Appellate
Procedure 9.130(a)(6). See R.J. Reynolds Tobacco Co. v.
Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996) (hereinafter
“Engle I”). On January 31, 1996, the Third District
affirmed the trial court’s order certifying the class but
reduced the class to include only Florida smokers. See id.
at 42 (striking “[a]ll United States citizens and
residents” provision and substituting in its place “[a]ll
Florida citizens and residents”). Tobacco’s petition for
review by this Court was denied. See R.J. Reynolds Tobacco
Co. v. Engle, 682 So. 2d 1100 (Fla. 1996).

On February 4, 1998, the trial court issued a trial plan,
dividing the trial proceedings into three phases. Phase I
consisted of a year-long trial to consider the issues of
liability and entitlement to punitive damages for the class
as a whole. See Engle II, 853 So. 2d at 441. The jury
considered common issues relating exclusively to the
defendants’ conduct and the general health effects of
smoking. See id. On July 7, 1999, at the conclusion of
Phase I, the jury rendered a verdict for the Engle Class
and against Tobacco on all counts.[fn4]

Phase II was divided into two subparts — Phase II-A
and Phase II-B. Phase II-A was intended to resolve the
issues of entitlement and amount of compensatory damages,
if any, that the three individual class representatives
— Frank Amodeo, Mary Farnan, and Angie Della Vecchia
— should receive. Phase II-B was designed to result
in a jury determination of a total lump sum punitive damage
award, if any, that should be assessed in favor of the
class as a whole.

At the conclusion of Phase II-A, the jury determined that
the three individual class representatives were entitled to
compensatory damages in varying amounts, which were offset
by their comparative fault. The total award was $12.7
million. The jury subsequently determined in Phase II-B the
lump-sum amount of punitive damages for the entire class to
be $145 billion, without allocation of that amount to any
class member. Tobacco filed several post-verdict motions,
including a motion at the conclusion of phase II-B for a
new trial or remittitur, a motion to set aside the verdict,
and for entry of judgment, and another motion to decertify
the class. See Engle v. R. J. Reynolds Tobacco, No.
94-08273 CA-22 (Fla. 11th Cir. Ct. Nov. 6, 2000)
(hereinafter “Engle F.J.”), rev’d, 853 So. 2d 434 (Fla. 3d
DCA 2003).

On November 6, 2000, the trial court entered a final
judgment and amended omnibus order, in which it granted
judgment in Tobacco’s favor in two respects. First, the
trial court granted Tobacco’s motion for directed verdict
on a statute of limitations basis with regard to named
plaintiff Frank Amodeo on the counts based on strict
liability, implied warranty, express warranty, negligence,
and intentional infliction of emotional distress. However,
the trial court ruled that Amodeo’s fraud and conspiracy
claims were not time-barred. Second, the court granted
Tobacco’s motion for directed verdict with regard to count
seven of the complaint, in which the Engle Class sought
equitable relief, upon the basis that the count had
previously been dismissed by the court. The court entered
judgment in favor of the Engle Class on all other counts,
ordered immediate payment to the individual plaintiffs, and
directed Tobacco to pay the $145 billion in punitive
damages into the registry of the Dade County Circuit Court
for the benefit of the entire class.

According to the trial plan, in Phase III, new juries are
to decide the individual liability and compensatory damages
claims for each class member (estimated to number
approximately 700,000). See Engle II, 853 So. 2d at 442.
Thereafter, the plan contemplated that the trial court
would divide the punitive damages previously determined
equally among any successful class members. Pursuant to the
omnibus order, interest on the punitive award began
accruing immediately. See id.

Tobacco filed an appeal and the Third District reversed the
final judgment with instructions that the class be
decertified. See id.

ANALYSIS

1. Res Judicata

A. History of the Florida Settlement Agreement and the
Master Settlement Agreement

In 1995, the State of Florida and others (hereinafter
“State”) filed a complaint against many of the defendants
involved in the present action (hereinafter “FSA
Defendants”).[fn5] This earlier action was initiated by the
State under the Medicaid Third-Party Liability Act, section
409.910, Florida Statutes (1995). In its complaint, the
State alleged counts of negligence, strict liability in
tort, injunctive relief, various statutory and criminal
violations, and violations of the Florida RICO Act. The
State sought reimbursement of Medicaid monies expended in
treating the victims of tobacco-related illnesses as well as
other damages permitted by law, including punitive damages
where available. Subsequent to the filing of the State’s
complaint, the circuit court granted the FSA Defendants’
motion for summary judgment and dismissed all claims by the
State for punitive damages with the exception of its claim
for punitive damages contained in count four of the
complaint alleging only statutory and criminal
violations.[fn6]

In 1997, the State and the FSA Defendants entered into the
Florida Settlement Agreement, which resolved “all present
and future civil claims against all parties to [the]
litigation relating to the subject matter of [the]
litigation, which [were] or could have been asserted by any
of the parties [thereto].” (Emphasis supplied.) Pursuant to
the terms of the FSA, in exchange for agreeing to resolve
these claims, the State received $550 million for
unspecified purposes, $200 million for a pilot program by
the State of Florida aimed at the reduction of the use of
tobacco products by minors, several billion dollars paid out
over a period of time for the benefit of the State of
Florida, and injunctive relief. As stated by the FSA, the
monies received “constitute[d] not only reimbursement for
Medicaid expenses incurred by the State of Florida, but
also settlement of all of Florida’s other claims, including
those for punitive damages, RICO and other statutory
theories.” Also included in the FSA was a
“Non-Admissibility” provision which provided:

These settlement negotiations have been undertaken by the
parties in good faith and for settlement purposes only,
and neither this Settlement Agreement nor any evidence of
negotiations hereunder, shall be offered or received in
evidence in this Action, or any other action or
proceeding, for any purpose other than in an action or
proceeding arising under this Settlement Agreement.

During the time period in which Florida pursued an action
against the FSA Defendants, several other states also
initiated actions against the FSA Defendants for similar if
not identical claims. These states settled their claims
against the FSA Defendants in November of 1998 when all
parties to that action entered into a Master Settlement
Agreement (the “MSA”). The MSA released all claims of the
participating states and also included a
“Non-Admissibility” provision similar to that in the FSA.
Under the MSA, the FSA Defendants are required to pay
certain participating states more than $200 billion over
the first twenty-five years, with additional amounts to be
paid in perpetuity after that.

B. Res Judicata Effect of the FSA

The Third District in this case held that the punitive
damages claims of the Engle Class were precluded by the
FSA. See Engle II, 853 So. 2d at 467. The district court
reasoned that Florida, in agreeing to relinquish its claims
through the FSA, had effectively resolved a matter of
general interest to all of its citizens and, therefore, the
FSA was binding upon all citizens even though they were not
parties to the original litigation. See id. at 468. The
district court therefore concluded that the FSA’s “release,
and the res judicata effect of the resulting final
judgment, preclude[d] the [Engle Class’s] punitive-damage
claims here.” Id.

We agree with the Third District that whether the
application of res judicata was proper is a question of
law. See id. at 468. We therefore apply a de novo standard
of review. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314
(Fla. 2003) (stating that standard of review for pure
questions of law is de novo).

