San Francisco Chronicle, March 20, 2006
Bob Egelko, Staff Writer
Suit Alleges Cancer Worse From Cigarettes
BOSTON (AP) — The son of a woman who died of lung cancer is planning to sue the cigarette maker that gave her free samples when she was a girl, contending the giveaways were aimed at black children. The lawsuit against Lorillard Tobacco Co., maker of Newport cigarettes, is thought by legal experts to be the first to accuse a tobacco company of targeting black children. It is to be filed Monday in Suffolk Superior Court, The Boston Globe reported in its Saturday editions.
Marie Evans, in interviews with lawyers before she died in 2002 at age 54, said as a child she would get free sample packs of four to 10 Newport cigarettes from a company van that regularly came to the Boston housing project where she lived. Evans estimated she received free cigarettes 25 to 50 times – the first sample when she was 9 – and traded them for candy until she was 13, when she started smoking.
“They have employed these marketing strategies to target not only children, but children in the black community,” said Rebecca McIntyre of Weisman and McIntyre, which is representing Evans’ son, Will Evans. There is no specific damage request. Lorillard officials have known that Will Evans was considering a lawsuit for at least two years, but company lawyer Andrew J. McElaney said the Greensboro, N.C.-based company would have no comment until the complaint is filed.
Only 14 out of hundreds of smoker lawsuits filed against tobacco companies in the past 50 years have prevailed, according to Northeastern University’s Tobacco Products Liability Project, but the Evans lawsuit undermines the industry’s standard argument against adult smokers that they were old enough to know better.
“I don’t think any of the other lawsuits have focused on the issue of the deliberate campaign of handing out free samples to a child,” said Edward L. Sweda Jr., senior staff attorney at the Northeastern center. State law banned giving cigarettes to children even in the 1950s, but McIntyre said Lorillard was so eager to attract young smokers that it deliberately broke the law.
Will Evans said his mother became a lifelong smoker of Newports. Evans said his mother believed Lorillard’s assurances that its products did not cause cancer, despite evidence to the contrary. After she was diagnosed with cancer, she became angry at the way Lorillard seduced her into smoking and she continued depositions in preparation for the lawsuit until the final weeks of her life. Greg Connolly, the former director of the state’s anti-smoking campaign, said Newports and other menthol cigarettes have been targeted to black youth, noting that more than half of black teenage smokers choose the Newport brand.
Norman Black, the creative director for the advertising agency that promoted Newport from 1974 to 1992, said his ad campaigns were geared toward young people, though not necessarily blacks, since they smoked Newports in large numbers anyway. McIntyre said she has evidence that Lorillard tried to hook young smokers, including a 1963 memo from a top advertising executive to Lorillard’s vice president that read: “There’s nothing like starting them out young!” Michael D. Weisman, who is also working on the Evans case, expects Lorillard to try “to bury us in paperwork,” but he says it won’t work. “They set out to addict a child, addicted her and then killed her,” he said. “We will have a trial.”
Boston Globe, February 8, 2007
Scott Allen, Globe Staff
Judge rejects call to dismiss tobacco suit. Cigarette giveaway to children alleged.
A Massachusetts judge has rejected Lorillard Tobacco Co.’s motion to dismiss a lawsuit filed on behalf of a woman who allegedly started receiving free Newport cigarettes when she was 9 years old. Suffolk Superior Court Judge Paul E. Troy’s decision, announced yesterday, clears the way for the nation’s first trial of claims that a cigarette maker illegally handed out cigarettes to lure minority children to smoke.
Marie Evans, who died of lung cancer in 2002 at age 54, said she started receiving sample packs of Newport cigarettes in 1957 at company giveaways on the edge of a Roxbury playground. Lawyers for her son, Will Evans, allege that she was too young to recognize the hazards of smoking and that the child was dazzled by Newport advertising aimed at African-Americans, turning her into a smoker for more than 40 years.
“I would not call it racism, but Lorillard handed out free samples of its cigarettes to a poor minority community in Boston,” said Rebecca McIntyre, a lawyer for Will Evans, who filed the lawsuit in 2004. McIntyre argued that the cigarette giveaway was a form of “battery” on Marie Evans because she was tricked into consuming a toxic substance. Lawyers for Lorillard Tobacco declined to comment, but in court filings, the company argued that it should not be held liable for any harm to Evans that occurred after 1969, when Congress required cigarettes to carry a warning label. Evans’s health problems from cigarettes did not begin until she suffered a heart attack in 1984, according to court documents.
Judge Troy rejected Lorillard’s argument, concluding that the company could still be found negligent for injury to its customers despite the warning labels. He also allowed Evans’s lawyers to go forward with a variety of other claims in the lawsuit, including that the cigarette giveaways violated a law against giving cigarettes to minors. The case could go to trial by the end of the year.
