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From Products Liability Law Daily, October 17, 2014

$5.9M Engle verdict snuffed in light of smoker’s alcohol abuse

By John W. Scanlan, J.D.

A $5.9 million verdict against R.J. Reynolds Tobacco Co. was reversed by the U.S. Court of Appeals for the Eleventh Circuit and remanded for a new trial because the district court improperly excluded evidence of the smoker’s alcohol abuse related to his death (Aycock v R.J. Reynolds Tobacco Co., October 16, 2014, Siler, E.).

Background. Richard Aycock smoked for more than 50 years until his death in 1996, smoking up to four packs per day from the 1980s on. His wife Thelma Aycock stated that he chain-smoked and woke up in the middle of the night to smoke. He also had a history of alcohol abuse; Thelma said that she once took the children and left him because of his drinking, and his son said that Richard was an alcoholic. In 1996, the smoker was admitted to a hospital while experiencing confusion, disorientation, and impairment of equilibrium, and was diagnosed while at the hospital with lung cancer that had metastasized to his brain. After his death, his family refused the hospital’s offer to perform a pulmonary biopsy to confirm lung cancer, but his death certificate listed lung cancer as the cause of his death and did not mention the brain metastasis.

Thelma Aycock filed a wrongful death lawsuit against R.J. Reynolds (along with other defendants that were subsequently dismissed or dropped from the suit), asserting that his death was caused by his addiction to smoking the company’s cigarettes. She moved to exclude portions of the testimony of two of the company’s experts discussing his alcohol use in the context of causation, asserting that there was no link between his ability to stop drinking and his ability to stop smoking, and that his alcohol use was irrelevant to the issues present and evidence of it would be unfairly prejudicial. The court granted her motion, and allowed discussion of his alcohol use only in the context of compensatory damages.

The Eleventh Circuit noted that the diagnosis and cause of death were “contentious” issues at trial. An expert for Thelma Aycock agreed with the hospital’s diagnosis as lung cancer metastasizing to the brain, but R.J. Reynolds presented documents from his final hospitalization indicating that his death could have resulted from multiple causes, including lung cancer, melanoma, and severe pneumonia. The company pointed out that there had been no final biopsy to confirm the diagnosis, and proffered an expert who would testify that more data was needed to know if he had cancer and whether cancer was the cause of his death, and also that the cause of his cancer could not be determined due to multiple risk factors.

The jury found in Mrs. Aycock’s favor, awarding her $5.9 million in compensatory damages. R.J. Reynolds asked for the judgment to be reversed and a new trial ordered, arguing that the district court erred in excluding evidence of Richard Aycock’s alcohol abuse as related to his death, and also argued that the court’s refusal to grant it a continuance infringed upon its right to have the counsel of its choice. The district court refused, and R.J. Reynolds appealed.

Burden of proof. The district court’s exclusion of evidence of the decedent’s alcohol abuse in connection to his death improperly shifted the burden of proof on the issue of causation from the widow to the company, the Eleventh Circuit ruled. Under Florida law governing negligence, while a plaintiff must prove a defendant’s negligence more likely than not caused an injury, a defendant is not prohibited from offering evidence of alternate possible explanations because it only needs to convince the trier of fact that its alleged negligence was not the legal cause of the injury. Furthermore, the district court improperly required testimony offered by R.J. Reynolds on alternative causes of his death to meet a “reasonable medical certainty” standard rather than the “more likely than not” standard.

Impact on defense. By excluding R.J. Reynolds’ evidence, the district court “greatly hindered” the company’s defense, the Eleventh Circuit concluded. Evidence of the decedent’s alcohol abuse was relevant to the cause of his death because it increased the likelihood that his death was caused by something other than lung cancer, and this evidence could have been used to rebut the widow’s case. It was also relevant in determining comparative fault, but the company was denied the ability to argue that the smoker’s alcohol abuse played a substantial role in his death, with the Eleventh Circuit noting that his alcohol use contributed to his smoking because alcohol consumption has “a negative effect on smoking cessation.” Finally, the company was unable to rebut the widow’s testimony that his alcohol abuse had not affected their marriage, which played an important role in the jury’s determination of damages.

The court found that admitting evidence of his alcohol abuse likely would not be unfairly prejudicial. The alcohol abuse had been proven, it was directly relevant to various aspects of the case, and the jury already was aware of his alcoholism as a result of the cross-examination of the widow.

The case number is 13-14060.

Attorneys: Kathryn E. Barnett (Lieff Cabraser Heimann & Bernstein, LLP), Janna M. Blasingame (The Wilner Firm, PA), and Charles Easa Farah, Jr. (Farah & Farah, PA) for Thelma Aycock. Stephanie Ethel Parker (Jones Day), Randal S. Baringer (Womble Carlyle Sandridge & Rice, PLLC), Paul D. Clement (Bancroft, PLLC), and Jeffrey Lee Furr (King & Spalding, LLP) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory DefensesLiabilityNews TobaccoProductsNews AlabamaNews FloridaNews GeorgiaNews

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