The doctrine of res judicata serves an important purpose in
the judicial system of this state. The foundation of res
judicata is that a final judgment in a court of competent
jurisdiction is absolute and settles all issues actually
litigated in a proceeding as well as those issues that
could have been litigated. We have explained the doctrine
of res judicata as follows:

A judgment on the merits rendered in a former suit
between the same parties or their privies, upon the same
cause of action, by a court of competent jurisdiction, is
conclusive not only as to every matter which was offered
and received to sustain or defeat the claim, but as to
every other matter which might with propriety have been
litigated and determined in that action.

Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla.
2001) (alteration in original) (quoting Kimbrell v. Paige,
448 So. 2d 1009, 1012 (Fla. 1984)).

In Young, this Court held that citizens of the City of
Miami Beach were bound by a judgment against the city that
enjoined the city from asserting any interest in a
particular parcel of oceanfront property. See 46 So. 2d at
30. An association of citizens of the City of Miami Beach
filed an action to determine the public’s interest in this
parcel, which was owned by the defendant, a private
corporation. See id. at 26. In holding that the claim was
barred by the prior decree enjoining the City, we noted
that a “judgment against a municipal corporation in a
matter of general interest to all its citizens is binding
on the latter, although they are not parties to the suit.”
Id. at 30 (emphasis supplied) (quoting 38 Am. Jur. —
728).

Similarly, in Castro v. Sun Bank of Bal Harbour, 370 So. 2d
392, 393 (Fla. 3d DCA 1979), the Third District held that
private parties were precluded from relitigating public
nuisance and zoning violation claims that had already been
settled by the State. The district court reasoned that the
plaintiffs were bound by the final judgment of the prior
action “irrespective of whether they were formal parties to
the . . . action” because they were “citizens of the State
of Florida and the City of Miami at the time of the [prior]
litigation.” Id.

The district court, as well as Tobacco, relied on Young
and Castro to support the position that the FSA is binding
on all citizens of the State of Florida. However, in both
of these cases the governmental entity was asserting
interests of concern common to all of its citizens: the
public’s interest in oceanfront property and public
nuisance and zoning violations. Application of res judicata
in these contexts is supported by precedent that has
established that for a State to bind its citizens as a
result of litigation advanced by the State, the government
must be suing in its parens patriae capacity, litigating
the rights or interests common to the public at large and
thereby representing the citizenry of the State. See Satsky
v. Paramount Commc’ns, Inc., 7 F.3d 1464, 1470 (11th Cir.
1993). The Eleventh Circuit Court of Appeals appropriately
described this form of action when it stated:

“In order to maintain [a parens patriae] action, the
State must articulate an interest apart from the interests
of particular private parties, i.e., the State must be
more than a nominal party. The State must express a
quasi-sovereign interest.” Alfred L. Snapp & Son, Inc. v.
Puerto Rico, ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct.
3260, 3268, 73 L.Ed.2d 995 (1982). “Parens patriae
standing has been explained on the ground that the
plaintiff state is not merely advancing the rights of
individual injured citizens, but has an additional
sovereign or quasi-sovereign interest.” 17 Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 4047 at
223 (1988). Although the Supreme Court has not expressly
defined what is a “quasi-sovereign” interest, it is clear
that a state may sue to protect its citizens against “the
pollution of the air over its territory; or of interstate
waters in which the state has rights.” 12 Moore’s Federal
Practice § 350.02[3] at 3-20 (1993). It is equally
clear, however, that a state may not sue to assert the
rights of private individuals. See Alfred L. Snapp, 458
U.S. at 600, 102 S.Ct. at 3265; Pennsylvania v. New
Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 2335, 49 L.Ed.2d
124 (1976); New York by Abrams v. Seneci, 817 F.2d 1015,
1017 (2nd Cir.1987); Illinois v. Life of Mid-America Ins.
Co., 805 F.2d 763, 766 (7th Cir.1986), 13A Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure: Jurisdiction 2d § 3531.11 at
19 (1984).

Id. at 1469 (alteration in original).

In Satsky, the court analyzed an action in which a group of
property owners alleged a variety of private property
claims arising from the defendant’s operation of a mine.
See id. at 1466. The defendant claimed that a consent
decree between itself and the State of Colorado precluded
the plaintiffs’ claims. See id. at 1467. In reversing a
final summary judgment entered by the lower court for the
defendant, the court held that “[t]o the extent [the]
claims involve injuries to purely private interests, which
the State cannot raise, then the claims are not barred.”
Id. at 1470. We agree with the reasoning of Satsky and with
the principle that “litigation by a government agency will
not preclude a private party from vindicating a wrong that
arises from related facts but generates a distinct
individual cause of action.” Southwest Airlines Co. v.
Texas Intern. Airlines, Inc., 546 F.2d 84, 98 (5th Cir.
1977).

In the litigation that resulted in the FSA, the State, in
support of its claim for punitive damages, alleged knowing
and intentional dissemination of false, fraudulent and
misleading statements to the general public by the FSA
Defendants in violation of section 817.41, Florida Statutes
(1995).[fn7] In the present case, the Engle Class relied on
legal theories that were based on injuries personal to the
class members to support the claim for punitive damages.
Since the State had no right to pursue these types of
private interests on behalf of its citizens, the punitive
damages claims settled by the State in the FSA, if any,
were distinct from the punitive damages sought by the Engle
Class in the present case.

The reasoning in In re Exxon Valdez, 270 F.3d 1215 (9th
Cir. 2001), is instructive. In that case, the defendants
appealed a punitive damages award for claims arising out of
the Exxon Valdez oil spill. See id. at 1221. The plaintiffs
consisted of separate classes of commercial fishermen,
Alaskan natives, and landowners affected by the spill. See
id. at 1225. These distinct classes sought compensatory and
punitive damages for injuries resulting from the Exxon
Valdez spill. See id. The jury returned a verdict in favor
of the plaintiffs which assessed $287 million in
compensatory damages and $5 billion in punitive damages.
See id. Exxon appealed the resulting judgment, asserting
that the punitive damages award was barred by the res
judicata effect of a consent decree between Exxon and the
United States and the State of Alaska that settled claims
in a previous action filed under the Clean Water Act. See
id. at 1227. In holding that the award was not barred by
the previous settlement, the court concluded that the
interests asserted by the plaintiffs were distinct from
those asserted by the United States and Alaska in the prior
action. See id. at 1228. The court, relying on Satsky,
noted that the prior consent decree addressed harms caused
to the environment and the general public whereas the
claims in the class action were to vindicate wrongs that
resulted in individual injuries. See In re Exxon Valdez,
270 F.3d at 1227-28. Moreover, the court stressed that
although the consent decree “released all government
claims, [it] provides explicitly that `nothing in this
agreement, however, is intended to affect legally the
claims, if any, of any person or entity not a Party to this
Agreement.'” Id. at 1227. The FSA expressly provided that
neither the agreement itself “nor any evidence of
negotiations [t]hereunder, shall be offered or received in
evidence in this Action, or any other action or proceeding,
for any purpose other than in an action or proceeding
arising under this Settlement Agreement.” The facts of In
re Exxon are similar to the circumstances presented in this
case and support our conclusion that the Third District
erred in holding that the FSA barred the Engle Class’s
punitive damages claim.