A specialist on tobacco lawsuits said Troy’s ruling is a victory for anti tobacco advocates. Cigarette companies usually succeed in their efforts to get lawsuits dismissed before they come to trial, said Mark Gottlieb, director of the Tobacco Products Liability Project at Northeastern University. “If you can defeat the motion to dismiss, you’re 75 percent of the way home.”
Daily Times, August 18, 2010
A Boston judge delayed ruling Monday on Lorillard Tobacco Co.’s request to reject a lawsuit that accuses the nation’s third-largest tobacco company of targeting black youth in its cigarette marketing.
Judge Linda Giles of Suffolk Superior Court told lawyers for both sides she wanted to review the case filings as well as previous court cases before ruling on Lorillard’s request for a favorable decision without going to trial.
“I have reviewed your submissions,” Giles told the lawyers. “I have not digested them.” The 2004 lawsuit was filed by Will Evans, the son of Marie Evans, who died of lung cancer in 2002 at age 54. Lawyers for the family say the Greensboro, N.C.-based company should be held responsible for Marie Evans? exposure to cigarettes from the time she was 9 and for her eventual addiction to tobacco.
Attorneys for Lorillard argued at Monday’s hearing that the family has not presented enough evidence to prove at trial that the company is responsible for Marie Evans’ 40-year smoking addiction and the effect it had on her health. The case is thought to be the first lawsuit to accuse a tobacco company of targeting black youth in its marketing.
The judge said if she decides to allow the case to go forward, the trial will begin Nov. 1. According to the plaintiff’s lawyers, Marie Evans started getting free Newport cigarettes in her Boston neighborhood when she was 9, initially trading the cigarettes for candy then smoking them when she turned 13. As a child, she was too young to recognize the dangers of smoking and was lured into the habit by Lorillard advertising, the lawyers say.
The plaintiff’s lawyers also claimed Monday that Lorillard committed battery against Marie Evans when she was offered cigarettes as a child. Attorney Rebecca McIntyre said sales people who frequently distributed cigarettes in Marie Evans? neighborhood wore shirts with Newport’s colors on them and sometimes arrived in a van that carried the Newport logo. But Lorillard attorney Andrew McElaney said, ?There is no evidence in this case that will support the finding that Lorillard Tobacco Co. gave Marie Evans cigarettes.? In addition, he said, the lawsuit should have been filed within three years of a heart attack Marie Evans suffered in 1985 to meet the statute of limitations. Besides Newport, Lorillard also makes Kent, True, Old Gold, Maverick, and Max cigarettes.
Plaintiff Verdict: December 16, 2010
A Suffolk Superior Court jury today decided that cigarette maker Lorillard Inc. should be sanctioned for seducing a Roxbury woman into a lifelong and fatal addiction to Newport cigarettes, ordering the company to pay the estate of Marie Evans an additional $81 million in punitive damages. Those sanctions, announced this afternoon in a Boston courtroom, came on top of $71 million in compensatory damages the same jury awarded earlier this week. Evans’s estate was awarded $50 million in compensatory damages, and her son, William, was awarded $21 million. Today, only the estate of Marie Evans, the person directly injured by the company’s actions, was eligible to collect punitive damages.
Evans’s son, William, a Harvard Law School graduate who has spent years battling the tobacco company, wept and hugged one of his attorneys when the punitive damages were announced this afternoon. The jury?s decision came after a short period of deliberation, especially when compared to the six days they spent reviewing the evidence in the civil trial before concluding the tobacco company?s marketing plans induced Evans to start smoking as a child. She died in 2002 from lung cancer.
Earlier today, the main lawyer for Lorillard asked the jurors to no longer hold the company accountable for the past.
“The focus is solely on the present and the future,” Walter Cofer, a Kansas City-based attorney representing tobacco company Lorillard Inc., told jurors. He said the company had rectified the problems that were alleged during the recent trial: The company no longer passes out samples of Newport cigarettes, it no longer advertises cigarettes on radio or television, and the company agrees that cigarettes cause cancer and other diseases.
“You don’t get punished today for moving in the right direction,” Cofer said. But attorney Michael Weisman, representing Evans? estate and her only son, said jurors should punish Lorillard for the acts of the past with a financial penalty to make sure such acts never occur again. Weisman, of the Boston firm Davis, Malm & D’Agostine, said jurors should have no sympathy for a company just because it is now following the law. “That’s like saying, ‘we’re obeying the law because it’s the law.’ That’s impressive,” Weissman said. “How about saying, ‘we’re trying to get children to stop smoking, because it’s the right thing to do?.” The jury had already awarded the compensatory damages in a groundbreaking decision Tuesday that found the company seduced Evans into smoking when she was just 13 by handing out Newport samples.
