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Jury watches a dying smoker

Estate is suing cigarette maker for neglect, damages

Marie Evans, then 54, posed with her son Will in 2002. Marie Evans, then 54, posed with her son Will in 2002. (Handout)
By Milton J. Valencia
Globe Staff / December 7, 2010

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In his last gesture to a jury in Suffolk Superior Court yesterday, attorney Michael Weisman deferred to a video of Marie Evans, set up for the entire courtroom to see.

It was a videotaped deposition of why she started smoking, and how.

“I wanted to give my testimony today, because I don’t believe I’ll be here much longer,’’ the single mother who grew up in the Orchard Hill housing development in Roxbury said. It was May 29, 2002. She died weeks later.

The gripping video, in which Evans recounts smoking cigarettes at 13 years old, and then her struggles to quit, was played before jurors during closing arguments that punctuated a weeks-long tobacco company wrongful death lawsuit.

Weisman, representing the Evans estate, asked Suffolk jurors to hold cigarette manufacturer Lorillard Inc. accountable for her death, saying the company seduced the woman with free samples of its Newport cigarettes beginning when she was just 9. Weisman said Lorillard would target black youths, regardless of their age, with its new menthol brand of cigarettes, a brand that was popular among blacks.

“The name of the game was to hook them while they’re young,’’ Weisman said.

Evans, who was black, smoked Newport cigarettes for 40 years before she died in 2002 of lung cancer. She was 54.

Her son, William, a Harvard law graduate representing her estate, has sued Lorillard for neglect and for damages for his mother’s death. Jurors will have to decide whether Lorillard was neglectful, among other charges, and whether that neglect played a role in Evans’s death.

Jurors will then have to decide who shares most of the blame for Evans’s death — her or the cigarette maker — before deciding whether to award monetary compensation. They are expected to begin deliberating today.

Lawsuits against cigarette companies are difficult to win, in that jurors are reluctant to release the smoker from any responsibility in their death, legal analysts said. But this case is the first of its kind in which the plaintiffs cited the cigarette makers’ past practices of giving out samples in arguing that the company recklessly marketed to children.

Walter Cofer, a Kansas City-based lawyer representing Lorillard, said in his closing statements that the cigarette manufacturer should not be held responsible for the death of a woman who continued to smoke even after she knew of the health risks.

He noted that Evans suffered a heart attack 15 years earlier that was attributed to smoking, yet did not quit. She did not quit in 1970 when her father died of lung cancer, or when she was pregnant with William, her only son, in spite of the health warnings, Cofer said.

“She enjoyed smoking,’’ he said. “She went back to smoking, and smoked until her death.’’

As part of the strategy in the case, Weisman argued that Lorillard had a diabolical, multipronged plan to market its new brand, Newports, in the 1950s. It would distribute free samples in minority communities, where the menthol brand was popular; it would label the cigarette as “fun,’’ as a way to reach out to young, “immature’’ smokers; and it would work to create “controversy’’ over the developing research showing that cigarettes cause heart disease and lung cancer, as a way to cast public doubt on the research.

Weisman submitted as evidence secret company documents showing that Lorillard knew about the health risks while continuing to deny them, and at the same time creating a market strategy to reach out to high school students.

At age 9, Evans would get the free samples in Roxbury and trade them with her sisters for candy. By age 13, she started to smoke them. Weisman said she had tried to quit multiple times, but that she was dependent on nicotine. He had several expert witnesses testify that the stresses Evans was going through, with her failing health, may have contributed to her inability to quit.

“Lorillard just doesn’t get it,’’ he told jurors. “They completely disregard the fact that this woman became deeply addicted as a child.’’

Cofer used his own witnesses to argue that “all cigarettes cause cancer,’’ and that Evans had known that smoking posed a health risk. His witnesses also denied that Newports were marketed toward any particular minority group, and said samples were never given to children. He cited testimony that Evans got her first cigarette from her sister to redirect blame for her addiction.

“Free samples do not cause people to smoke,’’ Cofer said. “Friends and family cause people to smoke.’’

Milton Valencia can be reached at mvalencia@globe.com.