ORDER

Carr, Sr. U.S. District Judge.1

This is an "Engle-progeny"2 lawsuit by Plaintiff Judith Berger ("Mrs. Berger"), a former smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA, Inc. ("PM USA"). Mrs. Berger, who now suffers from advanced chronic obstructive pulmonary disorder ("COPD"), alleged that PM USA was liable to her under theories of negligence, strict liability, fraudulent concealment, and conspiracy to conceal. Following a trial, the jury returned a verdict for Mrs. Berger on each of these four claims, and awarded compensatory damages in the amount of $6.25 million (with a 40% comparative fault finding).3 (Doc. 92). Later, the jury awarded $20,760,000.14 in punitive damages based on Mrs. Berger's fraudulent concealment and conspiracy-to-conceal claims.4 However, I subsequently granted PM USA judgment as a matter of law with respect to the fraudulent concealment and conspiracy-to-conceal claims, because the evidence failed to establish that Mrs. Berger had relied on PM USA's concealments and misrepresentations about the hazards of cigarette-smoking. (Doc. 155). In the same order, I also vacated the $20.7 million punitive damages award. (Id. at 27, ¶ 2).5

Now pending is PM USA's Renewed Motion for Judgment as a Matter of Law on All Claims (Doc. 135, "Motion"), to which Mrs. Berger has responded (Doc. 146, "Response"). To some extent, PM USA's Motion is moot in light of my previous order granting judgment as a matter of law with respect to the fraudulent concealment and conspiracy-to-conceal claims. Otherwise, I deny PM USA's Motion for the reasons that follow. Because PM USA acknowledges that I have already rejected many of its arguments (Doc. 135 at 1), I discuss most fully PM USA's argument that federal law impliedly preempts Mrs. Berger's negligence and strict liability claims.

I. Background

The facts, except as relevant to the negligence and strict liability claims, need no recounting, as I covered them in detail in my order granting judgment as a matter of law in PM USA's favor (Doc. 55, at 2-6), and are familiar to the parties.

Although the background of the larger Engle saga is important, I merely incorporate the history of the Engle litigation history as the Eleventh Circuit described it in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261, 1265-67 (11th Cir. 2015), vacated 811 F.3d 434 (11th Cir. 2016), Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278, 1281-86 (11th Cir. 2013), and Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 422-25 (Fla.2013). I therefore merely summarize only relevant portions in this order.

The Florida Supreme Court approved giving the following findings from the "Engle Phase I" trial "res judicata" effect:

Douglas, 110 So.3d at 424-25 (alterations omitted) (footnote omitted) (quotation marks omitted) (quoting Engle III, 945 So.2d at 1276-77).

The Florida Supreme Court has clarified that the Phase I findings conclusively established the "`conduct elements' of plaintiffs' tort claims — duty, breach, and `general causation[.]'"6 Graham, 782 F.3d at 1270-71 (quoting Douglas, 110 So.3d at 428). Because the Phase I findings established the "conduct" and "defect" elements of the class members' negligence and strict liability claims, the only issues for the parties to litigate in individual cases were "(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." Douglas, 110 So.3d at 430 (citations omitted).

The tobacco companies have objected to this procedure, arguing that allowing the Phase I findings to establish the conduct and defect elements of the plaintiffs' product liability claims violates due process. See Walker, 734 F.3d 1278, supra. The Eleventh Circuit has rejected that argument, however. Id. at 1288-89 (observing that "R.J. Reynolds had a full and fair opportunity to litigate the issues of common liability in Phase I," and reasoning that no court, including the Supreme Court, has yet to hold that the Due Process Clause entitles a party "to the application of the traditional law of issue preclusion.").

Thus, in this case, my jury instructions followed the post-Walker regime of treating the Engle findings as conclusively establishing the defect and conduct elements of Mrs. Berger's strict liability and negligence claims. (Doc. 94 at 19-24, 26). I instructed the jury that Mrs. Berger was entitled to benefit from the Engle Phase I findings if she proved: (1) her COPD manifested on or before November 21, 1996; (2) she was addicted to cigarettes containing nicotine; and (3) her addiction was a legal cause of her COPD. (Id. at 19). I instructed the jury that if it made each of those findings, then it was to presume, among other things, that: (1) PM USA was negligent; (2) PM USA placed cigarettes on the market that were defective or unreasonably dangerous; (3) nicotine in cigarettes is addictive; and (4) smoking cigarettes causes COPD. (Id. at 23).

