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Posts Tagged ‘Lorillard’

Boston jury delivers $81 million punitive damages verdict against Lorillard

Thursday, December 16th, 2010

A Suffolk Country jury, after finding Lorillard liable on December 14, 2010  for the wrongful death of a woman who was given free Newport cigarettes by the company as a child growing up in a Boston public housing project, today issued a punitive damages verdict of $81 million against the maker of Newports.

The jury heard testimony from an economist and an accountant who discussed the assets of Lorillard and  its ability to pay.  The plaintiff called forensic economist Robert Johnson who testified that Lorrilard’s net sales this year came out to about $81 million for a 5 day work week.  He also noted that Lorillard was on track to make a profit of over a billion dollars this year.

The defense called local certified public accountant, Robert H. Temkin, who suggested that Lorillard’s ability to pay was less than what Johnson suggested.

The defense’s closing argument, delivered by Shook, Hardy & Bacon’s Walter Cofer, told the jury that, although he shares a name with his grandfather, they are not the same man.  Likewise, he reasoned, the Lorillard of today is not the same company that parked a truck next to a playground and gave free cigarettes to children.

The purpose of punitive damages is to punish bad conduct and deter future bad conduct.  Cofer argued that that because the tobacco industry is now regulated the the U.S. Food and Drug Administration, the regulatory agency will ensure that no future bad conduct takes place.  As for the punishment, Cofer analogized that it was sometimes necessary to “whack a mule on the rump” to get it moving in the right direction.  But, he said, once that mule was heading the right way, there was no need to keep whacking it. Lorillard now admits that its products are addictive and deadly, so “whacking it again and again is not necessary.”

Michael Weisman of Davis, Malm & D’Agostine in Boston told the jury that just because Lorillard is now subject to new federal regulatory authority, it does not get them off the hook for what they did and what they do not now do, like make a serious commitment to keep kids from smoking today.

The jury was instructed by judge Elizabeth M. Fahey to consider the character, duration, and nature of Lorillard’s conduct; the actual harm to the victim in this case; the the magnitude of the harm to potential victims in the future.  The jury retired to lunch and, about 90 minutes later, returned the verdict in the amount of $81 million, bringing the total liability in the trial to $152 million.

Judge Fahey has yet to rule on the question of Lorillard’s liability under Massachusetts consumer protection law, which could increase the defendant’s total liability.  Lorillard is expected to seek a reduction in the amount in its post-trial motions.  It will then likely appeal to the Massachusetts Appeals Couort, then the Massachusetts Supreme Judicial Court, and, if necessary, to the U.S. Supreme Court.

Mark Gottlieb, Director of the Public Health Advocacy Institute at Northeastern University School of Law, who was present for today’s hearing, noted that: “the total verdict of $152 million is currently the largest verdict in an individual smoking and health case. Larger verdicts in California and Florida were later reduced.  The jury’s message to Lorillard was clear:  ‘What was done to Ms. Evans was totally unacceptable.’  More cases involving addicting children with free samples will almost certainly be filed as a result of this case.”

Senior Attorney Edward L. Sweda, Jr., noted, “Today’s award of $81 million in punitive damages clearly reflects this American jury’s outrage at the predatory conduct of Lorillard Tobacco Company – conduct that was a legal cause of Marie Evans’ death from lung cancer at age 54.”

Plaintiff Willie Evans emerges from the courtroom after the verdict



PHAI’s Daynard provides extended audio commentary on Evans verdict

Wednesday, December 15th, 2010

In an interview on WBUR Boston, an NPR affiliate, Professor Daynard explains the case and its significance.

Listen to the interview here.



PHAI publishes Special Verdict Sheet from Evans trial

Wednesday, December 15th, 2010

(Please note that the jury was deadlocked on Questions 5 and 6)

SUFFOLK, SS. CIVIL ACTION NO. 2004-2840-A

WILLIE EVANS, AS EXECUTOR OF THE ESTATE OF MARIE R. EVANS

Plaintiff

v.

LORILLARD TOBACCO COMPANY

Defendant

SPECIAL JURY VERDICT FORM

SECTION 1 -LIABILITY

Question 1: NEGLIGENCE

(Please answer all three subparts, a through c, of Question 1.)

a.         Was Defendant Lorillard Tobacco Company negligent in the design, marketing and/or distribution of Newport cigarettes?