2. Punitive Damages Award

Although we conclude that the Third District erred in
applying the doctrine of res judicata to bar the Engle
Class’s punitive damages claim, we must vacate the
classwide punitive damages award because we unanimously
agree with the Third District that the trial court erred in
allowing the jury to determine a lump sum amount before it
determined the amount of total compensatory damages for the
class. As a matter of law, the punitive damages award
violates due process because there is no way to evaluate
the reasonableness of the punitive damages award without
the amount of compensatory damages having been fixed. The
amount awarded is also clearly excessive because it would
bankrupt some of the defendants. A majority of the Court
further concludes that the trial court erred in allowing
the jury to consider entitlement to punitive damages during
the Phase I trial. We address these issues separately.

A. Phase I Finding on Entitlement to Punitive Damages

The last question on the Phase I verdict form asked the
jury to determine whether “[u]nder the circumstances of
this case, . . . the conduct of any Defendant rose to a
level that would permit a potential award or entitlement to
punitive damages.” The jury answered “yes” with respect to
each of the defendants. In Phase II-B, the jury awarded a
total of $145 billion in punitive damages to the class.

The Third District ruled that the trial erred in awarding
classwide punitive damages “without the necessary findings
of liability and compensatory damages.” Engle II, 853 So.
2d at 450. A majority of the Court (Anstead, Pariente,
Lewis, and Quince) concludes that an award of compensatory
damages is not a prerequisite to a finding of entitlement
to punitive damages. Compensatory and punitive damages serve
distinct purposes. As the United States Supreme Court has
explained:

The former are intended to redress the concrete loss that
the plaintiff has suffered by reason of the defendant’s
wrongful conduct. The latter, which have been described as
“quasi-criminal,” operate as “private fines” intended to
punish the defendant and to deter future wrongdoing. A
jury’s assessment of the extent of a plaintiff’s injury is
essentially a factual determination, whereas its
imposition of punitive damages is an expression of its
moral condemnation.

Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S.
424, 432 (2001) (citations omitted).

Because a finding of entitlement to punitive damages is not
dependent on a finding that a plaintiff suffered a specific
injury, an award of compensatory damages need not precede a
determination of entitlement to punitive damages.
Therefore, we conclude that the order of these
determinations is not critical. See Jenkins v. Raymark
Indus., Inc., 782 F.2d 468, 474 (5th Cir. 1986).

A different majority of the Court (Wells, Anstead,
Pariente, and Bell) concludes that under our decision in
Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989), a finding of
liability is required before entitlement to punitive
damages can be determined, and that liability is more than
a breach of duty. A finding of liability necessarily
precedes a determination of damages, but does not compel a
compensatory award. For example, in Ault, the jury found
that the defendant had committed an assault and battery but
awarded $0 in compensatory damages and $5000 in punitive
damages. See id. at 455. Thus, unlike the Phase I jury in
this case, the jury in Ault found that the plaintiff had
proved the underlying cause of action but did not suffer
any compensable damage.

Although we appeared to use “breach of duty” and
“liability” interchangeably in Ault, the Court expressly
adopted the principles set forth in dicta in Lassiter v.
International Union of Operating Engineers, 349 So. 2d 622
(Fla. 1976). Specifically, we stated that

[n]ominal damages are awarded to vindicate an invasion of
one’s legal rights where, although no physical or
financial injury has been inflicted, the underlying cause
of action has been proved to the satisfaction of a jury.
Accordingly, the establishment of liability for a breach
of duty will support an otherwise valid punitive damage
award even in the absence of financial loss for which
compensatory damages would be appropriate.

Ault, 538 So. 2d at 455 (some emphasis supplied) (quoting
Lassiter, 349 So. 2d at 625-26).

In this case, the Phase I verdict did not constitute a
“finding of liability” under Ault. This is evidenced by the
fact that had the jury found for Tobacco on the legal cause
and reliance issues during Phase II, there would have been
no opportunity for the jury to award the named plaintiffs
damages of any type. In other words, Phase II findings for
Tobacco on legal causation and reliance would have precluded
the jury from awarding compensatory or punitive damages. It
was error for the trial court to allow the jury to consider
entitlement to punitive damages before the jury found that
the plaintiffs had established causation and reliance.

In Phase I, the jury decided issues related to Tobacco’s
conduct but did not consider whether any class members
relied on Tobacco’s misrepresentations or were injured by
Tobacco’s conduct. As the Third District noted, the Phase I
jury “did not determine whether the defendants were liable
to anyone.” Engle II, 853 So. 2d at 450. It was therefore
error for the Phase I jury to consider whether Tobacco was
liable for punitive damages.

B. Excessiveness

Even if it were not error to determine entitlement to
punitive damages in Phase I, it was clear error to allow
the jury to go beyond mere entitlement and award classwide
punitive damages when total compensatory damages had not
been determined. Under Florida law, a trial court’s
determination of whether a damage award is excessive,
requiring a remittitur or a new trial, is reviewed by an
appellate court under an abuse of discretion standard. See
St. John v. Coisman, 799 So. 2d 1110, 1114 (Fla. 5th DCA
2001). However, a trial court’s determination as to whether
a punitive damage award exceeds the boundaries of due
process as guaranteed by the Unites States Constitution is
reviewed by a court under a de novo standard. See Cooper
Indus., 532 U.S. at 436.

Florida law requires that an appellate court review a
punitive damages award to make certain that the manifest
weight of the evidence does not render the amount of
punitive damages assessed out of all reasonable proportion
to the malice, outrage, or wantonness of the tortious
conduct. See Arab Termite & Pest Control of Fla., Inc. v.
Jenkins, 409 So. 2d 1039, 1043 (Fla. 1982). Additionally,
an award must be reviewed to ensure that it bears some
relationship to the defendant’s ability to pay and does not
result in economic castigation or bankruptcy of the
defendant. See Bould v. Touchette, 349 So. 2d 1181, 1186
(Fla. 1977).

In the past, we have not discussed whether punitive damages
awards must bear some reasonable relation to compensatory
damages. See Lassiter v. Int’l Union of Operating Eng’rs,
349 So. 2d 622, 626 (Fla. 1977); see also Ault, 538 So. 2d
at 456; Bankers Multiple Line Ins. Co. v. Farish, 464 So.
2d 530, 533 (Fla. 1985); Arab Termite, 409 So. 2d at 1043.
For example in Arab Termite, we stated that punitive
damages “are to be measured by the enormity of the offense,
entirely aside from the measure of compensation for the
injured plaintiff.” 409 So. 2d at 1043. However, we now
hold, consistent with United States Supreme Court decisions
after Ault that recognize due process limits on punitive
damages, that a review of the punitive damages award
includes an evaluation of the punitive and compensatory
amounts awarded to ensure a reasonable relationship between
the two.