The jury determined that Mrs. Berger's COPD manifested on or before November 21, 1996, she was addicted to cigarettes, and her addiction was a legal cause of her COPD. (Doc. 92). The jury awarded compensatory damages as noted earlier, and it apportioned 40% of the fault to Mrs. Berger and 60% of the fault to PM USA. (Id.).

Following the verdict, PM USA renewed its pre-submission motion for judgment as a matter of law on all claims. (See Doc. 85, Doc. 135).

II. Standard

The standard for granting a renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) is the same as the standard for granting the pre-submission motion under Rule 50(a). Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 (11th Cir.2007) (citation omitted). Under that standard, "a district court's proper analysis is squarely and narrowly focused on the sufficiency of evidence." Id. 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." Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir.2004). "The issue is not whether the evidence was sufficient for [the losing party] to have won, but whether the evidence was sufficient for it to have lost." Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1265 (11th Cir.2008).

While I review all evidence of record, I am to draw all reasonable inferences in favor of the nonmoving party. I "must disregard all evidence favorable to the moving party that the jury is not required to believe ... [giving] credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation and quotations omitted).

Moreover, I may not make credibility determinations or weigh the evidence. Id. at 150, 120 S.Ct. 2097; Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1560 (11th Cir.1995). "The line of demarcation which [I am] required to walk is ephemeral: [I] must conclude that an inference is unreasonable without falling into the trap of weighing all the evidence." Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841, 851 (5th Cir.1967); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982). "The standard for determining whether an inference is allowable is generally whether it is a reasonable one, that is, whether it is one that `reasonable and fair-minded men in the exercise of impartial judgment' might draw from the evidence." Daniels, supra, 692 F.2d at 1326 (citation omitted). Ultimately, I am to leave the jury's verdict intact "if there is evidence from which [the jury] ... reasonably could have resolved the matter the way it did." Rodriguez, 518 F.3d at 1264.

III. Discussion

A. Whether Plaintiff Can Rely on the Engle Phase I Findings to Prove Certain Elements of Her Claims

PM USA first contends that allowing Mrs. Berger to rely on the Engle Phase I findings to establish the conduct and defect elements of her negligence and strict liability claims violates due process. (Doc. 135 at 3-11). The Eleventh Circuit rejected this argument, which I deny, in Walker, 734 F.3d 1278, supra. PM USA acknowledges this fact, and makes the argument only to preserve its objection to that result. (Doc. 135 at 1).

PM USA also contends that Mrs. Berger cannot use the Engle Phase I findings to establish the conduct elements of her fraudulent concealment and conspiracy-to-conceal claims. (Doc. 135 at 11-14). This argument is moot as I have granted PM USA judgment as a matter of law with respect to these two intentional tort claims.

B. Whether Plaintiff Waived the Right to Rely on the Engle Phase I Findings

PM USA argues that Plaintiff waived the right to rely on the Engle findings by introducing independent evidence of PM USA's tortious conduct. (Doc. 135 at 14-15). PM USA does not point to any authority supporting the position that an Engle-progeny plaintiff, who introduces any additional evidence concerning the tobacco companies' conduct, thereby waives the right to rely on Phase I findings. "The crux of the waiver doctrine rests upon conduct demonstrating an intent to relinquish a known right." Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 962 (Fla. 1983). The mere act of introducing separate evidence of PM USA's tortious conduct falls far short of constituting an intent to knowingly relinquish the right to rely on the Engle findings. Indeed, PM USA made only a general relevancy objection when Mrs. Berger introduced such additional evidence (Doc. 135-3); it did not argue that Mrs. Berger would waive the right to rely on the Engle findings by doing so. Not having given notice of its contention when it was timely to do so, PM USA, if anyone, and certainly not Mrs. Berger, has committed waiver.

There being no basis for attributing to Mrs. Berger or her counsel an intent to waive reliance on the Engle findings, PM USA's argument is meritless.

C. Whether the Evidence Was Insufficient to Support Plaintiff's Claims

Next, PM USA briefly argues that the evidence was insufficient as a matter of law to support the jury verdicts on any of Mrs. Berger's claims. (Doc. 135 at 15-17). In a separate motion (Doc. 136), PM USA gave more in-depth arguments about why it was entitled to judgment as a matter of law on Mrs. Berger's fraudulent concealment and conspiracy-to-conceal claims. I granted the motion regarding fraudulent concealment and conspiracy-to-conceal because the evidence failed to show that Mrs. Berger relied on PM USA's fraudulent misrepresentations when she continued to smoke. (Doc. 155). Thus, PM USA's argument is moot to the extent it concerns fraudulent concealment and conspiracy-to-conceal.