YES__X NO _____

b.         Was Defendant Lorillard Tobacco Company negligent in failing to warn Marie Evans of the health hazards and/or addictive properties of Newport cigarettes at any time prior to 1970?

YES__X NO _____

c.         Did Defendant Lorillard Tobacco Company, directly or through its agents, negligently distribute Newport cigarettes by giving samples of such cigarettes to minors, including Marie Evans?

YES__X NO _____

(If your answer to any subpart of Question 1 is “Yes,” proceed to Question 2. If your answer to all of the subparts of Question 1 is “No,” proceed to Question 3.)

Question 2: CAUSATION AS TO NEGLIGENCE

Was any negligence of Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?

YES__X NO _____

(Proceed to Question 3.)

Question 3: BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

(Please answer both parts, a and b, of Question 3.)

a.         Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability because the Newport cigarettes that it sold to Marie Evans and other consumers were defective and unreasonably dangerous?

YES__X NO _____

b.         Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability by failing to provide consumers, including Marie Evans, an adequate warning of the health hazards and/or addictive properties of Newport cigarettes, at any time before 1970?

YES__X NO _____

(If your answer to either subpart of Question 3 is “Yes,” proceed to Question 4. If your answer to both of the subparts of Question 3 is “No,” proceed to Question 5.)

Question 4: CAUSATION AS TO BREACH OF IMPLIED WARRANTY

Was any breach of warranty by Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?

YES__X NO _____

(Proceed to Question 5.)

Question 5: CIVIL BATTERY

a.         Did Lorillard commit a battery by distributing free Newport cigarettes to Ms. Evans before October 23, 1965 (when she turned 18 years old)?

YES____ NO _____

(Please proceed to Question 6 if your answer to Question 5 is “Yes.” If your answer to Question 5 is “No,” proceed to Question 7.)

Question 6: CAUSATION AS TO CIVIL BATTERY

Was Marie Evans’s receipt of free Newport cigarettes substantial factor in causing her to develop lung cancer?

YES___ NO _____

(Proceed to Question 7.)

Question 7: VOLUNTARY UNDERTAKING OF DUTY

a.         Did Lorillard voluntarily undertake, through the Frank Statement, a duty to research the health hazards of smoking and to disclose accurate information regarding the results of that research to the smoking public, including Marie Evans?

YES__X NO _____

(If your answer is “Yes” to Question 7.a., proceed to Question 7.b. If your answer is “No” to Question 7.a., please proceed to Question 8 and follow the directions.)

b.         Did Lorillard breach the duty that it voluntarily undertook by being negligent in the performance of that duty?

YES__X NO _____

(If your answer is “Yes” to Question 7.b., proceed to Question 7.c. If your answer is “No” to Question 7.b., please proceed to Question 8 and follow the directions.)

c.         Was Lorillard’s breach of the duty that it voluntarily undertook a substantial factor in causing Marie Evans to develop lung cancer?

YES__X NO _____

­

(Proceed to Question 8.)

Question 8: GROSS NEGLIGENCE AND MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT

(If you answered ”yes” to any or all of Questions 2, 4, 6, or 7.c., please answer both subparts of Question 8. If you answered “no” to all of Questions 2, 4, 6, and 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict)

a.         Was Defendant Lorillard Tobacco Company grossly negligent?

YES__X NO _____

b.         Did the Defendant Lorillard Tobacco Company act in a manner that was malicious, willful, wanton or reckless?

YES__X NO _____

(If your answer to either subpart of Question 8 is “Yes,” proceed to Question 9. If your answer to both subparts of Question 8 is “No,” proceed to Question 10 and follow the directions.)

Question 9: CAUSATION AS TO GROSS NEGLIGENCE OR MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT

Was any gross negligence, or malicious, willful, wanton or reckless conduct, of Defendant Lorillard Tobacco Company substantial factor in causing Marie Evans’s lung cancer?

YES__X NO _____

(Proceed to Question 10.)

