Judge rejects call to dismiss tobacco suit
Cigarette giveaway to children alleged
A Massachusetts judge has rejected Lorillard Tobacco Co.'s motion to dismiss a lawsuit filed on behalf of a woman who allegedly started receiving free Newport cigarettes when she was 9 years old. Suffolk Superior Court Judge Paul E. Troy's decision, announced yesterday, clears the way for the nation's first trial of claims that a cigarette maker illegally handed out cigarettes to lure minority children to smoke.
Marie Evans , who died of lung cancer in 2002 at age 54, said she started receiving sample packs of Newport cigarettes in 1957 at company giveaways on the edge of a Roxbury playground. Lawyers for her son, Will Evans , allege that she was too young to recognize the hazards of smoking and that the child was dazzled by Newport advertising aimed at African-Americans, turning her into a smoker for more than 40 years.
"I would not call it racism, but Lorillard handed out free samples of its cigarettes to a poor minority community in Boston," said Rebecca McIntyre, a lawyer for Will Evans, who filed the lawsuit in 2004. McIntyre argued that the cigarette giveaway was a form of "battery" on Marie Evans because she was tricked into consuming a toxic substance.
Lawyers for Lorillard Tobacco declined to comment, but in court filings, the company argued that it should not be held liable for any harm to Evans that occurred after 1969, when Congress required cigarettes to carry a warning label. Evans's health problems from cigarettes did not begin until she suffered a heart attack in 1984 , according to court documents .
Judge Troy rejected Lorillard's argument, concluding that the company could still be found negligent for injury to its customers despite the warning labels. He also allowed Evans's lawyers to go forward with a variety of other claims in the lawsuit, including that the cigarette giveaways violated a law against giving cigarettes to minors . The case could go to trial by the end of the year.
A specialist on tobacco lawsuits said Troy's ruling is a victory for anti tobacco advocates. Cigarette companies usually succeed in their efforts to get lawsuits dismissed before they come to trial, said Mark Gottlieb , director of the Tobacco Products Liability Project at Northeastern University.
"If you can defeat the motion to dismiss, you're 75 percent of the way home."
Scott Allen can be reached at allen@globe.com. 