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Cigarette verdict may be felt across US

Lawsuits, policies could be affected

The family of Marie Evans, shown at age 9, right, won a suit against tobacco company Lorillard Inc. The suit could have affect the entire tobacco industry. The family of Marie Evans, shown at age 9, right, won a suit against tobacco company Lorillard Inc. The suit could have affect the entire tobacco industry. (Handout)
By Milton J. Valencia and Jonathan Saltzman
Globe Staff / December 21, 2010

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It was hardly only Marie Evans. The Rev. Michael E. Haynes, retired pastor of the Twelfth Baptist Church in Roxbury, said he saw attractive young women in green outfits handing out cigarettes to people 50 years ago in Frederick Douglass Square, the heart of the city’s black community.

Leroy M. Jenkins, 73, who grew up in Roxbury’s Orchard Park near Evans and her family, said he received some of the cigarettes as a teenager after finishing classes for the day at Dearborn Middle School.

“They’d be out there waiting for us,’’ Jenkins said in an interview.

The family of Evans, who died of lung cancer in 2002, more than 40 years after she was induced to smoke Newport cigarettes as a teenager, won an individual lawsuit last week against Lorillard Inc., but the groundbreaking case has exposed an industrywide marketing strategy that began a half-century ago to promote cigarettes to youngsters. In Evans’s case it was Newport, a brand particularly popular among young smokers and the black community. Tobacco companies deny targeting youngsters in the campaigns.

But with the unprecedented, $152 million jury judgment in favor of Evans’s family, the case could have a ripple effect on court decisions and public policy decisions across the country, as smokers weigh whether to file their own lawsuits and federal officials consider a ban on menthol cigarettes.

“This is an important decision, in that it shows that tobacco litigation is still alive and well,’’ said Michael Siegel, a tobacco control specialist with the Boston University School of Public Health. “There’s kind of a perception that tobacco companies have paid their dues, and we’re moving forward, but this shows from the public perception that we’re not done yet, and that the public wants justice.’’

The judgment, $71 million in compensatory damages for Evans’s estate and her son, and $81 million in punitive damages for her estate, is among the largest in the country from a tobacco wrongful death suit, and the largest for any trial in a Massachusetts court, industry analysts said. And it’s not over yet: Judge Elizabeth Fahey, who presided over the trial in Suffolk Superior Court, is considering whether to award more money under the state’s consumer protection laws.

Lorillard, based in Greensboro, N.C., acknowledged a sampling strategy a half-century ago but denied ever passing out cigarettes to youngsters or targeting minorities. The company, which never lost a lawsuit brought by an individual until Dec. 14, plans to appeal the jury’s decision.

The Evans case was based in large part on the tobacco industry’s internal documents that exposed a misinformation campaign, and an effort to specifically market to youngsters.

One letter filed with the Legacy Tobacco Documents Library, an archive of millions of industry documents released under lawsuits and kept by the University of California at San Francisco, shows that Senator Orrin G. Hatch, Republican of Utah, wrote the Tobacco Institute in 1988 raising concerns with the distribution of Newports to minors during a Fourth of July fair in New York City.

Several of Lorillard’s internal documents, used during the trial, show an inside look at the company’s strategy for Newport, including a boast that black Americans and high school students were the target market.

“The success of Newport has been fantastic over the years,’’ one memo, written by a marketing executive in 1978, claimed. “Our profile taken locally shows this brand being purchased by black people, (all ages), young adults, (usually college age), but the base of our business is the high school student.’’

A 1978 memo, titled “black marketing research,’’ urged the company to “explore the effectiveness . . . of a black newspaper campaign for Newport on an ongoing basis.’’

And a 1964 document that gave a brief history of Newports, which were first introduced in 1956, indicated, “The brand was marked as a ‘fun cigarette,’ ’’ and that marketing had “obtained a youthful group as well as an immature group of smokers.’’

Haynes, an 83-year-old nonsmoker, said he recalls seeing “cigarette people parading through the strategic heart of the black community.’’

“Cigarettes are bad for people, and the cigarette industry knew they were bad for people,’’ he said. “Yet they were promoted, and they were promoted in the black community with zest.’’

Siegel, of BU, said the public perception is that tobacco companies have been inoculated from new litigation after settlements with federal and state governments, which helped in the release of the documents. In 1998, for instance, attorneys general from 46 states and four tobacco companies reached the landmark Tobacco Master Settlement Agreement that, in effect, settled lawsuits that states had filed — often to recoup money spent through Medicaid on illnesses caused by smoking.

In return, the companies agreed to pay billions of dollars to states and to stop certain marketing practices.

But individuals who had claims against tobacco companies could continue to take their own legal action, and thousands of lawsuits are pending across the country. Though courts have been known to reduce the amount of monetary awards, appeals courts have been reluctant to alter jury decisions, he said.

In Florida, for instance, a state appeals court last week affirmed a $28.3 million judgment against tobacco company R.J. Reynolds.

Greg Connolly, of the Harvard School of Public Health, who used to advise and conduct research for the Food and Drug Administration, said the Evans judgment is bound to play a critical role as the federal agency decides whether to extend a ban on flavored cigarettes to include menthol. Tobacco companies have defended menthol brands, saying they are no different than other cigarettes, but opponents have said they are only meant to improve the taste of cigarettes, as a strategy in luring youngsters.

“If a jury of our peers can make a finding on this, then surely a group of scientists can do the same, and we need action on this,’’ Connolly said.

Menthol cigarettes make up one-third of the total US market, he said.

Milton J. Valencia can be reached at mvalencia@globe.com. Saltzman can be reached at jsaltzman@globe.com.