Posts Tagged ‘litigation’
PHAI Joins Center for Science in the Public Interest in Filing Lawsuit Against Coca-Cola for Deceptive Marketing
Wednesday, January 4th, 2017
BOSTON – Two non-profits that use litigation as a public health strategy have joined forces in a lawsuit accusing the Coca-Cola Company (“Coke”) along with the American Beverage Association (“ABA”) of misleading the public about the science that links heart disease, obesity, and diabetes to consumption of sugary beverages. For years, the Public Health Advocacy Institute at Northeastern University School of Law in Boston and the Center for Science in the Public Interest in Washington, DC relied on civil litigation as a tool to achieve policy change to benefit public health.
Download the Complaint here.
The lawsuit was filed today in federal court in the Northern District of California on behalf of a California non-profit, the Praxis Project, which has had to devote resources to correcting the misleading messages that Coke and the ABA have disseminated. These include spreading the notion that the main cause of obesity is lack of exercise or that “a calorie is a calorie,” regardless of whether it comes from Coke or from kale. The science, in fact, shows that sugary drinks such as Coca-Cola have been found to play a real role in the obesity crisis and that calorie intake is more significant than calorie expenditure in terms of the problems of obesity and overweight. The lawsuit also accuses Coke of failing to comply with its pledge to not market to children. The action alleges violations of California’s Business and Professional Code as well as negligent and intentional breaches of a special duty to protect the consuming public.
The plaintiffs seek a court order to enjoin Coke and ABA from denying the link between sugary drinks and obesity, diabetes, and cardiovascular disease and to stop any marketing to children. They also seek a court order for defendants to disclose and publish all research they have directly or indirectly conducted on the impact of sugary beverages on health and the impact of exercise on obesity vs sugary drink consumption. Furthermore, the plaintiff asks the court to order the defendants to fund a corrective public education campaign and place prominent warnings on their internet sites that consumption of sugary beverages can lead to obesity, diabetes, and cardiovascular disease.
The attorneys for the plaintiff include Maia C. Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer, litigation director of the nonprofit Public Health Advocacy Institute; and Michael R. Reese of the law firm Reese LLP.
PHAI attorney Andrew Rainer considers this lawsuit to be about defending science from manipulation by those who seek to increase profit at the expense of public health. Rainer says, “the Public Health Advocacy Institute has joined in this complaint in an effort to prevent the distortion of science for corporate gain. Just as the tobacco industry manipulated and distorted science for decades to deny the dangers and addictiveness of cigarettes, and the oil industry works to systematically distort science to deny climate change, Coca Cola and the American Beverage Association are engaged in a campaign to deny the established science linking sugar-sweetened beverages to obesity and diabetes.”
Mark Gottlieb, executive director of the Public Health Advocacy Institute, characterizes this filing as, “the tip of the iceberg when it comes to purveyors of sugar-added products seeking to shift all responsibility for health harms to their consumers. Coke pays dietitians to tell consumers things like drinking coke can be a healthy snack and pays scientists to deny that sugary drinks are linked to obesity and then suggests that the main cause of obesity and related disease is lack of exercise. The hypocrisy of suggesting to consumers that burning calories through laughing can offset the harmful effects of drinking soda is no laughing matter. And, yes, Coke really suggested that.”
PHAI’s partner, the Center for Science in the Public Interest included the following bullet points from the complaint in its press release.
- Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.”
- “There is no unique link between soda consumption and obesity,” claims a post on the ABA’s website.
- “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
- Coke’s incoming CEO, James Quincey, equated sugar-sweetened beverages to any other calories, dismissing their unique contribution to the obesity epidemic by asserting such beverages contribute only two percent of calories overall.
- Coke also paid health professionals to promote sugar-sweetened beverages, including one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”
The Public Health Advocacy Institute set up its Center for Public Health Litigation in 2014 in order to hold responsible corporate interests that harm public health and defend policies that protect public health.
Tuesday, May 24th, 2016
On May 23, 2016, the widow and children of baseball great Tony Gwynn filed a wrongful death lawsuit against Altria Group alleging that the manufacturers of Skoal smokeless tobacco’s negligence, fraud, defective design, and failure-to-warn caused the death of the Hall of Famer in 2014.
Richard Daynard, PHAI’s president and University Distinguished Professor of Law at Northeastern University, discussed the case in the New York Times and also on ESPN along with Neil Romano of the National Spit Tobacco Education project.
