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Lorillard ordered to pay $81m penalty

Additional award in smoking case

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By Milton J. Valencia
Globe Staff / December 17, 2010

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Breaking the composure he has maintained for the past six weeks, the son of a Roxbury woman who died from the cigarettes she was induced to begin smoking when she was just 13 years old turned tearful and hugged his attorneys as a Suffolk Superior Court jury ordered a tobacco company yesterday to pay her estate $81 million.

The punitive damage award for the estate of Marie Evans was in addition to $71 million in compensatory damages the jury awarded the estate and her only son, Willie, in a groundbreaking decision Tuesday.

Speaking for the first time in public about his mother’s death eight years ago, at age 54, Willie Evans said the judgment was bittersweet because his mother is no longer here, but that he was grateful the jury held tobacco company Lorillard Inc. responsible.

“I think she would be thankful,’’ the 40-year-old Evans said outside the courtroom, minutes after the verdict for punitive damages. “I think she would be very grateful that the jury heard her story and held the tobacco company accountable.’’

His lead attorney, Michael Weisman of Davis, Malm & D’Agostine thanked the 14-member jury.

“The system worked,’’ he said. “I feel like promises we made to Marie Evans eight years ago were kept. I’m thinking about Marie Evans, who, three weeks before she died, sat for three days of depositions because she wanted to tell her story. She told her story, and the jury heard it.’’

A spokesman for Lorillard said yesterday that the company will appeal. A request to set aside the verdict until an appeal can be heard is expected to be filed soon. Lawyers for the company had filed several motions for mistrials that were not granted.

The case was the first to challenge Lorillard’s strategy of handing out Newport cigarettes a half-century ago in urban communities, where menthol brands are particularly popular, and of marketing the brand as a “fun’’ cigarette to youngsters.

“Lure them when they’re young,’’ Weisman said, quoting the company’s internal documents.

Evans said in depositions before she died that she started receiving the cigarette samples in her Orchard Park housing development when she was just 9 years old. At first, she traded them for candy. By 13, she started smoking them, and she then developed a lifelong habit that continued until she died.

She said she tried to quit about 50 times, but that she was addicted. Another part of the trial included allegations that Lorillard denied the health risks of smoking and the addictiveness of nicotine.

The verdict has already had a ripple affect across the country as tobacco lawsuits make their way through the courts. In addition, the decision could play a critical factor as the US Food and Drug Administration is considering a ban on menthol cigarettes.

“This could influence national policy,’’ said Greg Connolly of the Harvard School of Public Health.

Edward L. Sweda Jr., senior attorney with the Tobacco Products Liability Project at Northeastern University, said the jury sent a clear message against the past marketing strategies of tobacco companies with the sizable monetary award. It is believed to be the largest compensatory award ever delivered by a jury in a wrongful death lawsuit against a tobacco company and the largest total award standing today. Higher total awards have been delivered before, but were reduced on appeal.

“Clearly, this reinforced the very clear message that this jury was outraged at what it learned during the trial of Lorillard’s predatory conduct that led to Marie Evans’ death,’’ Sweda said.

Andrew C. Meyer Jr., a personal injury and medical malpractice lawyer in Boston, said the punitive damages award struck him as modest, given testimony about Lorillard’s solid financial standing and the $50 million in compensatory damages awarded to Evans’s estate. In the $71 million compensatory award, her estate received $50 million and her son $21 million.

Under court rules, compensatory damages are given to compensate for wrongdoing, in this case Evans’s death, and punitive damages are to punish the company for its actions and to deter similar action.

The US Supreme Court, Meyer explained, has ruled that punitive damages should be no more than two or three times the value of compensatory damage, and that punitive damages are “directly related to how much money it would take to sting the defendant, so as to punish them for causing this harm.’’

Given the history of tobacco litigation, he said, Lorillard will undoubtedly pursue the matter vigorously in the state appeals courts. “This is going to be a long time in the appellate courts,’’ he said.

Earlier yesterday, Walter Cofer, a Kansas City attorney representing Lorillard, asked the jury to no longer hold the firm accountable for the past, saying it has rectified problems alleged during the trial.

“You don’t get punished today for moving in the right direction,’’ he said.

But Weisman argued that jurors should punish Lorillard for its past actions with a financial penalty to make sure such acts never occur again. He said jurors should have no sympathy for a company just because it is now following acts required by law.

“That’s like saying, ‘We’re obeying the law because it’s the law.’ That’s impressive,’’ Weisman said. “How about saying, ‘We’re trying to get children to stop smoking, because it’s the right thing to do.’ ’’

Jonathan Saltzman of the Globe staff contributed to this report. Milton Valencia can be reached at mvalencia@globe.com.