With respect to Mrs. Berger's non-intentional tort claims, PM USA's argument is cursory and conclusory: it claims Mrs. Berger failed to introduce evidence establishing any element of a negligence claim (i.e., duty, breach of duty, causation, and damages). PM USA also argues that she failed to introduce evidence proving that it sold a defective product, or that such a product proximately caused her injuries.

There is a simple explanation for any lack of proof (which I do not find wanting) at trial: namely, Mrs. Berger enjoyed the preclusive effect of the Engle Phase I findings. See Douglas, 110 So.3d at 428. Thus, Mrs. Berger was not required to independently prove up the duty, breach, defectiveness, or "general causation" elements of her claims. All Mrs. Berger had to prove was "(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." Douglas, 110 So.3d at 430. This is the very procedure the Eleventh Circuit approved in Walker, 734 F.3d 1278, supra.

The record refutes any argument PM USA might try to make that the evidence on causation and damages was so lacking that no reasonable juror could have found for Mrs. Berger.7 Over the course of a six-day trial, the jury heard testimony from five witnesses for the plaintiff, including Mrs. Berger (Doc. 113 at 8-156), Dr. Daniel Layish (her treating pulmonologist) (Doc. 115 at 33-122), Dr. Neil Grunberg (an addiction expert) (Doc. 115 at 148-75, Doc. 117, Doc. 119, Doc. 121, Doc. 123), and two other experts.

Dr. Grunberg gave extensive testimony about how nicotine is addictive and creates dependence. Mrs. Berger's testimony confirmed that she was addicted to cigarettes, as she described a habit of smoking a pack-and-a-half of cigarettes a day for nearly forty years, during which she experienced two failed attempts to quit. Mrs. Berger also described how COPD, first diagnosed after nearly four decades of smoking, affected overall her health and quality of life. Her own presence in the courtroom — wheelchair bound and tethered to an oxygen tank — vividly confirmed her testimony and that of her other witnesses. Moreover, Dr. Layish testified that Mrs. Berger's smoking habit "absolutely" caused her COPD, and that he had ruled out other potential causes of the disease. (Doc. 115 at 46-48). There was no failure of proof as to specific causation and damages.

D. Whether Federal Law Preempts Plaintiff's Claims

PM USA argues that the Federal Cigarette Labeling and Advertising Act ("the Labeling Act"), 15 U.S.C. §§ 1331 et seq., preempts Mrs. Berger's claims to the extent she relies on evidence "relating to post-1969 advertising and labeling." (Doc. 135 17-18). Mrs. Berger introduced some evidence of post-1969 advertising and labeling in support of her fraudulent concealment and conspiracy-to-conceal claims. Because I granted PM USA judgment as a matter of law with respect to those two claims though, that argument is moot.8

The main issue is whether federal law impliedly preempts Mrs. Berger's negligence and strict liability claims. (Id. at 18-19). Specifically, PM USA invokes a form of conflict preemption known as "obstacle preemption":

(Doc. 135 at 18-19).

I am well aware that the now vacated, now non-binding panel opinion in Graham, 782 F.3d 1261, endorsed PM USA's argument. I would prefer to await the en banc opinion in that case before ruling on the instant motion. However, due to unusual and compelling circumstances, I have determined I should address the issue now.9

I begin with the panel decision in Graham, which concluded that federal law impliedly preempts Engle-progeny negligence and strict liability claims:

782 F.3d at 1282.

Thus, the panel found that the Labelling Act preempted the Engle plaintiffs' state law product liability claims because they stood as an obstacle to the Act's objectives and purposes. Congress, in the panel's view, sought via the Act to guarantee that cigarettes would remain on the market in all fifty states regardless of whatever views the states might variously have had towards the unimpeded sale of cigarettes.

Like other courts in Florida, e.g. R.J. Reynolds Tobacco Co. v. Marotta, 182 So.3d 829, 831-34 (Fla. 4th DCA 2016), and around the country, e.g., Hunter v. Philip Morris USA, Inc., 582 F.3d 1039, 1046-48 (9th Cir.2009); Pennington v. Vistron Corp., 876 F.2d 414, 417-23 (5th Cir.1989), which have rejected preemption claims, I find entirely unpersuasive PM USA's arguments and the panel's rationale that somehow Congress, when it decided not to ban cigarette sales in toto, it thereby implicitly preempted state law product liability.