Monday, September 21st, 2015
In March, the non-profit Public Health Advocacy Institute (“PHAI”) announced that it had formed a center to bring important public health litigation, and had hired a former Assistant Attorney General to oversee this litigation in the Massachusetts courts. Today, PHAI, which is based at Northeastern University, announced the filing of its latest suit, and also the formation of a strategic alliance with a group of prominent Boston lawyers to pursue important public health cases, including cases against the tobacco industry on behalf of the families of former smokers who have suffered devastating disease from cigarettes.
“We are so pleased to be working with this outstanding group of lawyers to help some of tobacco’s victims in Massachusetts,” said Andrew Rainer, PHAI’s Litigation Director and Director of the Center for Public Health Litigation. Working together with PHAI will be:
- Lisa Arrowood, Kevin Peters and Jed DeWick of Arrowood Peters, LLP
- Sam Perkins of Brody, Hardoon, Perkins & Kesten, LLP
- Neil Leifer, of Neil T. Leifer, LLC
- Leo Boyle, Michael Bogdanow and Valerie Yarashus of Meehan, Boyle, Black & Bogdanow, PC
PHAI’s latest suit, filed today in Middlesex Superior Court in Woburn together with Perkins and Brody, Hardoon, Perkins & Kesten, LLC, is brought on behalf of Linda Troupe and her husband Carleton against R.J. Reynolds Tobacco Company of Winston-Salem, North Carolina, and Donelan’s Supermarkets, Inc. of Littleton, Massachusetts. Mrs. Troupe, who smoked Winston and Kool cigarettes for over 35 years, was diagnosed in 2013 with throat cancer. The suit alleges that, in order to treat Mrs. Troupe’s cancer, doctors had to remove her larynx, and she has lost most of her ability to speak with her four children and eleven grandchildren.
Arrowood, Peters, DeWick and Leifer will be working with PHAI on two cases previously filed in the Middlesex Court — the first brought for the family of James Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years, and the second brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking Marlboro cigarettes 25 years earlier.
Arrowood is the current President of the Boston Bar Association, and a fellow of the American College of Trial Lawyers. Perkins is a founding partner of Brody, Hardoon, Perkins & Kesten, and a previous Lawyer of the Year. Leifer, a former partner of Thornton & Naumes (now the Thornton firm), represented the Commonwealth of Massachusetts in its successful litigation against the tobacco industry to recover the health care costs incurred by the state in caring for residents harmed by smoking. Boyle and Yarashus are past Presidents of the Massachusetts Bar Association. Boyle also served as President of the Association of Trial Lawyers of America (now the American Association for Justice), and is a fellow of the American College of Trial Lawyers.
Wednesday, August 5th, 2015
In 2014 and 2015, the Public Health Advocacy Institute (PHAI) conducted testing to determine whether kids could purchase lottery tickets from the vending machines located in a number of area supermarkets. At markets in Cambridge, Somerville, and Arlington, Massachusetts, a teenage tester was easily able to purchase lottery tickets in every attempt.
Massachusetts law expressly prohibits the sale of lottery tickets to “any person under age eighteen.” Yet the Massachusetts Council on Compulsive Gambling reports that over two-thirds of teenage boys (aged 14-17) have gambled in the past year, and over half of teenage girls have done so. About a third of these children gambled by playing lottery games.
On March 10, 2015, PHAI sent Stop & Shop a legal demand under Massachusetts’ consumer protection law, on behalf of the father of the teenage purchaser, Cambridge City Councilor Craig Kelley, and on behalf of the national non-profit Stop Predatory Gambling Foundation, seeking steps to prevent children from using the lottery ticket vending machines in the company’s stores. According to the demand letter, selling the tickets to minors is an unfair and deceptive sales practice prohibited by law.
The action drew media attention and led to an editorial in the Boston Globe urging that the problem be addressed. Representatives from Stop & Shop responded by working with the Massachusetts Lottery Commission to activate drivers’ license scanners in the lottery ticket machines, which operate to confirm that a lottery ticket purchaser is at least 18 years old before the machine will vend a ticket. Stop & Shop informed PHAI last week that all of its lottery ticket vending machines would have these protections in place by the end of July, 2015.
PHAI staff spot checked Stop & Shop machines in 3 counties and found that its machines will, in fact, not operate without first scanning an adult driver’s license.
Cambridge City Councilor Kelley said he was pleased to see some progress made. “It’s a real problem,” Kelley said. “As a father and as a city councilor, I was truly shocked at how easy it was for a kid to buy tickets from these machines.”
Mark Gottlieb, executive director of PHAI, noted that “While Stop & Shop’s efforts to quickly address the problem are laudable, the vast majority of lottery ticket vending machines in the state don’t have driver’s license scanners. This includes many places like bowling alleys and convenience stores that are frequented by kids.” Gottlieb added that “we will continue to work to prevent sales of scratch tickets to kids through vending machines as a public health policy measure.”