The United States Supreme Court has stated that a review of
a punitive damages award must include consideration of
three guideposts to determine whether the award is
unconstitutionally excessive:

(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.

State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408,
418 (2003) (citing BMW of North America, Inc. v. Gore, 517
U.S. 559, 575 (1996)).

The second guidepost is determinative in this case. As the
United States Supreme Court has explained regarding this
second factor:

[W]e have been reluctant to identify concrete
constitutional limits on the ratio between harm, or
potential harm, to the plaintiff and the punitive damages
award. Gore, 517 U.S., at 582 (“[W]e have consistently
rejected the notion that the constitutional line is marked
by a simple mathematical formula, even one that compares
actual and potential damages to the punitive award”); TXO
[Production Corp. v. Alliance Resources Corp., 509 U.S.]
at 458. We decline again to impose a bright-line ratio
which a punitive damages award cannot exceed. Our
jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards
exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will
satisfy due process. In [Pacific Mutual Life Insurance
Co. v.] Haslip, in upholding a punitive damages award,
we concluded that an award of more than four times the
amount of compensatory damages might be close to the line
of constitutional impropriety. 499 U.S., at 23-24. We
cited that 4-to-1 ratio again in Gore. 517 U.S., at 581.
The Court further referenced a long legislative history,
dating back over 700 years and going forward to today,
providing for sanctions of double, treble, or quadruple
damages to deter and punish. Id., at 581, and n. 33. While
these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit
multipliers are more likely to comport with due process,
while still achieving the State’s goals of deterrence and
retribution, than awards with ratios in range of 500 to
1, id., at 582, or, in this case, of 145 to 1.

Nonetheless, because there are no rigid benchmarks that a
punitive damages award may not surpass, ratios greater
than those we have previously upheld may comport with due
process where “a particularly egregious act has resulted
in only a small amount of economic damages.” Ibid.; see
also ibid. (positing that a higher ratio might be
necessary where “the injury is hard to detect or the
monetary value of noneconomic harm might have been
difficult to determine”). The converse is also true,
however. When compensatory damages are substantial, then
a lesser ratio, perhaps only equal to compensatory
damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must
be based upon the facts and circumstances of the
defendant’s conduct and the harm to the plaintiff.

In sum, courts must ensure that the measure of punishment
is both reasonable and proportionate to the amount of harm
to the plaintiff and to the general damages recovered.

Campbell, 538 U.S. at 424-26. Thus, the amount of
compensatory damages must be determined in advance of a
determination of the amount of punitive damages awardable,
if any, so that the relationship between the two may be
reviewed for reasonableness.

In this case, the district court stated that without having
total compensatory damages determined it would be
“impossible to determine whether punitive damages bear a
`reasonable’ relationship to the actual harm inflicted on
the plaintiff.” Engle II, 853 So. 2d at 451. We agree. The
trial plan allowed a lump sum determination of punitive
damages for the entire class when compensatory damages had
been determined only for the three individual class
representatives. This approach does not provide a reviewing
court with an adequate starting point to compare the lump
sum punitive damages amount to compensatory damages to
ensure there is some reasonable relationship. Accordingly,
even if there was no error in allowing the Phase I jury to
find entitlement to punitive damages, the classwide
punitive damages award must be reversed.[fn8]

3. Law of the Case — Class Certification

In concluding that the Engle Class must be decertified, the
Third District in Engle II ruled that the “`predominance’
or `commonality’ requirement is not satisfied, where claims
involve factual determinations unique to each plaintiff.”
853 So. 2d at 445. The district court explained that
“common questions” did not predominate over individual
issues because the choice of law analysis would require
examination of numerous different state laws governing
different individual claims. See id. at 449. The court also
concluded that class representation would not be “superior”
to individual suits because: (1) individualized issues of
liability, affirmative defenses, and damages outweighed any
common issues in the case; (2) each class member had unique
and different experiences, which would necessitate
litigation of substantially separate issues, including
legal causation, specific medical causation, reliance, and
awareness of risks; and (3) individualized choice of law
issues would cause class proceedings to be unmanageable.
See id. at 445-47.

We conclude that the Third District erred in nullifying its
previous affirmance of the trial court’s certification
order. Contrary to the Third District’s conclusion, Florida
Rule of Civil Procedure 1.220(d)(1) did not authorize the
subsequent (and different) panel of appellate judges to
simply substitute its judgment for that of the prior panel
and reverse the trial court’s certification order after the
trial court entered its final judgment after Phase II. See
Engle II, 853 So. 2d at 443 n. 4.

A class is normally certified at an early stage of the
proceedings, certainly before trial, and typically before
discovery is completed. Rule 1.220(d)(1) provides an avenue
for reexamining certification if subsequent discovery shows
that circumstances have changed. See Int’l Longshoremen’s
Ass’n, Deep Sea Local 1408 v. Fisher, 860 So. 2d 1078, 1078
(Fla. 1st DCA 2003) (affirming the trial court’s nonfinal
order certifying a class but noting that “because the order
is interlocutory, it may be revisited by the trial court
should circumstances change”). Rule 1.220(d)(1) was not
designed to allow a district court to decertify a class,
contrary to its previous affirmance of class certification
and after notice to thousands of Floridians, a two-year
trial, and an entry of final judgment.

Moreover, under the doctrine of law of the case, the Third
District would have been justified in reversing its
previous ruling in Engle I only if it concluded that the
prior ruling would have resulted in a clear manifest
injustice. See Juliano, 801 So. 2d at 106 (“[A]n appellate
court has the power to reconsider and correct an erroneous
ruling that has become the law of the case where a prior
ruling would result in a `manifest injustice.'”) (quoting
Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965)).

Law of the case “requires that questions of law actually
decided on appeal must govern the case in the same court
and the trial court, through all subsequent stages of the
proceedings.” Juliano, 801 So. 2d at 105. The Third
District recently reiterated the purpose of the law of the
case doctrine in a decision holding that the doctrine
precluded relitigation of the propriety of class action
treatment: “[P]oints of law adjudicated in a prior appeal
are binding in order to promote stability of judicial
decisions and to avoid piecemeal litigation.” State, Dep’t
of Revenue v. Bridger, 31 Fla. L. Weekly D1573, D1574 (Fla.
3d DCA June 7, 2006) (quoting Bueno v. Bueno de Khawly, 677
So. 2d 3, 4 (Fla. 3d DCA 1996)).

The law of the case applies in subsequent proceedings as
long as there has been no change in the facts on which the
mandate was based. Specifically, we have recognized that

an appellate court should reconsider a point of law
previously decided on a former appeal only as a matter of
grace, and not as a matter of right; and that an exception
to the general rule binding the parties to “the law of the
case” at the retrial and at all subsequent proceedings
should not be made except in unusual circumstances and
for the most cogent reasons — and always, of
course, only where “manifest injustice” will result from a
strict and rigid adherence to the rule.

Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965). We have
also cautioned that “the exception to the rule should never
be allowed when it would amount to nothing more than a
second appeal on a question determined on the first
appeal.” Id. (emphasis supplied).

