[DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                       MARCH 27, 2012
                                            No. 11-14458
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                            D.C. Docket No. 5:09-cv-00255-WTH-TBS



JAMES RUSSELL, etc.,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff,

SHANNON RUSSELL,
as daughter and personal representative
of the estate of her mother, Rose Ann Eaton,
deceased,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                                versus

PHILLIP MORRIS USA, INC.,
a foreign corporation,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.
                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                      (March 27, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

       Shannon Russell, as representative of Rose Anne Eaton’s estate, seeks to

apply the findings in Engle v. Liggett Group, Inc., 

(Fla. 2006)

(per curiam),1 to prove that Marlboro cigarettes were defectively designed. Phillip

Morris USA, Inc., the manufacturer of Marlboro cigarettes, argues that Russell

cannot rely on Engle because Eaton is not a member of the Engle class and that

under Florida law collateral estoppel cannot be applied in this case. After

reviewing the briefs and the case law, we affirm the district court’s grant of

summary judgment in favor of Phillip Morris.

       Russell filed a wrongful death action on behalf of her mother alleging that

her mother died of lung cancer caused by a lifetime of smoking Marlboro



       1
         In Engle the Florida Supreme Court decertified the class, but permitted members of the
Engle class to rely on the jury’s “Phase I common core findings.” Engle v. Liggett Group, Inc.,

, 1269 (Fla. 2006). The Court also closed the class of plaintiffs eligible to rely
on the Engle findings in order to ensure that the class was not open ended. 

                                                2
cigarettes. Eaton’s lung cancer was not diagnosed until 2006. Russell admitted to

the district court that she could not prove her claims without relying on Engle.

       We review a district court’s grant of summary judgment de novo, viewing

all evidence and drawing all reasonable inferences in favor of the non-moving

party. Owen v. I.C. Sys., Inc., 

, 1270 (11th Cir. 2011). Summary

judgment is appropriate where “there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      We give preclusive effect to state court judgments when two conditions are

met: “(1) the courts of the state from which the judgment emerged would do so

themselves; and (2) the litigants had a full and fair opportunity to litigate their

claims and the prior state proceedings otherwise satisfied the applicable

requirements of due process.” Quinn v. Monroe Cnty, 

, 1329 (11th

Cir. 2003). Florida law requires mutuality of parities in order to apply collateral

estoppel. E.C. v. Katz, 

, 1269 (Fla. 1999) (per curiam). “[U]nless

both parties are bound by the prior judgment, neither may use it in a subsequent

action.” 

v. McQueen, 

, 919 (Fla. 1995)).

      Eaton is not a member of the Engle class and cannot now seek to join it

because the Florida Supreme Court held that the cut-off date for inclusion was

November 21, 1996. 

. Thus, Eaton was not a party to

                                           3
the Engle case and cannot now rely on the findings in that case under Florida law.

See R.J. Reynolds Tobacco Co. v. Brown, 

, 715 (Fla. App. 2011)

(finding that plaintiffs must prove that they are a member of the Engle class).

Because Russell conceded that she could not prove her claim without Engle and

she is barred from relying on Engle, we affirm the district court’s grant of

summary judgment in favor of Phillip Morris.

      AFFIRMED.




                                          4