Wednesday, May 27th, 2015
In recent months, PHAI has worked with concerned parents and a national anti-predatory gambling group to address youth access to instant lottery tickets through unattended vending machines. Fears around easy access to scratch tickets by kids grew when we found that a 14-year-old was able to easily purchase tickets from lottery vending machines in supermarkets in Arlington, Cambridge, and Somerville, Massachusetts. Each attempt was made in the late afternoon without any effort to conceal the sale. In each instance, the teenager was able to approach the machine and make a slow and deliberate purchase while customers and store personnel were nearby.
PHAI filed a lawsuit on behalf of the father of the teenager as well as Stop Predatory Gambling against one of the supermarket chains, Star Markets, and has initiated legal action against Stop & Shop. In the story published today in the Boston Globe, the Massachusetts Lottery Commission announced that some vending machines will now use a scanning technology feature to verify the age of purchasers through their drivers’ license or state-issued identification. The executive director of the Commission, Beth Bresnahan, indicates that, “following some incidents of underage play that recently transpired . . . the Lottery is activating this feature across all of the approximately 500 PAT machines currently in the field to fully protect the integrity of ticket sales at retail locations.” “PATs,” or “Player Activated Terminals,” represent less than 30% of all lottery vending machines in Massachusetts.
The “incidents” Ms. Bresnahan referred to are, presumably, those that were brought to the attention of the Commission through PHAI’s litigation and coverage of the lawsuit by the Boston Globe as well as its strong editorial calling for effective age-restriction enforcement by the Commission.
It remains to be seen whether these new measures will be effective, particularly because they affect only a fraction of the vending machines that are in places frequented by youth.
R.J. Reynolds’ Shareholder’s Report from Winston-Salem: A “Good Year,” a Proposal to Merge and a Death Toll that Must Not Be Acknowledged
Monday, May 18th, 2015
By Edward L. Sweda, Jr.
Like clockwork, the 2015 Reynolds American (RAI) Annual Shareholders Meeting started precisely at 9:00 A.M. on Thursday May 7, 2015 at the company’s headquarters in Winston-Salem, North
Carolina. Seventy-five minutes later, the meeting was adjourned.
Before I could attend the meeting, I had to proceed through intense security, with machines provided by Security Detection, empty my pockets and hand over my camera to the RAI staff.
The meeting was held again in the company’s main auditorium that seats around 200 people. On the dais were the following representatives of RAI management: Thomas C. Wajnert, the Non-Executive Chairman of the Board, who ran the meeting; Dara Folan, Senior Vice President, Deputy General Counsel and Secretary; Mark Holton, Executive Vice President and General Counsel; Andrew Gilchrist, the Chief Financial Officer and Executive Vice President; and Susan M. Cameron, RAI’s President and Chief Executive Officer. After announcing the rules of conduct for the meeting and potential penalty for violation of the rules, Mr. Wajnert turned to Ms. Cameron for an overview of the company’s business performance for 2014. Curiously, Ms. Cameron began by noting that 2014, while being a “good year” for RAI, “seems a long time ago.” She cited some specifics of RAI’s 2014 performance, including Camel’s high market share and VUSE’s “successful national expansion.” She described RAI’s plans to acquire Lorillard Tobacco Company as the “Right Decision at the Right Time” that is still awaiting regulatory approval by the U.S. Federal Trade Commission. She also called on the U.S. Food and Drug Administration to adopt different regulations for e-cigarettes than for combustible cigarettes. Ms. Cameron made no mention of any of the company’s customers who died during 2014 from smoking-caused diseases.
Much of the remainder of the meeting dealt with farm labor issues. Many members of FLOC (the Farm Labor Organizing Committee of the AFL-CIO) were in the audience; they dominated the 30-minute question-and-answer session. While Mr. Wajnert admitted that “bad conditions exist” on tobacco farms in North Carolina, he claimed that “we are working with our growers” to try to remedy those conditions. FLOC representatives cited ongoing violations of child labor laws in the tobacco fields and emphasized that many of the farm workers were doing extremely hard and dangerous work for a minimum wage salary of $7.25 per hour. Another major grievance was the fact that RAI, despite its claims of transparency, continues to refuse to provide FLOC with a list of tobacco growers with which RAI has contracts to provide it the tobacco for its cigarettes.
During the question-and-answer session, I asked the following question on ongoing tobacco litigation.