1. The Inherent Characteristics of Cigarettes Were not the Sole Basis for Phase I Common Law Liability

PM USA bases its obstacle preemption argument on the contention that Mrs. Berger seeks to impose liability "on the inherent dangers of cigarettes." (Doc. 135 at 19) (emphasis added); see also Graham, 782 F.3d at 1273. According to the panel in Graham, basing liability on the properties inherent to all cigarettes makes the Phase I verdict a functional "ban," which Congress allegedly foreclosed the states from enforcing. 782 F.3d at 1282. PM USA evidently believes that the Phase I findings were "premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act." Id. at 1285 (emphasis in original).

PM USA's characterization of the Engle findings is hard to reconcile with what occurred at the Phase I trial, taking into account the Engle plaintiffs' allegations, the evidence presented in Phase I, the jury instructions, and the structure and content of the Phase I verdict itself. To begin with, the Engle plaintiffs did not bring allegations against every tobacco company that sold cigarettes in Florida, which would have made little sense if their theory was that all cigarettes are inherently dangerous. (See Amicus Brief of John S. Mills, et al., at 23, 11th Cir. Case No. 13-14590, filed May 4, 2015) ("Mills Br.").

Indeed, the Engle plaintiffs sought to prove liability based on more than just the qualities inherent in all cigarettes. For instance, the plaintiffs claimed that the named defendants "manipulated the level of nicotine in their tobacco products so as to make these products addictive." Mills Br. at 23 (citing Engle Complaint at 8-9) (emphasis added). The plaintiffs also alleged that the defendants failed to: (1) use available safer alternative designs and (2) warn consumers of what they had done. Mills Br. at 23 (citing Engle Complaint at 36-37, 50-51). While the jury heard a mixture of evidence on both brand-specific defects and on the addictive and hazardous properties of cigarettes, there was across-the-board evidence that each of these defendants did more than merely manufacture cigarettes. As the Phase I trial judge explained in denying the tobacco companies' motion for a directed verdict,

Engle v. R.J. Reynolds Tobacco, 2000 WL 33534572, at *2 (Fla. 11th Cir.Ct.2000) ("Engle F.J.").

While nicotine addiction and some diseases might be inherent to tobacco, the conduct described above, like manipulating nicotine delivery, is not an inherent part of manufacturing cigarettes.

The Phase I Verdict Form's instructions on negligence reinforce the conclusion that the jury based its Engle findings on more than just the inherent characteristics of cigarettes. The negligence instruction asked the jurors to determine whether each defendant "failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances." (Phase I Verdict at 10).10

The instruction presupposed that a cigarette manufacturer could place cigarettes on the market without being inherently negligent. See Mills Br. at 26. The jury answered "yes" for each defendant for every time frame (except Brooke Group) (Phase I Verdict at 10-11), but that did not mean the jury grounded its Phase I findings on nothing other than the intrinsic properties of cigarettes. I presume that a jury followed its instructions. E.g., Evans v. Michigan, ___ U.S. ___, 133 S.Ct. 1069, 1080, 185 L.Ed.2d 124 (2013). Applying that presumption here, I presume the Phase I jury first considered the existence of "a reasonable cigarette manufacturer" and how such a company would behave "under like circumstances." I also presume that, in light of that benchmark, the Phase I jury then concluded that the seven defendants listed in the Phase I verdict form failed to exercise that degree of care. Thus, what the jury actually decided, as reflected in the Phase I verdict, is that the named defendants failed to exercise the degree of care of a reasonable cigarette manufacturer, not that all cigarette manufacturers necessarily, and without due regard for the safety of their products, are or always would be negligent per se.

Likewise, the product liability instruction asked the Phase I jurors to determine whether each defendant "place[d] cigarettes on the market that were defective and unreasonably dangerous." (Phase I Verdict at 2). The final six words qualify the word "cigarettes," and they presuppose that not every cigarette is "defective and unreasonably dangerous." The jury generally determined that cigarette-smoking causes 20 different diseases, and that nicotine is addictive (id. at 1-2), so if strict liability were founded merely on those properties, the strict liability question would simply have asked whether each defendant "place[d] cigarettes on the market" — period. But the strict liability inquiry did not end there. The court asked the jury to determine discretely whether each of the seven defendants "place[d] cigarettes on the market that were defective and unreasonably dangerous." The jury determined that each defendant did. (Id. at 2-3). Assuming the jury followed its instructions, what it actually decided is that each defendant's particular cigarettes were defective, not that all cigarettes are inherently defective. Accordingly, I reject PM USA's characterization of the Phase I liability findings as being based on nothing more than the inherent properties of cigarettes.