We conclude that no circumstances existed that justified
the subsequent panel’s reconsideration of the prior Third
District decision approving class certification, which all
parties and the trial court relied on to govern the
continuation of the class action. On this issue, the
analysis of the Engle II court was flawed in several
respects. First, the Engle II court ignored the trial
court’s pretrial ruling that only Florida law would apply
when it stated that the “choice-of-law analysis in the
present case will require examination of numerous
significantly different state laws governing the different
plaintiffs’ claims.” Engle II, 853 So. 2d at 449. Second,
none of the cases from other jurisdictions cited by the
Third District in Engle II to justify decertification was
in the procedural posture of the present case.[fn9]

This case came before the Third District in Engle II after
it had affirmed the class certification and after the
conclusion of a trial on all common issues. Thus, there is
no need to engage in an abstract analysis of the propriety
of separate proceedings on common limited liability issues.
Invalidating the completed class action proceedings on
manageability and superiority grounds after a trial has
occurred does not accord with common sense or logic.

Of course, this Court is not bound by the Third District’s
law of the case. See Juliano, 801 So. 2d at 105 (“The
doctrine of the law of the case requires that questions of
law actually decided on appeal must govern the case in the
same court and the trial court, through all subsequent
stages of the proceedings.”). Nevertheless, we conclude
that the trial court did not abuse its discretion in
certifying the class. See Fla. Dep’t of Agric. & Consumer
Servs. v. City of Pompano Beach, 829 So. 2d 928, 929 (Fla
4th DCA 2002) (“The trial court’s order certifying the
class is subject to review under an abuse of discretion
standard.”); Bouchard Transp. Co. v. Updegraff, 807 So. 2d
768, 771 (Fla. 2d DCA 2002) (“[T]he determination that a
case meets the requirements of a class action is a factual
finding that is within the trial court’s discretion and
will be reversed on appeal only if an abuse of discretion
is shown.”).

4. Three-Phase Trial Plan — Decertification

We agree with the Third District that problems with the
three-phase trial plan negate the continued viability of
this class action. We conclude that continued class action
treatment for Phase III of the trial plan is not feasible
because individualized issues such as legal causation,
comparative fault, and damages predominate. See Fla. R.
Civ. P. 1.220(b)(3) (“A claim or defense may be maintained
on behalf of a class if the court concludes that the
prerequisites of subdivision (a) are satisfied, and that .
. . the claim or defense is not maintainable under either
subdivision (b)(1) or (b)(2), but the questions of law or
fact common to the claim or defense of the representative
party and 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. . . .”).

Florida Rule of Civil Procedure 1.220(d)(4)(A) provides
that “[w]hen appropriate . . . a claim or defense may be
brought or maintained on behalf of a class concerning
particular issues.” Although no Florida cases address
whether it is appropriate under rule 1.220(d)(4)(A) to
certify class treatment for only limited liability issues,
several decisions by federal appellate courts applying a
similar provision in the Federal Rules of Civil Procedure
provide persuasive authority for this approach.

Federal Rule of Civil Procedure 23(c)(4)(A) provides that
“[w]hen appropriate . . . an action may be brought or
maintained as a class action with respect to particular
issues.” In determining whether the predominance
requirement of Federal Rule of Civil Procedure
23(b)(3)[fn10] has been met, several United States Courts of
Appeals have concluded that under federal rule 23(c)(4)(A)
a trial court can properly separate liability and damages
issues, certifying class treatment of liability while
leaving damages to be determined on an individual basis.
See Olden v. LaFarge Corp., 383 F.3d 495, 509 (6th Cir.
2004) (stating that the district court can properly
“bifurcate the issue of liability from the issue of
damages, and if liability is found, the issue of damages
can de decided by a special master or by another method”);
Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th
Cir. 2004) (noting that “Rule 23 allows district courts to
devise imaginative solutions to problems created by the
presence in a class action litigation of individual damages
issues”); In re Visa Check/Mastermoney Antitrust
Litigation, 280 F.3d 124, 139-41 (2d Cir. 2001) (noting
that “[c]ommon issues may predominate when liability can be
determined on a class-wide basis, even when there are some
individualized damage issues” and that “[t]here are a
number of management tools available to a district court to
address any individualized damages issues that might arise
in a class action”); Valentino v. Carter-Wallace, Inc., 97
F.3d 1227, 1234 (9th Cir. 1996) (“Even if the common
questions do not predominate over the individual questions
so that class certification of the entire action is
warranted, Rule 23 authorizes the district court in
appropriate cases to isolate the common issues under Rule
23(c)(4)(A) and proceed with class treatment of these
particular issues.”); see also Slaven v. BP America, Inc.,
190 F.R.D. 649, 658 (C.D. Cal. 2000) (maintaining class
status “solely for the determination of liability” and
stating that “[i]f plaintiffs prevail on the liability
portion of their case, the Court will determine the
appropriate method of adjudicating causation and damages
issues at that juncture”).[fn11]

The Second and Seventh Circuits have also stated that the
determination that class treatment of damages issues is
inappropriate can be made after a finding on liability. See
Carnegie, 376 F.3d at 661 (explaining that one option
available to the district courts for solving problems
created by the presence in a class action litigation of
individual damages issues is to decertify the class after
the liability trial); Visa Check/Mastermoney Antitrust
Litigation, 280 F.3d at 141 (same). In Carnegie, the
Seventh Circuit discussed the manageability of a class
action alleging RICO violations and explained:

Often . . . there is a big difference from the standpoint
of manageability between the liability and remedy phases
of a class action. The number of class members need have
no bearing on the burdensomeness of litigating a violation
of RICO. Whether particular members of the class were
defrauded and if so what their damages were are another
matter, and it may be that if and when the defendants are
determined to have violated the law separate proceedings
of some character will be required to determine the
entitlements of the individual class members to relief.
That prospect need not defeat class treatment of the
question whether the defendants violated RICO. Once that
question is answered, if it is answered in favor of the
class, a global settlement . . . will be a natural and
appropriate sequel. And if there is no settlement, that
won’t be the end of the world. Rule 23 allows district
courts to devise imaginative solutions to problems
created by the presence in a class action litigation of
individual damages issues.

376 F.3d at 661 (citations omitted). In Visa
Check/Mastermoney Antitrust Litigation, the Second Circuit
concluded that the district court adequately addressed
individual issues that might arise from certifying the
class by specifically recognizing “its ability to modify its
class certification order, sever liability and damages, or
even decertify the class if such an action ultimately
became necessary.” 280 F.3d at 141.