“During last month’s RAI First Quarter Earnings Conference Call, Chief Financial Officer and Executive VP Andrew Gilchrist said that ‘a significant portion of our legal budget at this point is being spent on Engle.’ The Engle verdicts in Florida keep on coming. Just last week, a Florida jury returned a verdict of over $6 million for a plaintiff. Meanwhile the Boston Globe last month reported on an upsurge in tobacco product liability lawsuits being filed in Massachusetts – an upsurge that was spurred on by a recent state supreme court ruling that is favorable to plaintiffs.
“I have a two-part question. Would you clarify that when Mr. Gilchrist or other executives refer to the company’s legal budget, that it includes not just salaries of company lawyers and payments to local counsel but also the payment of judgments in cases where plaintiff verdicts have survived all appeals?
“Secondly, instead of using broad adjectives like ‘significant,’ would you give shareholders the specific dollar amount of the company’s legal budget and a breakdown by category of cases?”
In response, Mr. Holton said that the amount paid in judgments is not included in the “legal budget” category. He also said that the company provides overall amounts for the legal budget, though not broken down by category of cases, to the U.S. Securities and Exchange Commission.
Two shareholder resolutions were defeated. The first, supported by the North Carolina AFL-CIO, called on RAI’s Board of Directors to prepare a report “on the steps the Company has taken to reduce the risk of acute nicotine poisoning (‘Green Tobacco Sickness’) for farmworkers in the Company’s supply chain for tobacco. The report should include a quantitative summary of the results of the Company’s inspections of its suppliers.” The supporters of the resolution noted that children “who are under age 18 work as tobacco farmworkers in the United States and are exposed to Green Tobacco Sickness as an occupational risk. A 2014 Human Rights Watch report described symptoms of Green Tobacco Sickness in nearly three-quarters of 141 child tobacco workers, ages 7 to 17, who were interviewed and worked in North Carolina, Kentucky, Tennessee and Virginia in 2012 or 2013.”
The second resolution, which dealt with issue of forced labor in tobacco fields, was sponsored by the Province of St. Joseph of the Capuchin Order in Milwaukee, Wisconsin. Specifically, the proposal noted that, “with U.S. immigration reform stymied, undocumented workers (often the main workforce in many agricultural areas) can be exploited. In their country of origin they often must pay contract labor brokers thousands of dollars to cross our borders; once here, they often are under the control of other labor contractors in order to work on U.S. farms. This practice results in forms of forced and compulsory labor on many, if not most, U.S. farms, including tobacco farms.”
The proposal called on RAI’s Board of Directors to “create a policy that all its suppliers throughout its tobacco procurement supply chain verify (with independent monitoring) their commitment and compliance regarding non-employment, directly or indirectly, of laborers who have had to pay to cross the U.S. border to work or, once here, to work on U.S. farms.”
Father Michael Crosby presented the proposal and noted that currently RAI is financially benefitting from forced labor. That is a fundamental moral issue that must be addressed, he added.
In seconding this resolution, I noted that RAI’s opposition statement that the issue of forced labor is “an issue that should be addressed in a comprehensive manner as part of immigration reforms and policies at the national level” was technically true but amounted to an excuse to pass the buck since there is no likelihood that the current Congress will allow a comprehensive immigration reform bill to be voted upon, given the track record of the House majority in the last Congress.
So, in this regard as in so many other aspects of Reynolds American’s business, the status quo continues.
Thursday, March 26th, 2015
For Immediate Release
Contact: Mark Gottlieb – 617-373-2026
The Public Health Advocacy Institute (“PHAI”) announced today that its newly formed Center for Public Health Litigation has filed lawsuits against two major tobacco companies and several local distributors on behalf of the families of two former smokers who suffered devastating disease from smoking cigarettes.
“This is the first time a non-profit organization has directly taken on the tobacco industry in court,” said Richard Daynard, University Distinguished Professor at Northeastern University School of Law and the President of PHAI. “Big Tobacco kills more than 50% of the people who buy its products, and it has for years tried to deny its legal responsibility for this public health calamity. The Center for Public Health Litigation is going to ask the Massachusetts courts to hold the tobacco companies accountable in these two cases, and in more cases to be filed soon.”
The two cases were filed yesterday afternoon in the Middlesex Superior Court in Woburn. The first was brought for the family of James E. Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years. Mr. Flavin had tried repeatedly to quit smoking, using almost every method he could find, including
nicotine patches, hypnosis, and numerous other cessation products. The companies named as defendants in Mr. Flavin’s case are Lorillard Tobacco Company, manufacturer of Newport cigarettes, and two local distributors, Garber Bros, Inc. of Stoughton and Albert H. Notini & Sons, Inc. of Lowell.
