Aycock v. R.J. Reynolds Tobacco Co.
| Citation | 769 F.3d 1063 |
| Decision Date | 16 October 2014 |
| Docket Number | No. 13–14060.,13–14060. |
| Parties | Thelma AYCOCK, as Personal Representative of the Estate of Richard Aycock, Plaintiff–Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant–Appellant, Philip Morris USA, Inc., et al, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Kathryn E. Barnett, Kenneth S. Byrd, Lieff Cabraser Heimann & Bernstein, LLP, Nashville, TN, Janna M. Blasingame, Stephanie J. Hartley, Richard Lantinberg, Norwood Wilner, The Wilner Firm, PA, Charles Easa Farah, Jr., Eddie Easa Farah, Farah & Farah, PA, Jacksonville, FL, Elizabeth Joan Cabraser, Jordan S. Elias, Richard M. Heimann, Sarah Robin London, Scott Purington Nealey, Robert J. Nelson, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Jennifer Gross, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, for Plaintiff–Appellee.
Stephanie Ethel Parker, John M. Walker, John F. Yarber, Jones Day, Laura Christine Lawson, Jack Williams, Womble Carlyle Sandridge & Rice, LLP, Atlanta, GA, Randal S. Baringer, Christopher Allen Kreiner, Aulica Lin Monroe, Womble Carlyle Sandridge & Rice, PLLC, Winston–Salem, NC, Paul D. Clement, Bancroft, PLLC, Gregory G. Katsas, Jones Day, Washington, DC, Jeffrey Lee Furr, King & Spalding, LLP, Charlotte, NC, Andrew J. Knight, II, Robert B. Parrish, J.W. Prichard, Jr., Joseph Matthew Rabil, David C. Reeves, Thomas Cleveland Sullivan, Jeffrey Alan Yarbrough, Moseley Prichard Parrish Knight & Jones, Jacksonville, FL, Charles Richard Allan Morse, Jones Day, New York, NY, Morgan Earnest Persinger, Womble Carlyle Sandridge & Rice, LLC, Raleigh, NC, for Defendant–Appellant.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:09–cv–10928–RBD–JBT.
Before ED CARNES, Chief Judge,
Opinion
Defendant R.J. Reynolds Tobacco Company (Reynolds) appeals the district court's final judgment following a jury verdict awarding compensatory damages in the amount of $5.9 million to the plaintiff, Thelma Aycock (Thelma), for her “loss of support and services, loss of companionship and protection, and her mental pain and suffering, as a result of her husband's lung cancer
and death,” the legal cause of which was attributed to his addiction to smoking cigarettes manufactured by the defendant. Reynolds asks this court to reverse the judgment against it and order a new trial, alleging the district court erred in excluding evidence of the deceased's alcohol abuse as it related to his death, and because the denial of a continuance unfairly infringed on Reynolds' right to counsel of its choice. For the following reasons, we REVERSE and REMAND for a new trial.
Thelma, a Florida resident, brought this wrongful death action on behalf of her husband, Richard Aycock (Richard), under the Florida Wrongful Death Act. She alleged that her husband contracted lung cancer
as a result of his addiction to cigarettes manufactured by Reynolds and others who were later dropped or dismissed from the suit. Raising various claims under Florida law, she sought compensatory and punitive damages from the manufacturers of the cigarettes Richard had smoked for the duration of their marriage.
The Aycocks were married for over fifty years until Richard's death in 1996. Prior to their marriage, Richard began smoking and gradually increased the amount of cigarettes he smoked daily throughout the rest of his life. From the mid–1980s until his death, he smoked up to four packs of cigarettes per day. He engaged in chain-smoking, and woke up in the middle of the night to smoke. At trial, Thelma used this behavior as proof of Richard's addiction to nicotine.
In addition to his smoking, Richard also had a history of alcohol abuse that allegedly had affected his marriage. At trial, it was established that Richard drank while married to Thelma, and that she did not approve of his drinking. She claimed his “[getting] a little tipsy” made her angry. In a pre-trial deposition, she admitted that she once left him and took their children out of the home because of his drinking. Their son, Ronald, called his dad an alcoholic, and said that Richard's alcoholism affected his work habits. Ronald also detailed an occasion on which Richard tried to strike him while under the influence of alcohol. The birth of Richard's first grandchild prompted him to attend Alcoholics Anonymous meetings for a time so that he could stop drinking. However, when questioned at trial, Thelma denied that his alcohol abuse affected their marriage.