2. Even if the Phase I Findings Were Founded on the Inherent Characteristics of Cigarettes, Engle Verdicts Still Would Not Function as a "Ban"

Even if the jury based its Engle verdicts on the inherent defectiveness of all cigarettes and the per se negligence of all cigarette manufacturers, its findings would not prohibit the sale of cigarettes. See Marotta, 182 So.3d at 832 ("[T]ort verdicts... do not always rise to a state law standard; sometimes they may only motivate an optional decision for a defendant to behave differently[.]") (quotations marks and citation omitted).

Had the Phase I verdict created a ban on cigarette sales, those sales would have ended two decades ago. Cigarette makers want to eat their cake and have it too. Trying to erect a purported ban on cigarette sales to evade liability, they continue to profit from their products, feeling, as they do so, no real-world constraint or restriction from the Phase I verdict. Res ipsa loquitor.

3. Even if Engle-Progeny Negligence and Product Liability Verdicts Amounted to a Ban on Cigarettes, such a Ban is not Impliedly Preempted

Lastly, even if Engle product liability verdicts embody a judgment that all cigarettes are defective and that selling cigarettes is an inherently negligent act, federal law does not impliedly preempt Florida from enforcing such a functional ban. Although the federal government has chosen to regulate aspects of the cigarette industry while stopping itself short of banning cigarettes, it did not intend to force the states to accept that cigarettes must remain on their markets. Because I cannot infer such a heavy-handed intent from Congress's enactments over the years, I do not conclude that Engle product liability actions "stand as an obstacle" to the objectives of Congress.

Under the Supremacy Clause, federal law is "the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI. Thus, state laws that "interfere with, or are contrary to" federal law "must yield." Gibbons v. Ogden, 22 U.S. 1, 211, 9 Wheat. 1, 6 L.Ed. 23 (1824). Congress can directly preempt state law through an express preemption provision. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). However, federal law can impliedly preempt state law in the absence of an express preemption provision where there is a conflict between the two laws. One way in which such a conflict arises is where a state law "stands as an obstacle to the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). This is the doctrine of "obstacle preemption," which is the theory PM USA advances here. (Doc. 135 at 18-19).

The Supreme Court has stated 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, 563 U.S. 582, 131 S.Ct. 1968, 1985, 179 L.Ed.2d 1031 (2011) (quotation marks omitted). "Implied preemption analysis does not justify a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives." Id. Nor should preemption "be inferred from every Congressional enactment that overlaps [with] state regulation." Pennington, 876 F.2d at 417.

Instead, there is a considerable presumption against preemption where "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, 131 L.Ed.2d 695 (1995). That presumption is a "cornerstone[]" of preemption jurisprudence. Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). A court begins "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 v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (emphasis added). The Supreme Court's preemption jurisprudence recognizes that state regulation enjoys "historic primacy" when it comes to "matters of health and safety." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The States have "great latitude 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. 2240 (internal quotation marks and citation omitted). Therefore, a court should not attribute to Congress the intent to "cavalierly preempt state-law causes of action" touching on matters of public health. Id. at 485, 116 S.Ct. 2240. Indeed, a state's power to regulate matters of health and safety encompasses the power to regulate cigarettes, or even to ban their sale entirely. Austin v. Tennessee, 179 U.S. 343, 348-49, 21 S.Ct. 132, 45 L.Ed. 224 (1900).

Accordingly, if PM USA is to prove that Congress impliedly intended to foreclose the states from enforcing a legal duty that would ban cigarette sales, it has "a tough row to hoe." Graham, 782 F.3d at 1275. "In assessing the extent to which state law stands as an obstacle to the ... purposes and objectives of Congress, [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." Id. at 1276 (quotation marks and citations omitted). Because "the purpose of Congress is the ultimate touchstone in every pre-emption case," Lohr, 518 U.S. at 485, 116 S.Ct. 2240, the first step is to ascertain the nature of the federal interest, Graham, 782 F.3d at 1276 (citation omitted).

