Mass. high court partially overturns landmark tobacco case award

FILE - In this Feb. 7, 2013 file photo, cigarette butts fill the ash tray at the State Capitol complex in St. Paul, Minn. The 2013 Legislature passed a new cigarette tax of $1.60 a pack which is intended to help fund the state's $348 million share of the $975 million Minnesota Vikings NFL football stadium after tax revenue from an expansion of electronic gambling badly lagged behind projections. (AP Photo/Jim Mone,File)
Cigarette butts filled an ashtray at the state capitol complex in St. Paul, Minn., in February.Jim Mone/AP

The state’s highest court has partially overturned a landmark verdict against Lorillard Tobacco Co. that alleged the company designed cigarettes solely to attract younger smokers, addicting a Boston woman who later died of lung cancer.

The Supreme Judicial Court upheld the award of compensatory damages to the woman’s son and her estate, but struck down the award of punitive damages.

“We affirm the judgment only in part,” the court said in a unanimous 82-page opinion written by Justice Ralph Gants.

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The court said the award of a total of $35 million in compensatory damages “adequately rests” on the jury’s finding that Lorillard, due to a design or warning defect, committed a breach of its implied warranty of merchantability — essentially, the guarantee that a product is fit for ordinary uses — when it sold the cigarettes.

Anti-tobacco activists hailed this section of the ruling. The Tobacco Products Liability Project, based at Northeastern University, said the ruling meant that “in Massachusetts, any cigarette sold that addicts or maintains the nicotine addiction of consumers is defective.”

Mark Gottlieb, the project director, said in a statement that because of the ruling, “I expect many more cases here to help to address the suffering of victims ... needlessly addicted in their youth to a deadly product.”

But there was also some good news in the ruling for the company. The Supreme Judicial Court said the award of $81 million in punitive damages may have been marred by inadequate jury instructions on the legal theories of “negligent design and marketing” and “breach of voluntarily undertaken duty.”

“We vacate the award of punitive damages because it may have been tainted by the errors ... and we remand the case for a new trial on the issue of punitive damages,” the court said.

The high court also vacated a finding by the lower court judge that the tobacco company had violated state consumer protection law. The court ordered that the lower court judge reconsider that issue and determine if any damages should be paid.

“We are gratified that today’s ruling by the Massachusetts Supreme Judicial Court ordered a new trial for punitive damages based on errors made during the Evans trial. However, Lorillard disagrees with the affirmation of compensatory damages and the Company is currently considering its options for further review of the ruling,” Gregg Perry, a spokesman for Lorillard, said in a statement.

Marie Evans’s son, Willie Evans, sued Lorillard in 2004, blaming them for introducing his mother to cigarette smoking by giving her free samples of Newports when she was 9 years old and living in the Orchard Park housing development in the 1950s. By the age of 13, she was addicted, the jury found.

Marie Evans smoked while pregnant with her first and only child and also after suffering a heart attack when she was 36. She was still smoking when she died in 2002 of small-cell lung cancer at 54.

A jury had originally awarded $50 million in compensatory damages to Marie Evans’s estate and $21 million to her son, but that award was reduced by the judge to $25 million and $10 million, respectively.

The Globe reported in September 2011 that Superior Court Judge Elizabeth M. Fahey had ruled that interest of 12 percent a year applied to the damages awards, dating back to 2004, the year the case was filed, which would essentially double any award amounts.

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