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Award swells in tobacco lawsuit

Judge’s ruling could double $152m total

By Milton J. Valencia
Globe Staff / September 2, 2011

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A Superior Court judge ruled yesterday that the man who won a $152 million lawsuit last year against a tobacco company for causing the death of his mother - by giving her free cigarettes when she was just a child - can collect the money with interest retroactive to 2004, the year the case was filed.

The state allows for interest to be collected at 12 percent a year, meaning the $152 million judgment could essentially double.

Superior Court Judge Elizabeth M. Fahey made the decision on the same day she found that Lorillard Tobacco Co. violated state consumer protection laws by targeting young children in black communities a half century ago with its new Newport brand, which it knew could cause cancer.

“I accept that Lorillard manipulates the levels of tar, nicotine, and menthol in Newport cigarettes, which eases initiation to smoking and often results in lifelong addicts with negative health consequences,’’ Fahey said in a 56-page ruling.

She added, “The evidence convincingly established that over decades [Lorillard] marketed its cigarettes, including Newports, to minors.’’

The decision was part of the case of Marie Evans, who received free samples of Newport cigarettes when she was 9 years old, while the company was handing them out near the Orchard Park housing development in Roxbury where she grew up in the 1950s. By 13, she was addicted to cigarettes, she said in depositions before her trial.

Evans continued to smoke, even while pregnant with her first and only child and after a heart attack at age 36, until she died in 2002 of small-cell lung cancer. She was 54.

The lawsuit was brought by her son, Willie Evans.

Lawyers for Lorillard had argued that Evans became aware of the dangers of cigarettes and should have quit. Lawyers for Evans’s estate argued that she tried, more than 50 times, but that she could not break an addiction that began as a child.

In December, a Suffolk Superior Court jury found that Lorillard, of North Carolina, negligently marketed its cigarettes to youngsters and failed to warn consumers, including Evans, of the dangers of smoking. The jury also found that the company created a state of confusion among the public by saying it would research whether cigarettes caused cancer when it knew all along of the health risks.

Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project at the Northeastern University School of Law, said yesterday that the judge’s decision shows that tobacco companies are still being held liable for their egregious conduct from years ago. He also said that the ruling that the company violated consumer protection laws will serve as a basis for other lawsuits here and across the country. One, alleging fraud by tobacco companies for describing light cigarettes as safer cigarettes, is still pending.

“Directly putting cigarettes into the hands of kids was especially egregious, and today’s ruling is perfectly consistent with how outrageous that conduct was,’’ Sweda said. “This is important. It’ll be helpful for future tobacco litigation within Massachusetts as well as . . . across the country.’’

Fahey’s ruling yesterday is a separate proceeding from the jury trial. But the judge came to the same findings in determining that Lorillard breached its duty to properly research the hazards of smoking and provide that information to the public when it started handing out cigarettes a half century ago.

The judge did not award an additional monetary judgment as part of her ruling, but said Evans’s son can seek reimbursement for legal fees. The $152 million jury judgment was for him and for his mother’s estate.

Evans’s lawyer, Michael Weisman, of Davis, Malm & D’Agostine of Boston, said yesterday that Fahey’s ruling not only supports the jury’s verdict but also the original contention that Lorillard wantonly and recklessly targeted children in its marketing campaign. Throughout the trial, Weisman showed that the company also reached out to inner-city neighborhoods with its new Newport brand, a menthol cigarette that has shown to be popular in black communities.

“It is yet another fact finder who has ruled that the evidence is conclusive and proves that Lorillard targeted children, handed out cigarettes to children unlawfully, caused children like Marie Evans to become addicted, at a time when it knew the product it was distributing caused cancer,’’ Weisman said.

Lorillard did not comment on the ruling yesterday. Milton J. Valencia can be reached at MValencia@globe.com Follow him on Twitter @MiltonValencia