Massachusetts Jury Awards $152 Million for Lung Cancer Death Due to Smoking; Judge Orders Tobacco Co. To Reserve $270 Million To Pay Final Award

I love to report and comment on stories like this: A Massachusetts personal injury case that results in solid justice to the plaintiff.

Readers of a certain age and above will remember that back in the late 1970’s and early ’80’s, tobacco companies would literally give away samples of their cigarettes to the public. They had been doing this since at least the early 1960’s. I’m dating myself here, but in the mid-’70’s, I can clearly remember riding the Green Line into and out of Boston during those years, and seeing young, healthy looking men and women standing outside subway entrances at peak commuting hours, handing out small sample packs of cigarettes to almost anyone who walked by. These tobacco company “hawkers” (usually college kids or recent grads trying to make a few bucks,) would hold trays of cigarettes samples (usually containing 4 or 5 cigarettes,) out in front of them, held by a strap around their necks. While downtown locations were usually the best fishing grounds for this activity, these hawkers could also be found outside nightclubs on weekend evenings, and at beach locations in the summer. Usually very attractive young women who could double as models, these hawkers conveyed beauty, youth, and health.

There was just one problem: What they were promoting was anything but healthy, and anything but beautiful. In point of fact, they were legal drug pushers, pushing a deadly, addictive product, for free, just to get people hooked on the nicotine. It was literally like handing out cocaine samples for free – and worse, they pushed these deadly products on anyone and everyone who walked by – usually without regard to age. If you were a twelve-year-old who looked 15, you got cigarettes. Fast forward about 35 years: A woman in her mid-40’s, Marie Evans, is dying of lung cancer. She remembers when her addiction began: At age nine, when these healthy-looking, tray-carrying cigarette hawkers regularly handed out samples of Newport cigarettes to her and other kids. She files suit against the manufacturer of those cigarettes, Lorillard Tobacco Co., of Greensboro, North Carolina, shortly before her death in 2002. This past month, in December of 2010, a Suffolk Superior Court jury awarded her estate $50 million in damages for negligence, and awarded her son $21 million, for her death due to lung cancer. Days later, the jury added another $81 million to the verdict, for punitive damages, bringing the total verdict against Lorillard Tobacco Co., to $152 million.

The case is unique by being the first to claim that a tobacco company intentionally targeted minority communities with samples of cigarettes. Lorillard Tobacco makes the Newport Cigarettes brand, a menthol brand known to be very popular among black communities. The jury found the cigarette company was negligent in passing out samples of cigarettes to Evans and other black children when they lived in the Orchard Hill housing development in the Roxbury section of Boston. Evans testified that “pretty white ladies” would pass the cigarettes out, attracting children her age. “They seemed to be there waiting when we got out of school,” Evans said. The verdict is also unusual in that even though tobacco companies’ marketing practices have been criticized by government agencies, jurors historically haven’t sided with smokers who bring lawsuits against tobacco companies, preferring instead to hold the smoker partly responsible. This jury here believed that Evans was too young at the time she was given the cigarettes to know anything about them, and that once she was addicted, she couldn’t quit.

A Lorillard spokesman denied the plaintiffs’ claims, and announced that the company will appeal the verdict.

Earlier this week, lawyers for the plaintiffs asked a Massachusetts Superior Court judge to order Lorillard Tobacco to place $270 million aside in capital reserves to pay what the jury’s award could eventually amount to, with interest, as the appeal moves forward. The plaintiffs’ lawyers requested this order, because $270 million is what the final award could amount to, after adding statutory pre-and post-judgment interest. Without that order, Lorillard Tobacco Co. would have been able to essentially transfer all of its working capital to another corporate subsidiary, (Lorillard Inc.,) which would be beyond the court’s jurisdiction. Before any pro-business fans bemoan this judgment, bear this in mind: Lorillard’s own expert testified at trial that Lorillard Tobacco earns $16 million per day in revenue. Believe it or not, when judge Elizabeth Fahey asked Lorillard’s attorney how an order to reserve enough cash to pay the judgment would harm Lorillard, its attorney said, “The harm to Lorillard Tobacco Co. is going to be some adverse effect on its credit,” quoting from a transcript of the hearing. Thankfully, the judge wasn’t buying it.

As a Massachusetts product liability attorney, this verdict for me is sweet music. Not because I’m in any way connected to this case, but because predatory businesses like the tobacco companies should be punished swift and hard for all their dishonest and unethical marketing practices – no matter how far back those practices occurred. That opinion applies also to present predatory types of businesses such as banks and fast-food manufacturers. (Yes, “Big Food”, embodied in companies like McDonald’s, Burger King and KFC, specifically manufacturer their products to be habit-forming. Don’t believe it? Look at the obesity of the average American).

Product liability can arise from a variety of products that cause injury to an end-user, including automobiles, power tools, baby furniture, toys, food products, swimming pools, appliances and several other categories. If someone you care about has been injured in connection with the use of a product, contact us. We’re experienced in this field of law, and we’ll provide you a free initial consultation to let you know what your legal options might be.

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