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Historic $79 Million Cigarette Settlement Signifies Beginning of Wave of Tobacco Cases in Massachusetts

October 23rd, 2013

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Boston

FOR IMMEDIATE RELEASE

CONTACT: Mark Gottlieb – 617-373-2026

Massachusetts is now the most favorable state in the country to bring a cigarette smoking personal injury case.  A Massachusetts Tobacco Case Information Hotline has been established for victims of smoking and their families to learn more at: 888-991-8728 or here at www.MATobaccoCase.com.

Today’s announcement in Lorillard’s 8K SEC filing of a $79 million settlement for compensatory damages and interest and conclusion of Evans v. Lorillard Tobacco Co. marks the end of the first tobacco trial in Massachusetts since 1990.  Much has changed since then.

In 1994, a torrent of extraordinarily damaging documents from the cigarette companies’ internal files laying out how the companies hid what they knew about the dangers of their products from customers and government became available to the public.

After years of constant litigation and public disclosure of the industry’s bad behavior, in 2006, a federal judge issued a scathing opinion detailing in 1,500 pages of factual findings the industry’s improper activities and finding them liable for racketeering.

These developments have transformed the tobacco litigation landscape.  In Florida, under special rules subsequent to the dismissal of a class action, 71 out of 104 individual tobacco trials held over the past 4 years have resulted in verdicts for the plaintiff.  But the most important state for tobacco litigation is not Florida. It’s Massachusetts.

Massachusetts, benefitting from the combination of two key rulings by the Supreme Judicial Court, is the best state in the nation for litigation against cigarette manufacturers.

In Haglund v. Philip Morris (847 N.E. 2d 315 (2006)), the Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the only court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice defense” is unavailable to the tobacco companies.  The Court wrote that, “If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose.”  The affirmative defense that the smoker’s behavior was unreasonable or should have known the risks is not available in Massachusetts.

In this past June’s Supreme Judicial Court ruling in the case announced as settled today, Evans v. Lorillard (465 Mass. 411 (2013)), the Court held that Lorillard breached the implied warranty of merchantability and that cigarettes that were addictive and caused disease were not fit to be sold in Massachusetts.  This rendered virtually every cigarette sold here as defective. The Court reasoned, “We decline to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities.  . . . Rather, we conclude . . . that a reasonable jury could find from the evidence presented that a low tar, low nicotine cigarette constituted a safer reasonable alternative to Lorillard’s Newport cigarettes.”

By “low tar, low nicotine cigarette,” the Court is not referring to brands that were deceptively marketed as “light cigarettes.”  Rather it means cigarettes that do not addict and expose consumers to an array of carcinogens. While the cigarette companies could have sold such products, virtually no cigarettes sold in Massachusetts utilized such a reasonable alternative to the deadly and addictive products that have been so lucrative for Philip Morris, R.J. Reynolds, Lorillard, Brown and Williamson, American Tobacco Co., or Liggett for so long.

As the book closes on Evans v. Lorillard, a new era of tobacco litigation based in Massachusetts is about to begin.  Individuals and family members of those who have suffered from a cigarette-caused illness such as lung cancer, COPD, Buerger’s disease or bladder cancer, to name a few, should contact the Massachusetts Tobacco Case Information Hotline at 888-991-8728 to learn more about their legal rights.  They can also contact the Hotline via the web here.

Mark Gottlieb, Director of the Public Health Advocacy Institute, at Northeastern University School of Law noted that, “The time for so many tobacco industry victims in Massachusetts to come forward to hold the industry responsible is finally here.”

Edward Sweda, Senior Attorney for the Institute stated, “The state of the law in Massachusetts, as set forth by the Supreme Judicial Court, is that any cigarette that addicts or maintains the nicotine addiction of consumers is defective. This is great news for smokers who seek legal redress from the companies that put these defective products on the market. Conversely, it is disastrous news for the cigarette companies.”

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