Over the past five decades, Congress has enacted various laws regulating certain aspects of the cigarette industry, the most notable being labeling and advertising. See Graham, 782 F.3d at 1276-79. In its first move to address the health effects of cigarettes, Congress enacted the "Labeling Act" in 1965, Pub. L. No. 89-92, 79 Stat. 282 (1965), which sought to "establish a comprehensive Federal program to deal with cigarette labeling and advertising." Graham, 782 F.3d at 1277 (quoting Pub. L. No. 89-92, 79 Stat. 282, § 2). The Labeling Act required cigarette packages to display a warning that cigarette smoking may be hazardous to the consumer's health. Id. Congress's statement of policy reflected that it sought to balance two competing interests: first, ensuring that the public learned about the dangers of cigarette smoking "by inclusion of a warning to that effect on each package of cigarettes," and second, protecting commerce and the national economy, and ensuring that it was "not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations." 15 U.S.C. § 1331. After 1969, the law expressly preempted any "requirement or prohibition based on smoking and health" from "be[ing] imposed under State law with respect to the advertising and promotion of any cigarettes" that were packaged and labeled in conformity with the provisions of the Labeling Act. 15 U.S.C. § 1334(b); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520-24, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Thus, the Labeling Act preempted common law claims based on inadequate warnings. Cipollone, 505 U.S. at 530-31, 112 S.Ct. 2608. However, it did not preempt other common law claims beyond the scope of the preemption clause, id. at 517, 112 S.Ct. 2608, such as defective design claims, id. at 523, 112 S.Ct. 2608.11

Since the Labeling Act's passage, Congress has refined consumer warnings and expanded regulation into other areas, such as by regulating smokeless tobacco through the Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub. L. No. 99-252, 100 Stat. 30 (1986). Overall though, "Congress's basic goals have remained largely unchanged." Graham, 782 F.3d at 1277. Congress has known that nicotine is addictive and that cigarette smoke contains carcinogens, but instead of banning cigarettes, it has developed a regulatory scheme concerned with advertising, labeling, and sales. Id. at 1277-79.

The question is whether this combination of knowledge and partial regulation demonstrates that Congress had the "clear and manifest purpose" to preempt a classic exercise of a state's police powers: banning cigarette sales. See Rice, 331 U.S. at 230, 67 S.Ct. 1146. I think not. Deliberate inaction can support an inference of preemption where Congress refrains from acting in an area it otherwise regulates so comprehensively that it occupies the field (i.e., "field preemption," which PM USA does not assert here). Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). In other contexts though, inaction alone cannot support an inference of preemption because "otherwise, deliberate federal inaction could always imply pre-emption, which cannot be." Id. Thus, the Supreme Court has refused to find implicit preemption of state-law product liability claims just because the basis for such laws was a duty that a federal body chose not to impose. Williamson v. Mazda Motor of America, Inc., 562 U.S. 323, 330-37, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011) (Department of Transportation's decision not to require installation of shoulder-and-lap belts did not preempt tort suit based on manufacturer's failure to do so); Wyeth, 555 U.S. at 565-67, 573-81, 129 S.Ct. 1187 (although Food and Drug Administration refrained from requiring drug manufacturer to warn about the dangers of a certain injection method, state-law negligence and strict liability claims could proceed on that basis; obstacle preemption not a bar).

Indeed, inferring that a state-law prohibition frustrates the objectives of Congress whenever Congress chooses to regulate a product or activity, but stops itself short of enacting a complete ban, would represent a breathtaking expansion of obstacle preemption that would threaten to contract greatly the states' police powers. Micah Berman, Eleventh Circuit finds Tobacco Suits Preempted: Trouble for Future Public Health Regulations?, Yale J. on Reg., Apr. 19, 2015.12

If Congress knew about the addictive and hazardous properties of cigarettes, it also surely knew about widespread tort litigation dealing with tobacco's ravaging effects on health. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988) ("We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts."). Indeed, the premise for some of these lawsuits was "that cigarettes are unreasonably dangerous per se." Pennington, 876 F.2d at 417. Yet Congress has never manifested a preemptive impulse toward state law remedies of which it presumably knew when it acted.

As a provision in the Family Smoking Prevention and Tobacco Control Act of 2009 ("TCA") states:

21 U.S.C. § 387p(b).

Congress has typically limited itself to preempting the states' power to impose their own requirements concerning such things as labeling, advertising, and product adulteration. 15 U.S.C. §§ 1334, 4406; 21 U.S.C. § 387p(a)(2); see also Cipollone, 505 U.S. at 523-31, 112 S.Ct. 2608. Beyond that though, Congress was silent on preemption, despite evidently being aware of tobacco litigation. Congress's

Wyeth, 555 U.S. at 575, 129 S.Ct. 1187 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989)) (third alteration in original).

"If Congress thought state-law tort suits posed an obstacle to its objectives," and if one of Congress's objectives was to foreclose the states from prohibiting cigarette sales, "it surely would have enacted [a broader] express pre-emption provision at some point" over the course of decades of tobacco lawsuits. Wyeth, 555 U.S. at 574, 129 S.Ct. 1187.13 Instead, Congress expressly preempted some state-law requirements affecting tobacco, but it did not expressly preempt lawsuits based on broader common law duties governing cigarettes. Cipollone, 505 U.S. at 523, 112 S.Ct. 2608. Indeed, PM USA does not contend that Congress expressly did so. (See Doc. 135 at 18-19).