In this case, the Phase I trial has been completed. The
pragmatic solution is to now decertify the class, retaining
the jury’s Phase I findings other than those on the fraud
and intentional infliction of emotion distress claims,
which involved highly individualized determinations, and
the finding on entitlement to punitive damages questions,
which was premature. Class members can choose to initiate
individual damages actions and the Phase I common core
findings we approved above will have res judicata effect in
those trials. See Daenzer v. Wayland Ford, Inc., 210 F.R.D.
202, 205 (W.D. Mich. 2002) (entering summary judgment on
the issue of liability, decertifying the class on the issue
of damages and stating that “[t]he Court’s decision as to
liability is res judicata in any damages action individual
class members decide to bring”); McCormack v. Abbott Labs.,
617 F. Supp. 1521 (D. Mass. 1985) (concluding that
plaintiff’s strict liability claim was barred by judgment
for the defendants entered in a prior class action, which
the plaintiff joined, before that class action was
decertified).[fn12]

We disagree with Justice Wells’ conclusion that bifurcating
the trial in this manner violates article I, section 22 of
the Florida Constitution. See concurring in part and
dissenting in part op. at 10-12. We recognize the concerns
expressed by the Fifth Circuit Court of Appeals in Castano
v. American Tobacco Co., 84 F.3d 734, 750 (5th Cir. 1996),
in which that court held that bifurcation of issues in a
nationwide smoking class action violated the Seventh
Amendment to the United States Constitution.[fn13] However,
subsequent to its decision in Castano, the Fifth Circuit
held that the risk of infringing on the parties’ Seventh
Amendment rights is not significant and is in fact avoided
where the liability issues common to all class members are
tried together by a single initial jury, and issues
affecting individual class members such as causation,
damages, and comparative negligence are tried by different
juries. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d
620, 628-29 (5th Cir. 1999). Recognizing that it had
previously reached a different conclusion in Castano, the
Fifth Circuit explained that the circumstances of Castano
were distinct from those present in Mullen:

In Castano, we were concerned that allowing a second jury
to consider the plaintiffs’ comparative negligence would
invite that jury to reconsider the first jury’s findings
concerning the defendants’ conduct. We believe that such
a risk has been avoided here by leaving all issues of
causation for the phase-two jury. When a jury considers
the comparative negligence of a plaintiff, “the focus is
upon causation. It is inevitable that a comparison of the
conduct of plaintiffs and defendants ultimately be in
terms of causation.” Lewis v. Timco, Inc., 716 F.2d
1425, 1431 (5th Cir. 1983) (en banc); see id. (permitting
the use of comparative negligence in strict liability
claims). Thus, in considering comparative negligence, the
phase two jury would not be reconsidering the first jury’s
findings of whether Treasure Chest’s conduct was negligent
or the [vessel] unseaworthy, but only the degree to
which those conditions were the sole or contributing cause
of the class member’s injury. Because the first jury will
not be considering any issues of causation, no Seventh
Amendment implications affect our review of the district
court’s superiority finding.

Mullen, 186 F.3d at 628-29 (emphasis supplied).

The Fifth Circuit’s reasoning in Mullen is persuasive. In
this case, although the jury decided issues common to all
class members, none involved whether, or the degree to
which, the defendants’ conduct was the sole or contributing
cause of the class members’ injuries, which is the
pertinent question in applying the doctrine of comparative
negligence. We thus follow the reasoning of Mullen and
conclude that the trial plan in this case did not violate
Tobacco’s rights under article I, section 22 of the Florida
Constitution.

5. Arguments of Engle Class’s Counsel

We conclude that, under the totality of the circumstances,
reversal is not warranted based on the remarks made by the
Engle Class’s counsel, Stanley Rosenblatt. Nevertheless, we
must again remind counsel that we will not condone improper
arguments. Inappropriate jury arguments in this type of
case risk wasting significant judicial resources. Here,
trial counsel ventured very close to the line of reversible
error on a number of occasions in his attempt to counteract
opposing counsel’s contentions that Tobacco acted lawfully
and to communicate his message to the jury that “legal
doesn’t make it right.” However, we conclude that under the
totality of the circumstances these comments did not rise
to the level of reversible error.

If the issue of an opponent’s improper argument has been
properly preserved by objection and motion for mistrial,
the trial court should grant a new trial if the argument
was “so highly prejudicial and inflammatory that it denied
the opposing party its right to a fair trial.” Tanner v.
Beck, 907 So. 2d 1190, 1196 (Fla. 3d DCA 2005); see also
Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1013 n.
2 (Fla. 2000) (stating the Court’s decision addressing
unobjected-to argument “does not impact the legal standards
applicable to consideration of the issue that has been
properly preserved by objection and motion for mistrial,
which remains whether the comment was highly prejudicial
and inflammatory”). To justify granting a motion for a new
trial based on unobjected-to improper argument, the trial
court must find that the improper argument is of such a
nature as to reach into the validity of the trial itself to
the extent that the verdict could not have been obtained
but for such comments. See Murphy, 766 So. 2d at 1029-30. A
trial court’s order granting or denying a motion for a new
trial based on either objected-to or unobjected-to improper
argument is reviewed for abuse of discretion. See id. at
1030-31 (“[T]he appellate court must . . . apply an abuse
of discretion standard in reviewing either the trial
court’s grant or denial of a new trial based on the
unobjected-to closing argument.”); Bocher v. Glass, 874 So.
2d 701, 704 (Fla. 1st DCA 2004) (reviewing a trial court’s
order denying a motion for rehearing based on objected-to
improper argument for an abuse of discretion).

In denying Tobacco’s motions for mistrial, the trial court
stated:

The Court has carefully considered the Motions for
Mistrial in this cause and has determined that curative
instructions to the jury and/or motions to strike have
been granted as requested by the movant, for most of the
motions, and in any event the cumulative effect of the
alleged error, was not in the opinion of the Court,
sufficient to have so influenced the jury as to affect the
outcome of the case considering the length of the trial,
the number of witnesses presented, the quality and
quantity of the testimony, the huge amount of documentary
evidence, and specifically the substance of the alleged
remarks. The jury in this case rendered three verdicts,
each based upon a mountain of evidence over a period of
two years in three separate trials. The court feels
confident, that although some remarks of counsel may have
been uncalled for, or subject to objection, they were
not so egregious as to require a new trial.

Engle F.J., No. 94-08273 CA-22 order at 17. However, the
Third District held that the comments “caused irreparable
prejudice and require reversal.” Engle II, 853 So. 2d at
458. Specifically, the district court determined that this
was accomplished in two stages:

First, by inflaming the jury with racial pandering and
pleas for nullification of the law to secure entitlement
to punitive damages. And second, by removing
responsibility from the jury for the size of the award,
through arguing the award would be subject to appellate
review and that it would not be paid out in a lump sum,
but rather through a payout scheme.

Id. at 459. The district court then proceeded to list all of
counsel’s arguments it determined were improper.

Significantly, the manner in which the district court has
set forth and presented the offending argument, stringing
the comments together, would certainly cause a reader to
assume that the comments are prejudicial. However, this is
not proper analysis for review under the totality of the
circumstances. Context is crucial. To determine whether the
challenged statements and arguments were in fact
prejudicial, the statements cannot be evaluated in
isolation but must be placed and evaluated in context. See
State v. Jones, 867 So. 2d 398, 400 (Fla. 2004) (“[T]his
Court has evaluated the prosecutor’s action in context
rather than focusing on the challenged statement in
isolation.”).