The second case was brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking 25 years earlier. Ms. Greene, like many others, had begun smoking as a result of being given free Marlboro cigarettes in downtown Boston when she was a teenager. The companies named as defendants in Ms. Greene’s case are Philip Morris USA, Inc., manufacturer of Marlboro, and Star Markets Company, Inc. of West Bridgewater, owner of the store where Ms. Greene bought her cigarettes for years.
According to Andrew Rainer, the Director of the Center for Public Health Litigation, “Massachusetts is now the best state in the country in which to bring suit against the manufacturers and sellers of cigarettes, because of a 2013 ruling by the Massachusetts Supreme Judicial Court.” In that 2013 case, Evans v. Lorillard Tobacco Co., the Court ruled that a manufacturer of cigarettes could be held responsible for the death of one of its customers, because it could have manufactured a cigarette that was safer and less addictive, but chose not to. The high Court’s decision also upheld an award of damages to the deceased customer’s family of $35 million plus interest. The case was later settled for $79 million.
Friday, October 10th, 2014
The Center for Public Health Litigation, a project of the Public Health Advocacy Institute at Northeastern University School of Law, has launched an advertising campaign in Massachusetts to help inform victims of cigarette companies of their legal rights. While Massachusetts is the best state in the nation to hold cigarette makers responsible in court for the decades of damage they have done after two landmark rulings from the state’s highest court, few Massachusetts victims realize that they are in a position to find some measure of justice in the courtroom.
The Center for Public Health Litigation seeks to inform victims of their rights and, where possible, provide or find legal representation to hold the industry liable. The ad, reproduced below, will appear in newspapers and other media over the next several weeks. It makes references to the $79 million payment by Lorillard Tobacco Company to the family of lung cancer victim Marie Evans.
Unlike other advertising by trial lawyers, this is an effort by a non-profit public health-committed organization. It is one of several public health legal initiatives being undertaken by PHAI’s new Center for Public Health Litigation.
Friday, January 17th, 2014
FOR IMMEDIATE RELEASE
Contact: Mark Gottlieb (617-373-2026) or Edward L. Sweda, Jr. (617-373-8462)
Boston – The U.S. Surgeon General’s Report on Smoking and Health, which was released today at the White House, highlighted the importance of litigation against tobacco companies over the past 50 years in the United States. Thanks to a landmark 2013 ruling by the Massachusetts Supreme Judicial Court (SJC) in the case of Evans v. Lorillard Tobacco Co., the Bay State is poised to become the most attractive state in which to file product liability lawsuits against tobacco companies.
“The current state of the law in Massachusetts is that any cigarette that addicts or maintains the nicotine addiction of consumers is defective. This precedent in Evans will tremendously benefit smokers who are seeking legal redress against tobacco manufacturers in Massachusetts,” said Mark Gottlieb, Executive Director of the Public Health Advocacy Institute, which is based at Northeastern University School of Law.
In the Evans case, a Suffolk County jury in 2010 awarded the son of Marie Evans, a woman who died of lung cancer in 2002 at the age of 54 after she had been given free packs of Newport cigarettes as a child at the Orchard Park Housing Project, $71 million in compensatory damages – a figure later reduced to $35 million. In June 2013, the SJC, while overturning an $81 million punitive damages award solely due to a flaw in jury instructions, upheld the compensatory damages award and ruled that it declines “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.” In October, Lorillard announced that it had settled the case for $79 million ($35 million plus accumulated interest) and dropped its threatened appeal to the U.S. Supreme Court.
“The SJC’s opinion in Evans now stands as a landmark precedent, binding in Massachusetts and potentially persuasive in any other jurisdiction in the country,” said Edward L. Sweda, Jr., PHAI’s Senior Attorney. “Anyone who developed a tobacco-related disease from smoking any cigarettes (other than “ultra low tar and nicotine” cigarettes) in Massachusetts can now recover their damages from the cigarette manufacturer,” Sweda added.
Massachusetts residents and their families who have suffered from a disease or death caused by smoking should contact PHAI.
Historic $79 Million Cigarette Settlement Signifies Beginning of Wave of Tobacco Cases in Massachusetts
Wednesday, October 23rd, 2013
If you someone in your family was recently harmed by smoking, please see our cigarette lawsuit information page.
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.
- Whistleblowers came forward offering their testimony of what they saw.
- Congress held embarrassing hearings where cigarette company CEOs blatantly lied under oath on national television.
- States sued cigarette manufacturers for billions of dollars lost treating sick smokers on Medicaid.
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.”