AP photo by Kristoffer Tripplaar

An Oklahoma jury that awarded nearly $25.6 million to a man who blamed his wife’s death on Aetna Insurance for failing to cover a particular type of cancer treatment was, in the words of the plaintiff’s lawyers, sending a resounding “message” to the insurer about the way it does business.

But last week's award, which included $10 million in punitive damages and was issued by a 9-3 vote, as allowed under Oklahoma law, is also likely to set up an appellate battle on a number of issues, not the least of which is whether state law allows for such a recovery.

Attorney Doug Terry, who represents Ron and Orrana Cunningham, said he hoped Aetna learned from the verdict.

“We are hopeful Aetna will listen to the jury’s message and seize this opportunity to take a hard look at the way it does business, so that what happened to Mrs. Cunningham never happens to anyone else,” he said.

Asked whether the 9-3 split indicated uncertainty on the jury’s part or may impact any appeal, Terry replied in the negative.

“It is our understanding that two of the three jurors who did not sign the verdict form refused to do so because they wanted to award a much larger verdict to the Cunninghams,” Terry said. “We do not believe the fact the verdict was 9-3 will impact the appeal in any way.”

While no appeals have been filed, a trial brief Aetna filed may preview a couple of areas the insurer plans to explore in any potential challenge: statutory damage caps and the availability of punitive damages.

Under Oklahoma’s tort reform law, non-economic damages are limited to $350,000.

“Plaintiff first argues that the statutory limit ought not apply as this is a case arising from contract, not a tort case,” the Nov. 5 filing said. “If the court accepts that argument, it must immediately direct a verdict in favor of Aetna on punitive damages. By statute, punitive damages in Oklahoma apply only to ‘an action for the breach of an obligation not arising from contract.'"

“This is precisely the type of case that the legislature intended to curb” when it enacted tort reform in 2009, the defense filing said.

“There can be no mistake that plaintiff wants the jury to believe that Aetna caused Orrana Cunningham‘s physical injury,” it said. “But the lion’s share of any damages recoverable in this case are the type of non-economic damages over which juries had almost unreviewable discretion” before the law was passed, and represents a “runaway result” that is “unsupported by any competent evidence in the record,” the brief said.

“All that the plaintiff can offer the jury is an appeal to passion and sympathy,” it said.

In his closing statement to the jury, Aetna attorney John Shely reportedly told the jury that if “it's in our control to change, that's what we're going to do. Aetna has learned something here."

But some defense lawyers who reviewed coverage of the trial said Aetna seemed to have handled the Cunningham claim appropriately.

“I think this is a case primarily driven by emotions,” said E. “Billy” Gunn of defense firm Weinberg Wheeler Hudgins Gunn & Dial, which has offices in Georgia, Florida, Alabama and Nevada.

The key to the case is the underlying policy and its language regarding experimental treatments, he said.

“Mr. Cunningham came across as a very sympathetic man,” Gunn said. But, he noted, “his wife did get the treatment, but it didn’t save her.”

While the numbers are big, he said, “I don’t think Aetna’s overly concerned about this particular judgment.”

The court docket reflects that the court ordered at least one mediation.

Terry said he could not discuss any settlement negotiations that may have occurred, but Matthew Moffett of Atlanta-based defense firm Gray, Rust, St. Amand, Moffett & Brieske said the lesson for Aetna may have been to engage in settlement discussions before the case got so far along.

“Good insurers want to follow the law and fulfill their contractual obligations—to do the right thing. So what happened here?” Moffett said.

“Did the defense attempt to engage plaintiff in meaningful settlement negotiations?” he asked. “While I may be opining with hindsight bias, it seems the better defensive strategy would have been an invitation to plaintiff to travel together along the roadway of resolution.”

“It would appear that the evidence was against the defense, and the efforts to argue otherwise certainly offended and angered that jury,” he said. “Obviously, the defensive trial strategy didn’t work out so well.”

According to an online account Terry posted, court filings and other sources, the case began in 2014 when Orrana Cunningham, then 54, was diagnosed advanced nasopharyngeal cancer.

Cunningham and her husband Ron Cunningham sought treatment at the University of Texas’ MD Anderson Cancer Center in Houston, where doctors suggested she try proton therapy to treat a tumor at the base of her skull near the brainstem. The treatment uses targeted beams of protons to irradiate small sections of tissue.

The center sought authorization for Aetna to provide the therapy, but Aetna’s in-house medical directors denied the claim, determining the treatment was “experimental or investigational,” and not covered under its contract with the Cunninghams.

The couple sought an independent opinion from a radiation oncologist who agreed with Aetna, the insurer said.

Unwilling to accept the denial, the Cunninghams mortgaged their home and set up a GoFundMe page to cover the $92,000 cost of the treatment.

Even so, Orrana Cunningham died the following year.

After a two-week trial in Oklahoma City before Oklahoma County District Court Judge Lisa Davis, the jury first found Nov. 5 that Aetna breached its contract and the duty of good faith and fair dealing it owed to the Cunninghams, awarding the $92,082 they spent on the treatment and $15.5 million for emotional distress.

Following a separate trial on punitive damages, the jury awarded $10 million the next day for a total of $25,592,089.

Both votes were 9-3.

In addition to Terry of Doug Terry Law, the Cunninghams' counsel includes Justin Meek, Thomas Paruolo, Ryan Dean and Melanie Christians of Oklahoma City’s DeWitt Paruolo & Meek.

Aetna’s team includes Shely and Laura Trenaman of Houston’s Hunton Andrews Kurth, Leasa Stewart of GableGotwals in Oklahoma City and Frederick Santarelli, Stewart Greenleaf and Sherine Bediako of Elliott Greenleaf in Blue Bell, Pennsylvania.

They referred queries to Aetna, which extended its condolences to the Cunningham family.

“While we respect their privacy and the grieving process, it’s important that people understand how we make coverage decisions and what steps were taken in this instance,” the statement said.

Citing court records, Aetna said its plans “provide coverage for intensity-modulated radiation therapy, which has been proven safe and effective for head and neck cancers. The Cunningham family instead chose to pursue proton beam therapy, which is considered experimental and investigational. Based on the lack of clinical data supporting proton therapy for treating nasopharyngeal tumors, the request was denied.”

“The denial was upheld through two levels of internal appeal,” it said, including one by an “internist trained in medical oncology who previously treated head and neck cancers. The Cunninghams next sought external review, which was arranged by the state of Oklahoma, and the denial was once again upheld by an independent radiation oncologist. Unfortunately, the external review and its findings were not permitted to be used in court.”

“While we have no comment on the ruling, juror motives or a potential appeal, we do want to make it clear that the proper steps under the health plan were followed in this instance,” the statement said. Quoting a blog post from Aetna’s chief medical officer, the statement said, “it’s never easy to tell an individual or family that a treatment or procedure is not approved—it’s the hardest thing we have to do. However, our guiding principles will continue to be proven effectiveness and member safety, as determined by rigorous scientific studies.”