In 1996, Richard was admitted to the hospital complaining of confusion, disorientation, and impairment of equilibrium. He was then diagnosed with lung cancer
that had metastasized to his brain. Later that year, he died. The cause of death listed on his death certificate was lung cancer ; the metastasis to the brain was not mentioned. The hospital recommended a pulmonary biopsy to confirm lung cancer
, but it was refused by the family.
Richard was originally a member of a class represented in Engle v. Liggett Group, Inc., a smokers' class action lawsuit. The Florida Supreme Court decertified the class in Engle, citing the infeasibility of continued class action treatment because “individual issues such as legal causation, comparative fault, and damages predominate.”Engle v. Liggett Group, Inc., 945 So.2d 1246, 1268 (Fla.2006) (per curiam). But the court authorized subsequent individual actions in which the Engle jury's determinations on causation, negligence, breach of warranty, concealment, and conspiracy findings would have “res judicata effect.” Id. at 1269. In the wake of the decertification, Thelma filed this wrongful death suit. Since this case was an Engle -progeny case, the Engle jury's findings had res judicata effect in this case.
The trial was originally scheduled to begin on April 30, 2012. However, five days before trial, the hospital where Richard was treated prior to his death discovered 94 pages of previously undisclosed medical records pertaining to his case. Thus, the parties to the trial sought—and were granted—a continuance of the trial. The trial was rescheduled for March 18, 2013. However, five days before trial, one of Thelma's expert witnesses suffered an injury that would have prevented him from testifying. Thelma sought another continuance, which the court granted.
The trial was rescheduled for April 8, 2013. However, the trial's new date created scheduling conflicts for Reynolds' lead counsel, Jeffrey L. Furr, who had trials scheduled from mid-April until July 2013. These conflicts included a tobacco class action trial in West Virginia state court and four other Engle progeny cases. In order to preserve its right to the lead counsel of its choice, Reynolds moved for a further continuance until August 2013, so that Furr could participate as Reynolds' chief counsel. However, the court denied this motion, and the trial proceeded as scheduled.
Before the trial began, the court granted Thelma's motion in limine seeking to exclude evidence of Richard's alcohol consumption. Specifically, Thelma took issue with parts of the testimony of two expert witnesses for Reynolds. First, she noted that Dr. Brian Peterson's report specifically claimed that (1) additional clinical and diagnostic data was needed to determine whether Richard had cancer
; (2) additional data was needed to determine the cause of Richard's death; and (3) due to multiple risk factors, the etiology of Richard's cancer cannot be determined. Since Dr. Peterson did not mention any relationship to alcohol consumption, Thelma argued that Richard's alcohol use was irrelevant to determining what caused his death. She also noted that Reynold's addiction expert, Dr. Daphne Dorce, noted that there was no link between Richard's ability to stop drinking and his ability to stop smoking. Thelma alleged that, because Richard's history of alcohol use was irrelevant to the issues present and because its admission would be highly and unfairly prejudicial, it should be excluded from trial.
The court also enforced the motion in limine consistently. No discussion of Richard's alcohol use in the context of causation was allowed. However, it did allow evidence of Richard's alcohol abuse to be used for the discussion of the Aycocks' relationship with regard to compensatory damages. But even in this context, the testimony was limited to discussing the effects of Richard's alcohol use on their marriage in the most general terms.
The diagnosis and cause of death were contentious issues at trial. Thelma produced an expert who interpreted and confirmed the hospital's diagnosis of lung cancer
that had metastasized to Richard's brain. However, Reynolds cited additional documents from Richard's final hospitalization indicating that his illness could have been the result of multiple causes, including lung cancer, melanoma, or “severe pneumonia.” Reynolds used the lack of the pulmonary biopsy, resulting from the family's refusal of further treatment, to attack the certainty of the hospital's diagnosis. The defense also produced Dr. Peterson, who, as stated above, was willing to testify that more data was needed to know if Richard had cancer, whether that cancer was the cause of his death, and that the origin of the cancer could not be determined due to multiple risk factors.
The jury returned a verdict for Thelma. It found that lung cancer
caused by cigarette smoking was a legal cause of Richard's death, and that his addiction to smoking cigarettes containing nicotine and manufactured by Reynolds was also a legal cause of his death. It awarded $5.9 million in compensatory damages, and allocated 72.5% of the fault to Reynolds, and 27.5% to Richard. In accordance with the verdict, the court granted a judgment for the plaintiff in the amount of $4,277,500 against...
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