$5.9 Million Verdict Against R.J. Reynolds for a Lung Cancer Death, Later Sent Back for Retrial

Richard Aycock of Florida began smoking before he married his wife, Thelma, and smoked more heavily as the years went on. From the mid-1980s until his death he smoked up to four packs a day, chain-smoked, and woke in the night to light a cigarette. The couple had been married for more than fifty years when he died in 1996.

Aycock was admitted to the hospital that year with confusion, disorientation and trouble keeping his balance. Doctors diagnosed lung cancer that had spread to his brain, and he died later the same year. His death certificate listed lung cancer as the cause. The family declined a biopsy that the hospital had recommended to confirm the diagnosis.

Aycock had once belonged to the class in Engle v. Liggett Group, the Florida smokers' class action. After the Florida Supreme Court decertified that class in 2006, it allowed former members to sue individually and gave the original jury's findings on addiction, negligence, concealment and conspiracy binding effect. Thelma Aycock, as personal representative of his estate, filed a wrongful death suit under the Florida Wrongful Death Act against R.J. Reynolds Tobacco Company and other manufacturers, which was tried in the U.S. District Court for the Middle District of Florida in Jacksonville. Her counsel included Charles Farah Jr. and Eddie Farah of Farah & Farah, alongside attorneys from Motley Rice, The Wilner Firm and Lieff Cabraser.

The trial took place in April 2013 after two continuances. It was contested on the medical facts. Mrs. Aycock's expert supported the hospital's diagnosis of lung cancer with brain metastasis. Reynolds pointed to records suggesting other possible causes, such as melanoma or severe pneumonia, and used the missing biopsy to question the diagnosis. The court kept most evidence of Mr. Aycock's drinking away from the jury on the question of causation, allowing it only in general terms on the effect on the marriage.

The jury found that lung cancer caused by smoking was a legal cause of his death and that his addiction to Reynolds cigarettes was also a legal cause. It awarded $5.9 million in compensatory damages for Mrs. Aycock's loss of support and services, loss of companionship and protection, and mental pain and suffering. The jury assigned 72.5 percent of the fault to Reynolds and 27.5 percent to Mr. Aycock, and the court entered a judgment of $4,277,500 against Reynolds. It denied Reynolds' motions for a new trial and for remittitur.

Reynolds appealed. On October 16, 2014, the Eleventh Circuit reversed the judgment and remanded for a new trial. The panel held that excluding the alcohol evidence was error, because it bore on causation, on the possibility of other causes of death, on the allocation of fault and on damages, and that the exclusion was not harmless. It did not decide Reynolds' separate complaint about the denial of a continuance, and it rejected Reynolds' due process challenge to the use of the Engle findings, following circuit precedent. The case was never retried. In January 2015, as the parties prepared for the new trial, Mrs. Aycock accepted a proposal for settlement served by Reynolds, and the court dismissed the case. The settlement terms are not in the public docket.