Jury holds tobacco company accountable for targeting minors with free cigarette samples

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Case in Point

January 11, 2011

Jury holds tobacco company accountable for targeting minors with free cigarette samples 

The plaintiff alleged that Lorillard Tobacco Co., which distributed free Newport cigarettes to her and other children near a neighborhood playground, was grossly negligent in marketing its product to minors and engaged in a campaign to target them, among other claims. The jury awarded $152 million, including $81 million in punitive damages. Evans v. Lorillard Tobacco Co.

When Marie Evans was a child, a crew of attractively dressed young men and women visited her neighborhood on numerous occasions—parking their van near a playground and school—and distributed free samples of Newport cigarettes to her and other children. At first, Evans traded the samples for candy, but at 13, she began smoking them.

Evans soon became addicted to nicotine and smoked one to two packs a day for nearly 40 years. In 2002, at 54, she was diagnosed with lung cancer. She died about six months later and is survived by one adult son.

Evans’s son, on behalf of her estate, sued Lorillard Tobacco Co., which manufactured the Newport brand, alleging that the company was negligent and grossly negligent in marketing its product to children and that it had engaged in a campaign to target minors. He also alleged that Lorillard failed to warn of its cigarettes’ health risks and addictive properties before 1970, voluntarily undertook and breached a duty to research its products’ health hazards and disclose the results of that research, and breached its implied warranty of merchantability by selling a defective and unreasonably dangerous product and failing to warn of the health risks.

The plaintiff introduced Evans’s taped deposition testimony that she recalled a white box truck similar to an ice cream truck driving around her apartment complex, with the driver passing out free samples of Newport cigarettes. He also presented internal Lorillard documents discussing marketing strategies for the brand. One document notes that Newport was advertised as a “fun cigarette” that “obtained a youthful group as well as an immature group of smokers.” Another document cites the “fantastic” success of Newport among African-American smokers and states, “Our profile taken locally shows this brand being purchased by black people (all ages) . . . but the base of our business is the high school student.” The documents show that giving away free samples was part of the company’s campaign to build its market in the African-American community.

Lorillard denied that it targeted minors or distributed free samples to children. It also argued that Evans knew of the danger of cigarettes as an adult. The plaintiff countered with evidence that Evans tried to quit more than 50 times and that nicotine in cigarettes is more addictive than heroin, cocaine, or alcohol.

The jury awarded $71 million in compensatory damages, allocating fault at 70 percent to Lorillard and 30 percent to Evans. In the second phase of trial, the jury awarded $81 million in punitive damages. Under Massachusetts law, the apportionment of fault applies to the verdict regarding negligence, but not to the breach of implied warranty product defect claim.

Citation: Evans v. Lorillard Tobacco Co., No. 2004-2840-A (Mass., Suffolk Co. Super. Dec. 16, 2010).

Plaintiff counsel: Michael D. Weisman, Thomas Frisardi, Joshua S. Grossman, Kendra Kinscherf, and Betsy McIntyre, all of Boston.

Plaintiff experts: Michael Cummings, epidemiology/addiction/history of smoking and health controversy, Buffalo, New York; William Farone, cigarette design, chemistry, and biological effects, Anaheim, California; Neal Benowitz, pharmacology/nicotine addiction, San Francisco; Robert Johnson, economics/Lorillard’s ability to pay punitive damages, Los Altos, California.

Defense experts: Kathleen Brady, addiction psychology, Charleston, South Carolina; and Robert Temkin, accounting/Lorillard’s ability to pay punitive damages, Barnstable, Massachusetts.

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