We emphasize that the duration of this trial does not mean
that a comment or several comments standing alone would not
warrant reversal. Nonetheless, the length of the trial is
relevant to the analysis because the alleged improper
statements were not made on the same day or contained
within a two-or three-hour closing argument. These
statements spanned a two-year period. Some comments were
made during opening statements in Phase I (liability phase)
in October of 1998, some during Phase I closing argument in
June of 1999, and others during the closing statements in
Phase II-B (punitive damages phase) in July of 2000. Many
of the alleged improper comments did not even prompt an
objection by Tobacco.[fn14]

We begin with the Third District’s conclusion that
plaintiffs’ counsel engaged in “racial pandering” and that
the jury’s “runaway” verdict was evidently one inflamed by
passion and prejudice. A single reference to “race” in the
Phase I opening statement was in the context of the
consumer studies that the defendants conducted that divide
American consumers into groups. Mr. Rosenblatt’s comment
that “they study races” was part of a statement about the
study of the American consumer: “They study kids; they
study races; they divide the American consumer into groups
to sell their product.” In fact, when the defense objected
on the basis that those comments were “only designed to
prejudice the jury,” the trial court rejected this argument
because that was “not the context of which it’s being
used.” Mr. Rosenblatt then followed up with the statement
that this is an industry that “divides the American
consumer into groups: white, black, Jewish, Christian,
young, old.” The trial court did not abuse its discretion
by determining that these statements were made in an
attempt to show how Tobacco sells its products and
advertises to different groups, not to impermissibly
prejudice the jury.

As to the Phase I closing argument, we agree that a series
of improper remarks occurred when counsel injected race
into his argument:

Are there two sides to every question? And the immediate
gut reaction is: Yeah, yeah. You want to be fair and you
say: Right, there’s two sides to every question. What’s
the other side to the Holocaust? What is the other side to
slavery?

An objection was made and sustained. While one could posit
that this was merely an attempt to explain to the jury that
there are not always two sides, several minutes later Mr.
Rosenblatt returned to a race-based theme by referring to
Rosa Parks:

Let’s discuss the concept of legal in the context of
America. I noticed in last week’s newspaper, Rosa Parks,
who is 86 years old, got the Congressional Gold Medal
because in 1955. . . .

Mr. Rosenblatt got no further because an objection was made
and sustained. Undaunted by the trial court’s ruling, Mr.
Rosenblatt continued:

We look back in history. We look back in history. The
whole civil rights movement of the `60s was fighting
against unjust laws. Dr. King was arrested in the `60s. .
. .

An objection was made and overruled and Mr. Rosenblatt
continued:

In this building, in this building, a temple to the law,
they were — there were drinking fountains which
said Whites Only.

Once again, an objection was made and overruled.

There is absolutely no justification for this series of
remarks, which appears to compare the tobacco industry with
slavery and, by invoking civil rights leaders Rosa Parks
and Martin Luther King, appealed to the jury’s sense of
outrage for the injustices visited upon African-Americans
in this country. We condemn these tactics of Mr.
Rosenblatt. His attempt to incite racial passions was
conduct unbecoming an attorney practicing in our state
courts.

Nevertheless, we note that the trial court sustained
objections to several of these remarks and no motion for
mistrial was made or curative instruction requested. In
addition, there was no further race-based argument during
the remainder of the closing, and, significantly, no such
references were made in any of Mr. Rosenblatt’s Phase I
rebuttal argument.

We next discuss the Third District’s conclusion that Mr.
Rosenblatt’s Phase I closing argument was also replete with
impermissible references to jury nullification. The
relevant comments were made in response to Tobacco’s
preemption defense: that the warnings on the cigarettes
were as provided by law. Although compliance with the
federal warnings preempted any claim based on failure to
warn, it did not eliminate the other causes of action that
the jury had to consider in Phase I. As for the comment
“legal don’t make it right,” Mr. Rosenblatt was referring
to the answers given by the CEO for Brown & Williamson,
Nick Brookes. Mr. Brookes was asked what he would do with
his product if he became convinced that cigarettes caused
cancer and heart disease. His reply was it would not affect
his business because “it’s a legal product.” Mr.
Rosenblatt’s response was that “legal don’t make it right.”
No objection was made. In fact, this theme continued in
rebuttal when Mr. Rosenblatt explained without objection:

It’s a legal product. There is no question about it. But
a legal product does not mean that the cigarette companies
are not responsible when their product causes harm and
death to their customers. And being legal is a very
relative term.

These arguments were not an attempt to tell the jury to
ignore the law.

We conclude, under the totality of the circumstances,
including that several objections were sustained and a
number of the arguments were unobjected-to, that the
defendants did not sustain their burden of proving
reversible error under Murphy or that the trial court abused
its discretion in denying the motion for new trial as to
Phase I. As to Phase II, we note that no arguments have
been raised as to impermissible comments during Phase II-A,
in which the jury determined compensatory damages as to the
three class representatives. Moreover, a review of the
verdicts reveals that each verdict reflected a careful and
differentiated analysis as to comparative fault and
individual damages and in no way justifies the Third
District’s overall conclusion that this was a runaway jury
inflamed by race because of the arguments directed to the
four of the six members of the jury who were
African-American. As to Phase II-B, because we are reversing
the punitive damages award we do not separately review each
of these arguments except to again note that no race-based
arguments were made.

6. Reversal of Final Judgments in Favor of the Three Class
Representatives

The issue of whether two of the three Engle Class
representatives are properly included within the class as
certified by the trial court and approved on appeal
involves the application of the law to a set of undisputed
facts. “[W]here the facts are essentially undisputed, the
legal effect of the evidence will be a question of law.”
Town of Palm Beach County v. Palm Beach County, 460 So. 2d
879, 882 (Fla. 1984). Questions of law are reviewed de
novo.

The trial court originally certified this class on October
31, 1994. This order provided for notice to the members of
the class by way of publication and indicated that the
trial court was to hold an additional hearing “to discuss
the content, timing and manner of providing notice.” At
that time, the class was described as:

All United States 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. The class
shall specifically exclude officers, directors and
agents of the [d]efendants.

Engle I, 672 So. 2d at 40. The class certification was
affirmed by the Third District on January 31, 1996, but the
class membership was altered by the district court to
include only Florida citizens and residents. See id. at 42.
Subsequent to the district court’s modification limiting
the class to Florida citizens, the trial court issued an
amended order on November 21, 1996, recertifying the more
limited class.

The final class description could lead one to believe that
the class is open-ended because there is no stated cut-off
date for membership. However, an open-ended class would not
allow for notice and an opportunity to opt out as required
by rule 1.220(d)(2) and may implicate potential class
members’ right of access to the courts under article I,
section 21 of the Florida Constitution.

Further, without the ability to opt out, potential
plaintiffs could argue that they should be allowed to
intervene after a judgment in favor of the class or,
alternatively, that they are not bound by an adverse
judgment. Cf. Katz v. Carte Blanche Corp., 496 F.2d 747, 759
(3d Cir. 1974) (explaining that prior to the adoption of
Federal Rule of Civil procedure 23(c)(2) some courts
suggested that “it would be proper to make the class action
determination and permit class members to intervene after
the defendant’s liability had been determined in the single
lawsuit,” that this “one-way intervention had the effect of
giving collateral estoppel effect to the judgment of
liability in a case where the estoppel was not mutual,” and
that the notice and opt-out provisions were adopted to give
mutual estoppel effect to the judgment on liability). A
finite class is necessary to avoid multiple similar
lawsuits and to make legal process more effective and
expeditious, important goals of a class action suit. See
Tenney v. City of Miami Beach, 11 So. 2d 188, 189 (Fla.
1942) (“The very purpose of a class suit is to save a
multiplicity of suits, to reduce the expense of litigation,
to make legal processes more effective and expeditious, and
to make available a remedy that would not otherwise
exist.”).