The sampling was part of a broader marketing strategy to reach out to youngsters in black neighborhoods, where menthol brands are particularly popular. The jury found that Lorillard acted with negligence, breach of trust, and in a manner that was wanton and reckless. The novel aspects of the verdict were that it was the first lawsuit challenging the marketing and sampling of cigarettes to youngsters, and the size of the award. It was believed to be the largest award for compensatory damages in a wrongful death suit against a tobacco company in the country.
The case could have implications in Washington, D.C., where federal officials are considering a ban on menthol cigarettes. Earlier today, both sides introduced financial experts who testified about the financial status of Lorillard, which the jury used in deciding punitive damages.
Robert Johnson, a forensic scientist from California, said that Lorillard is in ?solid? shape and that its revenue from sales grew to $5.2 billion last year, up from $4.2 billion the year before. He said the company has $1 billion in cash at hand. But Robert H. Temkin, a Massachusetts-based certified public accountant testifying for Lorillard, said the company is most appropriately judged by its operating values of about $844 million in yearly income, once liabilities are accounted for.
Boston Globe, September 5, 2011
Milton J. Valencia
Award swells I tobacco lawsuite: Judge’s ruling could double $152m total
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.
Associated Press, November 25, 2012
BOSTON — Willie Evans remembers all the things his mother tried to quit smoking: the patch, the gum and even hypnotism. Her attempts all failed. Marie Evans died of lung cancer in 2002 at the age of 54.
Willie Evans sued Lorillard Tobacco Co., arguing that the company got his mother hooked on smoking by giving away free cigarette samples to children in her Boston housing project in the 1950s and `60s. A jury awarded $152 million in damages, an amount that was later reduced to $116 million.
Lorillard’s appeal is set to go before the highest court in Massachusetts next month. The company argues that the trial judge made a series of rulings that prevented the company from getting a fair trial. For Willie Evans, the appeal is another step in the process for finding justice for his mother. “We think today of what our reaction would be if a tobacco company were to go into a playground and give cigarettes to kids, and we would be outraged,” he said. “My reaction is one of outrage that they would target kids at such a young age.”
During the 2010 trial, Evans’ lawyers said Marie Evans first received free samples of Lorillard’s Newport cigarettes when she was 9 or 10 years old. She said she initially gave them to her older sisters or traded them for candy, but then began smoking Newports herself regularly when she was about 13.
One of Marie Evans’ sisters testified that the cigarettes were delivered in a white truck that attracted adults and children in the Orchard Park housing project in the Roxbury section of Boston.
In a videotaped deposition shown to jurors, Marie Evans said the giveaways had a “large impact” on her.
“Because they were available … I didn’t worry about finding money to buy them,” she said. Evans said she made about 50 attempts to quit but always went back to smoking. “I was addicted. … I just couldn’t stop,” she said.
Lorillard’s lawyers argued during the trial that Evans made the decision to start smoking and continued to smoke even after she suffered a heart attack in 1985 and her doctors urged her to quit.
The company denied giving away cigarette samples to children. In its appeal, Lorillard said it was denied a fair trial, in part because the judge allowed the jury to hear about Evans’ claim that the company marketed its cigarettes to African-Americans and children. “This story was obviously racially charged and inflammatory,” the company’s lawyers argued in court documents filed in their appeal.
“The racial aspects of the story were also entirely irrelevant. There was no evidence that Lorillard conceived Newport as an `African-American’ brand. The evidence was that Lorillard marketed Newport to all races, using the same advertising campaign in magazines directed to African-Americans as it did in general circulation magazines.” Evans’ lawyers declined to comment on Lorillard’s appeal. In court documents, they said the trial judge “acted well within her discretion in admitting evidence of Lorillard’s false and misleading marketing to youth and to African-Americans.”
Lorillard believes it has a strong case and is optimistic the Supreme Judicial Court will overturn the verdict “based on errors made at trial,” a spokesman said. “We believe the plaintiff prevailed at trial due to significant departures from Massachusetts law in several important aspects in a proceeding which violated Lorillard’s fundamental due process rights,” said spokesman Gregg Perry.
Perry said that if the judgment is upheld, “it would have the potential to induce a flood of litigation against manufacturers selling all manner of products in Massachusetts and thereby undermine the state’s business climate.” Several business groups filed friend-of-the-court briefs supporting Lorillard’s appeal, including the Product Liability Advisory Council Inc. and the U.S. Chamber of Commerce. The Supreme Judicial Court is scheduled to hear oral arguments Dec. 3.”