Late last year, Marie Evans told a Boston jury how she got hooked on cigarettes. She described receiving Newports starting at age 9 from Lorillard Tobacco Co. representatives who came into her Roxbury, Mass., neighborhood in the late 1950s and early 1960s to give away free samples. She was smoking by age 13.
Evans couldn’t be in the courtroom, however — the jury heard her testimony via a video deposition taped in May 2002, shortly before her death from lung cancer at age 54.
“Marie Evans was a special woman,” said attorney Michael Weisman of Boston firm Davis Malm & D’Agostine, who represented Evans’ son, Willie Evans, in a products liability suit against Lorillard. “She was straightforward, courageous and dignified. That video had a tremendous impact on me, and I presented it proudly to the jury. I think it likely had the same impact on the jury.”
After hearing three weeks of testimony in a suit that centered on whether the company had distributed free cigarettes to black children to get them addicted, the jury returned a $152 million verdict against Lorillard. It was the largest verdict to date in an individual smoking and health lawsuit. (Larger verdicts in Florida and California were later reduced.)
“This was a closely watched trial,” said Edward Sweda Jr., a senior attorney with Northeastern University School of Law’s Tobacco Products Liability Project. “It has implications across the country. One aspect that was groundbreaking was that it’s the first lawsuit that focused primarily on the industry’s practice of handing out samples.”
Sweda said that practice was common among tobacco companies during the period in question.
Coverage of the trial landed on the front page of The Boston Globe, and reporters closely followed the testimony both by Evans and by tobacco executives who denied that the company gave free cigarettes to kids. Lorillard is the third-largest tobacco company in the United States and manufactures the Newport, Old Gold and Kent brands, among others.
The trial pitted Weisman and his four-attorney team — which had not handled a tobacco litigation case before — against a team of lawyers led by tobacco industry defense powerhouse Shook, Hardy & Bacon that included local counsel from Boston firms Nutter McClennen & Fish and Prince Lobel Glovsky & Tye.
Shook Hardy partner Walter Cofer led the defense at trial, but referred questions about the lawsuit to Lorillard General Counsel Ronald Milstein. Milstein did not return calls for comment.
Willie Evans, a graduate of Harvard Law School and the executor of Marie Evans’ estate, played an important role in the early stages of the lawsuit and took the lead in the decision to tape the deposition of his mother, Weisman said.
Evans filed suit in Massachusetts superior court in June 2004 raising numerous claims, including that Lorillard failed to disclose evidence that smoking is addictive and causes fatal diseases; that it continued to distribute dangerous cigarettes despite knowing the hazards; that giving away free cigarettes to children constituted a public nuisance; and that the company’s actions led to Marie Evans’ wrongful death.
According to the complaint and to courtroom testimony, Marie Evans became addicted to cigarettes after receiving them as a child during Newport giveaways. She initially was unaware of the health hazards, the suit claimed, and was unable to kick her habit even after suffering a heart attack in 1984 at age 38. She was diagnosed with lung cancer in 2001 and died the following year.
Attorneys for Lorillard attempted to move the case to federal court soon after it was filed, but the plaintiffs were able to move it back to state court. “The events that were relevant happened in Boston, and we thought it was important that a Boston jury hear the case,” Weisman said.
Lorillard denied the allegations and in 2007 moved to dismiss the case. That motion was allowed in part on several of the claims including fraud and misrepresentation, but denied in full on several others including the wrongful death and breach of warranty claims.
The trial opened on Nov. 12 with a jury of 11 women and three men. In addition to Marie Evans’ video deposition, the jury heard from plaintiff’s witnesses who recalled the cigarette giveaways. The defense called witnesses who lived in that area during the 1950s and 1960s who didn’t remember any cigarette distributions.
Weisman presented internal Lorillard documents indicating the company did “sampling” to a “fun and youthful audience,” which he told the jury was a euphemism for giving cigarettes to children. The defense acknowledged giving away cigarettes, but to adults only.
At trial, the defense argued that Marie Evans knew smoking was dangerous, but chose to continue the practice anyway. Attorneys pointed out that her father died of lung cancer in 1970 and that she quit smoking for a short time in 1990 only to take up cigarettes again.
The jury heard 16 days of testimony and deliberated for six. On Dec. 14, they found that Lorillard had been negligent in its packaging, marketing and distribution of Newports and in failing to warn Marie Evans of the risks. The company also was negligent in giving cigarettes to minors, they found.
The jury determined that Lorillard was 70% responsible for Marie Evans’ lung cancer, while she herself was 30% responsible. They awarded Willie Evans $21 million for the loss of his mother and another $50 million for Marie Evans’ pain and suffering. Several days later, the jury awarded an additional $81 million in punitive damages.
“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,” the company said in a formal statement following the verdict. The company has said it will appeal.
Weisman, who said he awaited the verdict while playing Scrabble in the courtroom because the game was a favorite pastime of Marie and Willie Evans, believes the jury came to the right decision. “They set out to addict a generation of children,” he said.
Karen Sloan can be contacted at email@example.com.