8th Cir.: 'One Recovery' Rule Bars Wrongful-Death Tobacco Suit

By Mark Wilson, Esq. on August 05, 2014 | Last updated on March 21, 2019

For 28 years, Michael Thompson smoked cigarettes. He stopped when he was diagnosed with lung cancer in 1997. Following the diagnosis, he sued the manufacturers and distributors of the cigarettes in a personal injury action. A state court granted summary judgment for the distributors, but not for the manufacturers. The case against manufacturers R.J. Reynolds and Brown & Williamson went to trial, and Thompson obtained a verdict of more than $1 million in his favor.

After Thompson died in 2009, his wife and children brought a wrongful death suit against all the previous defendants. On appeal, the Eighth Circuit affirmed dismissal of Thompson v. R.J. Reynolds based on Missouri's "one recovery" rule.

Just 'One Recovery' Allowed

The "one recovery rule" bars a person's heirs from recovering again for the same wrong. If a plaintiff makes a personal injury claim and wins, then subsequently dies as a result of the same injury, his heirs can't recover again because the same wrongful act that caused the injury caused the death. It's a specific application of the more general bar against double recovery.

So how did the Thompsons think they were going to defeat it? The case establishing the one recovery rule in Missouri is more than 100 years old, and the Thompsons argued that the law has changed since then. Indeed, they argued, the wrongful death statute now allows a separate cause of action for wrongful death on behalf of the decedent's survivors.

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Difference Between Cause of Action and Wrongful Act

The Eighth Circuit disagreed, finding a difference between wrongful act and cause of action. The 1906 case creating the one recovery rule was crystal clear that the rule existed "[w]hether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right ... the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had."

The key here is the act itself, not the cause of action. If a wrongful act harmed the plaintiff in his lifetime, he acted on it, and received a judgment or settlement, then the "wrong" is considered corrected, whether or not a statute allows for a separate cause of action.

The case thus presents a grim calculus to family members of people like Thompson, who faced a terminal diagnosis: Sue now, or wait for the inevitable and sue later? You can only pick one.

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