The plain language of the class certification indicates
that the trial court anticipated that the class would be
cut off or limited to the date of final certification. The
phrase “who have suffered, presently suffer or have died”
supports the view that the class should include only those
people who were affected in the past or who were presently
suffering at the time the class was recertified by the
trial court. Moreover, although not controlling, federal
case law supports the interpretation that the date of final
class certification should be presumed the proper cut-off
date for class membership. See Sosna v. Iowa, 419 U.S. 393,
403 (1975) (“A litigant must be a member of the class which
he or she seeks to represent at the time the class action
is certified by the district court.”) (citing Bailey v.
Patterson, 369 U.S. 31 (1962)); Davis v. Ball Mem’l Hosp.
Ass’n, 753 F.2d 1410, 1420 (7th Cir. 1985) (“To be a proper
class representative, the named plaintiff must be a member
of the class at the time the class action is certified.”).

In our view, it is reasonable to conclude that the cut-off
date for class membership is November, 21, 1996, the date
the trial court recertified the class and issued an amended
order conforming the class description to the Third
District’s decision. It was with this November 21, 1996,
order that the circuit court first ordered that notice to
potential class members be published in newspapers and
magazines circulated in Florida. The language employed by
the United States Supreme Court in Sosna, although not
addressing a scenario such as we face today, is not
contrary to our conclusion.

Relying upon Davis v. Ball Memorial Hospital Association,
the district court held that “[s]ince Farnan was diagnosed
in April 1996, and Della Vecchia was diagnosed in February
1997, they are clearly excluded from the class and the
judgment in their favor must be reversed.” Engle II, 853
So. 2d at 454 n. 23 (emphasis supplied). However,
“diagnosis” as a qualifying factor does not appear anywhere
in the description of the class certified. Rather, the
class is described as those “who have suffered, presently
suffer or have died from diseases and medical conditions.”
Engle I, 672 So. 2d at 40 (emphasis supplied). The critical
event is not when an illness was actually diagnosed by a
physician, but when the disease or condition first
manifested itself.

Our review of the medical records demonstrates that class
representative Farnan was formally diagnosed with lung
cancer in March of 1996, clearly demonstrating her disease
had manifested by that time. Therefore, she was a proper
member of the class at the time of the circuit court’s
November 21, 1996, order. As for class representative Della
Vecchia, it was noted by her doctors in early 1997 that she
had a past medical history of “COPD” and significant
hypertension. Thus, Della Vecchia’s medical records
indicate that she had been suffering from a tobacco-related
disease prior to the time of certification and is also
properly included as a class member. We therefore quash the
district court’s reversal of judgment entered in favor of
class representatives Farnan and Della Vecchia and hereby
order that the judgments be reinstated.

In addition to reversing the judgments in favor of Farnan
and Della Vecchia, the district court also held that the
judgment in favor of Tobacco should have been entered as to
all of class representative Amodeo’s claims. See Engle II,
853 So. 2d at 455 n. 23. We agree that the district court
properly held that all judgments in favor of class
representative Amodeo were barred by the applicable statute
of limitations.

6. Final Judgments Entered in Favor of the Three Class
Representatives in Favor of Liggett and Brooke

As noted above, the final judgments entered in favor of
class representative Amodeo, including those against
Liggett and Brooke, must be reversed because Amodeo’s
claims are barred by the statute of limitations. We also
agree with the Third District that the judgments against
defendants Liggett and Brooke in favor of Farnan and Del
Vecchia must be reversed because there was insufficient
evidence to support these judgments. As the Third District
explained, “it is undisputed that the Liggett defendants
did not manufacture or sell any of the products that
allegedly caused injury to the individual plaintiff
representatives. It is also undisputed that the jury found
the Liggett defendants zero percent at fault with respect
to each of the named plaintiffs.” Engle II, 853 So. 2d at
466 n. 46. A defendant who is found to be zero percent at
fault for a plaintiff’s damages cannot be held jointly and
severally liable for those damages. We agree with the Third
District that this inconsistency in the verdict requires
reversal of the judgments entered against Liggett and
Brooke. See id.

CONCLUSION

In conclusion, we approve the Third District’s holding that
the $145 billion award of punitive damages must be vacated.
However, we disapprove the Third District’s conclusion that
the class action punitive damages claims were barred by the
FSA.

We also disapprove the Third District’s holding that the
trial court abused its discretion in denying Tobacco’s
motion for a mistrial due to improper argument by the Engle
Class’s counsel. We uphold the award of compensatory
damages as to plaintiffs Farnan and Della Vecchia, and
approve the reversal of the entry of judgment in favor of
Amodeo. However, the judgments against defendants Liggett
and Brooke must reversed.

We approve the Phase I findings for the class as to
Questions 1 (that smoking cigarettes causes aortic
aneurysm, bladder cancer, cerebrovascular disease, cervical
cancer, chronic obstructive pulmonary disease, coronary
heart disease, esophageal cancer, kidney cancer, laryngeal
cancer, lung cancer (specifically, adenocarinoma, large
cell carcinoma, small cell carcinoma, and squamous cell
carcinoma), complications of pregnancy, oral cavity/tongue
cancer, pancreatic cancer, peripheral vascular disease,
pharyngeal cancer, and stomach cancer), 2 (that nicotine in
cigarettes is addictive), 3 (that the defendants placed
cigarettes on the market that were defective and
unreasonably dangerous), 4(a) (that the 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),
5(a) (that the 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), 6 (that all of the defendants sold or supplied
cigarettes that were defective), (7) (that all of the
defendants sold or supplied cigarettes that, at the time of
sale or supply, did not conform to representations of fact
made by said defendants), and 8 (that all of the defendants
were negligent). Therefore, these findings in favor of the
Engle Class can stand.

The class consists of all Florida residents fitting the
class description as of the trial court’s order dated
November 21, 1996. However, we conclude for the reasons
explained in this opinion that continued class action
treatment is not feasible and that upon remand the class
must be decertified. Individual plaintiffs within the class
will be permitted to proceed individually with the findings
set forth above given res judicata effect in any subsequent
trial between individual class members and the defendants,
provided such action is filed within one year of the
mandate in this case. We remand this case to the Third
District for further proceedings consistent with this
opinion.

It is so ordered.

ANSTEAD and PARIENTE, JJ., concur.

LEWIS, C.J., concurs in part and dissents in part with an
opinion, in which QUINCE, J., concurs.

WELLS, J., concurs in part and dissents in part with an
opinion, in which

BELL, J., concurs.

CANTERO, J., recused.