I recognize that, as a general proposition, the "lack of express preemption `does not bar the ordinary working of conflict pre-emption principles.'" Graham, 782 F.3d at 1275 (emphasis in original) (quoting Geier, 529 U.S. at 869, 120 S.Ct. 1913). However, in the specific context of tobacco, the Supreme Court has stated that

Cipollone, 505 U.S. at 517, 112 S.Ct. 2608; but see Altria Group, Inc. v. Good, 555 U.S. 70, 87-90, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (applying obstacle preemption analysis to the Labeling Act, without acknowledging Cipollone in that part of the discussion, but finding plaintiff's deceptive practices claim was not preempted).

The Supreme Court has thus concluded that the preemptive scope of the Labeling Act gives a "reliable indicium of congressional intent with respect to state authority," Cipollone, 505 U.S. at 517, 112 S.Ct. 2608, and as such, matters not expressly preempted, like state-law obligations to avoid marketing defectively designed cigarettes, are not precluded, id. at 523, 112 S.Ct. 2608.

Putting Cipollone aside, I still consider whether a common-law ban on cigarette sales presents an obstacle to the objectives of Congress. Although the plain wording of an express preemption clause "`necessarily contains the best evidence of Congress' preemptive intent,'" Whiting, 131 S.Ct. at 1977 (quoting CSX Transp, Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)), a statute's anti-preemption clause (or "savings clause") will also inform whether a state-law requirement is an obstacle to the objectives of Congress. Id. at 1981-85. If a state-law requirement falls within the scope of an anti-preemption clause, it cannot be said to stand as an obstacle to Congress achieving its objectives, because Congress has already determined that such a state-law requirement is acceptable. See id. at 1981 ("Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.").

PM USA ignores that each time Congress has regulated certain aspects of the tobacco industry, it has expressly preserved broad state authority to regulate, or even to entirely ban cigarette sales. When Congress passed the Comprehensive Smokeless Tobacco Health Education Act of 1986, for example, it stated that "[n]othing in this chapter shall relieve any person from liability at common law or under State statutory law to any other person." Pub.L. No. 99-252, § 7(c), 100 Stat. 34 (1986) (codified at 15 U.S.C. § 4406(c)). Even more directly, when Congress passed the TCA as recently as 2009, it broadly stated:

21 U.S.C. § 387p (emphases added).14

Congress thus made plain what one would otherwise presume: that the states retained broad authority to regulate cigarettes, and specifically, to ban their sale, distribution, possession, or use outright. Moreover, Congress expressly stated that it did not intend to "affect any action or the liability of any person under the product liability of any State." This indicates that Congress did not intend to impair either preexisting tort actions or prospective product liability claims. Therefore, even assuming that Engle product liability verdicts effectively ban all cigarette sales, Congress has expressed its willingness to tolerate both prohibitions and product liability suits alike. In turn, because Congress has declared that these things are acceptable, one cannot view Engle product liability actions as obstacles to the objectives and purposes of Congress. See Whiting, 131 S.Ct. at 1981.15

That Congress would preserve the authority of the States to ban cigarettes should be no surprise, because it merely restates the status quo since the turn of the twentieth century. In Austin v. State of Tennessee, 179 U.S. 343, 21 S.Ct. 132, supra, the Supreme Court acknowledged that cigarettes were "a legitimate article of commerce" sanctioned by federal law, id. at 345, 21 S.Ct. 132, but that the States nevertheless had authority to ban their sale, id. at 348-50, 21 S.Ct. 132. The Court stated:

Id. at 348-49, 21 S.Ct. 132.

Accordingly, state-law prohibitions on cigarette sales can stand side-by-side with the fact that Congress has tolerated cigarettes and purposefully refrained from banning them.

PM USA cites FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, and Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, for the proposition that federal law impliedly preempts Engle product liability claims (Doc. 135 at 18). Both cases are distinguishable. In Brown & Williamson, the Supreme Court held "that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products." 529 U.S. at 126, 120 S.Ct. 1291 (emphasis added). The Supreme Court explained that if FDA had authority to regulate tobacco products, it would have been required by statute to ban their sale. Id. at 133-35, 120 S.Ct. 1291. FDA could not have had jurisdiction over tobacco, the Supreme Court reasoned, because "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. 1291. Brown & Williamson is not a case about preemption of state law. It is, rather, a case about whether Congress delegated authority to an executive agency to promulgate rules about and regulations relating to tobacco. Such delegation implicates congressional goals for what it wanted federal law to achieve or not to achieve.

