The U.S. Supreme Court should review several decisions in favor of Florida smokers and deceased smokers’ families, Philip Morris USA Inc., R.J. Reynolds Tobacco Co., and Liggett Group LLC argue in petitions the court is scheduled to consider Feb. 22.

The use of factual findings about tobacco companies’ conduct from 1996 in currently pending Florida smoking cases violates the companies’ constitutional rights, the companies argue.

The Supreme Court should “put an end to this dangerous experimentation with fundamental due-process rights,” they say.

But the companies have come up short on the issue many times before. “The twenty-seventh time is not the charm,” plaintiff Cheryl Searcy responded, referring to previous denied petitions for review.

About 2,300 individual cases brought by former class members in Engle v. Ligett Group. Inc. remain pending, according to the petitions. The Engle class action included a year-long trial that decided several classwide issues against the tobacco companies. But the class was decertified in 2006.

The tobacco companies also object to federal courts’ deference to the Florida Supreme Court in allowing the Engle findings to preclude litigating certain issues in class members’ individual suits.

A changed issue with respect to claims for fraudulent concealment and conspiracy to conceal, the companies argue, is that they now “may be deprived of their property even though no jury may ever have actually decided all the elements of those claims in the plaintiff’s favor.”

But due process requires that issues be “actually decided” in order to have preclusive effect, they say.

The tobacco companies themselves sought to make the results of the Engle issues trial binding, the plaintiffs contend. And the findings cover all cigarettes, they say.

The lead petition challenging state court judgments, Philip Morris USA Inc. v. Boatright, resulted in a $35 million verdict for former smoker Richard Boatright and his wife over his chronic obstructive pulmonary disease, diagnosed when he was 39.

The main petition is in R.J. Reynolds Tobacco Co. v. Searcy, in which the U.S. Court of Appeals for the Eleventh Circuit affirmed a $4.3 million award to the daughter of a deceased smoker.

Gibson, Dunn & Crutcher LLP, Jones Day, and Mayer Brown LLP represent the tobacco companies.

Samuel Issacharoff and Lieff Cabraser Heimann & Bernstein LLP represent Searcy.

Brannock & Humphries represents the Boatrights.

The case is Philip Morris USA Inc. v. Boatright, U.S., No. 18-654, conference 2/22/19.