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Smoker’s suit wins award of $71m

Hub jury finds tobacco firm targeted child

Marie Evans of Roxbury, pictured with her son, Willie, died at age 54. She said she began smoking cigarettes at age 9. Marie Evans of Roxbury, pictured with her son, Willie, died at age 54. She said she began smoking cigarettes at age 9. (Photo Courtesy of The Evans Family)
By Milton J. Valencia
Globe Staff / December 15, 2010

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In a groundbreaking decision, a Suffolk Superior Court jury yesterday found a tobacco company liable for the death of a Roxbury woman who said that, at age 9, she received free samples of Newport cigarettes in a targeted marketing campaign.

The jury awarded a judgment of $50 million to the estate of Marie Evans, who, before she died of lung cancer in 2002, testified that she first received free Newports as a child, while living in the Orchard Park housing development in Boston. She smoked until her death at age 54.

Her only son was awarded $21 million.

Lorillard, which denied it targeted youth with free cigarettes, plans to appeal.

Legal specialists describe the verdict as the first time a jury has found a cigarette maker liable for marketing its product by handing out free samples.

“It’s quite big in terms of not just the size of the award but really the reflected outrage of the jury after they learned of the detailed history of what Lorillard did in the 1950’s and 1960’s, acting in a predatory manner to promote Newports but at the direct expense of the health, safety, and very lives of people, including children,’’ said Edward L. Sweda Jr., senior lawyer for the Tobacco Products Liability Project at the Northeastern University School of Law.

The verdict sets up a second phase of deliberations in which the jury could also award Evans’s estate and family punitive damages, which often are a multiple of the amounts awarded in the compensatory phase.

The ruling came after six days of deliberations during which the 14-member jury said it had hit an impasse. After resuming deliberations the jury found Lorillard liable on several related accusations, including that the company was negligent in marketing Newports to children such as Evans and failing to warn her of the health risks; that it breached its warranty by distributing a dangerous product; and acted in a malicious, willful, wanton manner.

The jury put 70 percent of the blame for her death on Lorillard, and 30 percent on her. That determination could play a role in Lorillard’s appeal.

“The company will appeal and is confident it will prevail once the Massachusetts Court of Appeals reviews this case,’’ Lorillard spokesman Gregg Perry said in statement. Lawyers for the company had submitted several motions for mistrial that were rejected by trial judge Elizabeth Fahey.

Fahey is also considering a separate charge brought by the Evans estate: whether Lorillard violated Massachusetts consumer protection laws by selling a dangerous product. Should she too find Lorillard liable, Fahey’s decision could add to the damages the company must pay.

The lead attorney for the Evans’s estate, Michael Weisman of Davis, Malm & D’Agostine, declined to comment because the trial is ongoing. But in the courtroom after the verdict he was visibly jubilant as he hugged his fellow lawyers and associates.

In the weeks before she died, Evans had given videotaped depositions in which she testified that Lorillard representatives drove around the Orchard Park apartments in a white box truck—similar to an ice cream truck—passing out Newports to her and other children. She said when she first received them at age 9, she traded them for candy, but then began smoking them at age 13.

Evans died in 2002 before she was able to bring a suit against Lorillard. Her son, Willie Evans, filed the wrongful-death action in 2004.

During the trial, Evans’s depositions were played to the jury. In them, she accepted some responsibility for continuing to smoke, but said she was so addicted that she was unable to quit despite trying many times.

The underlying allegations in her wrongful-death suit were two-fold: that Lorillard marketed a “fun’’ cigarette to youngsters, and that the company was negligent by not only denying the health risks but also distributing misinformation about them.

Testimony during the trial alleged that Lorillard joined with other tobacco companies a half century ago in a misinformation campaign to dispute the health risks of cigarettes. Of note was the so-called “Frank Statement’’ tobacco companies put out that questioned whether cigarettes caused cancer.

It wasn’t until 1970, after the US Surgeon General’s statement on the health risks of cigarettes, that tobacco companies placed warnings on cigarette packs, according to testimony during the trial.

Lorillard’s lawyers argued during the trial that company executives communicated what they knew at the time to be the health risks of smoking, and Evans knew of the dangers by the time she became an adult. But, the lawyers argued, she did not stop, not after giving birth to her son, or after her father died of lung cancer or even when she had a heart attack at age 36.

Lorillard lawyers also argued that the company never passed out free Newports to children, and pointed out Evans’s own testimony that the first cigarette she smoked was given to her by a sister.

“Lorillard respectfully disagrees with the jury’s verdict and denies the plaintiff’s claim that the company sampled to children or adults at Orchard Park in the early 1960’s’’ Perry said. He added that Evans’s “50-year-old memories were persuasively contradicted by testimony from several witnesses.’’

The novel aspects of this case was its focus on Lorillard’s strategy of targeting urban neighborhood with Newport, a menthol brand that is popular among African-Americans. According to the Tobacco Products Liability Project at Northeastern, 75 percent of African-Americans prefer menthol brands.

The Food and Drug Administration is considering whether to extend the ban on flavored cigarettes to include menthol, industry watchers said.

Sweda said yesterday that lawsuits against tobacco companies have become more common since 1994, when an industry whistleblower and congressional hearings revealed company records that exposed how cigarette makers’ marketing strategies and public relations campaigns often were at odds with public research at the time.

Still, only about one-third of lawsuits brought before juries succeed because jurors typically refuse to sympathize with the smoker, Sweda said. And Lorillard had never lost a case brought by an individual before yesterday, the company said.

Moreover, in cases where juries have ruled in favor of smokers, cigarette companies have sometimes been able overturn the judgments.

But in Florida yesterday, a state appeals court affirmed a $28.3 million judgment against tobacco company R.J. Reynolds.

Sweda says Lorillard could face more lawsuits from people who say they got hooked on smoking by receiving free Newports when they were children.

“The word of this, when it spreads across the country,’’ Sweda said, “may well trigger memories of other people around the country who have gone through it and were targeted in a similar way, whether it be by Lorillard or other companies.’’

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

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