Preemption, in contrast, relates to principles of federalism. Moreover, Brown & Williamson's discussion of congressional objectives with respect to cigarettes, id. at 143-56, 120 S.Ct. 1291, supports only the unremarkable contention that Congress itself did not wish to remove cigarettes from the national market. It does not support the more extreme inference that Congress intended to displace state police powers in regulating cigarettes.16

Geier v. Am. Honda Motor Co. is also distinguishable. In that case, the plaintiff suffered injuries from a car accident and sued the manufacturer for defective design. The basis for that claim was that Honda had not equipped the vehicle with airbags. 529 U.S. at 865, 120 S.Ct. 1913. "The basic question ... [was] whether a common-law `no airbag' action ... actually conflicts with [Federal Motor Vehicle Safety Standard] 208." Id. at 874, 120 S.Ct. 1913.

The Supreme Court held that it did. Id. FMVSS 208 "set[] a performance requirement for passive restraint devices and allow[ed] manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement." Id. at 878, 120 S.Ct. 1913. The Court found that the objective of FMVSS 208 was to "bring about a mix of different devices introduced gradually over time," and that DOT specifically did not want to compel manufacturers to include airbags in all vehicles. See id. at 874, 879, 120 S.Ct. 1913. A common-law duty to install airbags in every vehicle would have undone DOT's policy, which years of experience and expertise had informed. Id. at 881-82, 120 S.Ct. 1913.

In arriving at its conclusion, the Supreme Court traced the "convoluted" history of FMVSS 208 as it evolved throughout the 1960's, 1970's, and 1980's in response to industry feedback and public backlash against various efforts to require certain passive restraint devices. See id. at 875-77, 120 S.Ct. 1913. In light of that history, and in light of specific considerations that influenced DOT's decision, id. at 877-78, 120 S.Ct. 1913, the Supreme Court found that it was DOT's deliberate, carefully-considered objective not to require airbags in every vehicle.

Importantly, the Court "place[d] some weight upon DOT's interpretation of FMVSS 208's objectives and its conclusion, as set forth in the Government's brief, that a tort suit such as this one would stand as an obstacle to the accomplishment and execution of those objectives." Id. at 883, 120 S.Ct. 1913 (citation omitted) (internal quotation marks and alterations omitted). The Court noted several factors warranting deference to the DOT's expert view on the matter: "Congress has delegated to DOT authority to implement the statute; the subject matter is technical; and the relevant history and background are complex and extensive. The agency is likely to have a thorough understanding of its own regulation and its objectives and is `uniquely qualified' to comprehend the likely impact of state requirements." Id. (citation omitted). The Court stated it had "no reason to suspect that the Solicitor General's representation of DOT's views reflects anything other than the agency's fair and considered judgment on the matter." Id. (quotation marks and citation omitted).

Here, in contrast to Geier, the subject matter is not as technical, and there is no expert agency advising me that a de facto common-law ban on cigarette sales would stand as an obstacle to a congressional objective. To the contrary, Congress has spoken, and it has consistently expressed, and never declared expressly otherwise, that states may go so far as to enforce rules prohibiting the sale of cigarettes. 21 U.S.C. § 387p(a)(1).

The past several decades have seen Congress choosing to regulate various aspects and activities of the cigarette industry. But Congress has not turned to outright prohibition. Congress has also expressly preempted some state laws, but only to the extent those laws were limited in scope to such things as labeling and advertising. That being so, the most reasonable inference I can draw from the course of congressional activity is that Congress itself has not decided to outlaw cigarettes. I cannot draw the more radical inference that Congress also intended to foreclose the states from regulating cigarettes more extensively, even to the point of banning them.

I therefore reject PM USA's argument that federal law impliedly preempts Mrs. Berger's negligence and strict liability claims.

E. Whether Plaintiff is Entitled to Seek Punitive Damages

Finally, PM USA argues that Mrs. Berger is not entitled to punitive damages as a matter of law. (Doc. 135 at 19-25). This argument is moot because I vacated the punitive damages award when I granted PM USA judgment as a matter of law with respect to Mrs. Berger's fraudulent concealment and conspiracy-to-conceal claims. (Doc. 155 at 27, ¶ 2). Mrs. Berger has filed a Rule 60(b) motion in an effort to revive the punitive damages award. (Doc. 190). That motion is pending, and PM USA may renew its argument if punitive damages are reinstated in some way.

Conclusion

For the foregoing reasons, it is hereby

ORDERED THAT

So ordered.