SECTION 2  – COMPARATIVE NEGLIGENCE

Question 10: COMPARATIVE NEGLIGENCE AND APPORTIONMENT OF NEGLIGENCE

(Please answer Question 10 only if you answered ”yes” to Question 2 and/or

Question 7.c. If you answered “no” to Question 2 and Question 7.c., please proceed to Section 3 and follow the directions.)

a.         Was any negligence on the part of Marie Evans a substantial factor causing her lung cancer?

YES__X NO _____

(If your answer to subpart 10.a. is ”yes,” then please answer subpart b. If your answer to subpart 10. a. is “no,” then proceed to Question 11.)

b.         What percentage of negligence is attributable to Plaintiff Marie Evans and to Defendant Lorillard Tobacco Company?

(Please note that your answers must add up to 100%.)

Marie Evans                                    30%

Lorillard Tobacco Company    70%
­­­­­­­­­­­­­­­­­­­­­­­­­                                                          ———–
Total                                                   100 %

(Proceed to Question 11 and follow the directions.)

SECTION 3  – DAMAGES

(Please answer Questions 11 and 12 if you answered “Yes” to Questions 2, 4, 6, and/or 7. c. If you did not answer ”yes” to any of Questions 2, 4, 6 or 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict.)

Question 11: DAMAGES TO COMPENSATE WILLIE EVANS FOR HIS LOSS

What amount of money do you find will fairly, fully and adequately compensate Willie Evans for his loss of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of his mother, Marie Evans?

Please write your answer both in numbers and in words.

$21,000,000.00

(Amount in Numbers)

Twenty-one million dollars.

(Amount in Words)

(Please proceed to Question 12)

What amount of money do you find will fairly, fully and adequately compensate for the conscious pain and suffering that Marie Evans suffered from her lung cancer on account of any wrongful conduct of Defendant Lorillard Tobacco Company?

Please write your answer both in numbers and in words.

$50,000,000.00

(Amount in Numbers)

Fifty million dollars.

(Amount in Words)

I HEREBY CERTIFY THAT THE FOREGOING ANSWERS ARE THOSE OF AT LEAST 5/6th OF THE JURORS IN THIS CASE.

DATED: _December 14, 2010 _____________________

Foreperson of the Jury



Lorillard suffers big loss in Massachusetts wrongful death case where free samples of Newport were provided to African-American children in Roxbury housing project

Tuesday, December 14th, 2010

FOR IMMEDIATE RELEASE

Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026

A Suffolk Superior Court jury slammed Lorillard Tobacco Company today in the first tobacco trial in Massachusetts in a generation.  The case, Evans v. Lorillard, involved a wrongful death claim brought by the son of a woman who was repeatedly provided with free samples of Newport cigarettes near the playground of the Orchard Park housing project in the Roxbury neighborhood of Boston in the late 1950s.  The woman, Marie Evans, was addicted by the time she was 13 years old and, despite many quit attempts, was unable to stop smoking.  She died at the age of 54 in 2002 and her videotaped deposition was seen by the jury of 14.

Initial reports are that Lorillard was found liable for $50 million to Ms. Evans’ estate and for $21 million to her only son, Willie, for loss of companionship.

It was also reported that a one-day hearing on possible punitive damages against Lorillard will be held on Thursday, December 16.  The jury will reconvene and deliberate following that hearing.

The trial has taken place while the U.S. Food and Drug Administration is considering whether to extend the ban on flavored cigarettes to include menthol.  Experts testified at the trial and before an FDA panel that menthol anesthetizes the lung and facilitates smoking initiation.

The Evans estate was represented by Michael D. Weisman of the Boston firm of Davis, Malm & D’Agostine, P.C..

Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law noted: “While the practice of providing samples of menthol cigarettes to children in the predominantly African-American portion of a public housing project is particularly egregious, it is not terribly different from what still goes on today. 75% of African-Americans prefer menthol brands and logo and price promotions continue to target that market.  More than 60% of cancer mortality among African-American men is attributable to tobacco use.”

Senior Attorney for the Tobacco Products Liability Project, Edward L. Sweda, Jr., added, “It is gratifying to see that this American jury saw fit to hold a large, corporate wrongdoer accountable, if only financially, for its decades-long reprehensible misconduct.”




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