BOSTON — Willie Evans remembers all the things his mother tried to quit smoking: the patch, the gum and even hypnotism. Her attempts all failed. Marie Evans died of lung cancer in 2002 at the age of 54.
Willie Evans sued Lorillard Tobacco Co., arguing that the company got his mother hooked on smoking by giving away free cigarette samples to children in her Boston housing project in the 1950s and ‘60s. A jury awarded $152 million in damages, an amount later reduced to $116 million.
Lorillard’s appeal is set to go before the highest court in Massachusetts next month. The company argues that the trial judge made a series of rulings that prevented the company from getting a fair trial.
“We think today of what our reaction would be if a tobacco company were to go into a playground and give cigarettes to kids, and we would be outraged. My reaction is one of outrage that they would target kids at such a young age.” Willie Evans said. During the 2010 trial, Evans’ lawyers said Marie Evans first received free samples of Lorillard’s Newport cigarettes when she was 9 or 10 years old. She said she initially gave them to her older sisters or traded them for candy, but then began smoking Newports herself regularly when she was about 13. In a videotaped deposition shown to jurors, Marie Evans said the giveaways had a “large impact” on her. Evans said she made about 50 attempts to quit but always went back to smoking.
“I was addicted. ... I just couldn’t stop,” she said.
Lorillard’s lawyers argued during the trial that Evans made the decision to start smoking and continued to smoke even after she suffered a heart attack in 1985 and her doctors urged her to quit.
The company denied giving away cigarette samples to children. In its appeal, Lorillard said it was denied a fair trial, in part because the judge allowed the jury to hear about Evans’ claim that the company marketed its cigarettes to African-Americans and children.
“This story was obviously racially charged and inflammatory,” the company’s lawyers argued in court documents filed in their appeal.
“The racial aspects of the story were also entirely irrelevant. There was no evidence that Lorillard conceived Newport as an ‘African-American’ brand. The evidence was that Lorillard marketed Newport to all races, using the same advertising campaign in magazines directed to African-Americans as it did in general circulation magazines.”
Evans’ lawyers declined to comment on Lorillard’s appeal. In court documents, they said the trial judge “acted well within her discretion in admitting evidence of Lorillard’s false and misleading marketing to youth and to African-Americans.”
Lorillard believes it has a strong case and is optimistic the Supreme Judicial Court will overturn the verdict “based on errors made at trial,” a spokesman said.
“We believe the plaintiff prevailed at trial due to significant departures from Massachusetts law in several important aspects in a proceeding which violated Lorillard’s fundamental due process rights,” said spokesman Gregg Perry.
Perry said that if the judgment is upheld, “it would have the potential to induce a flood of litigation against manufacturers selling all manner of products in Massachusetts and thereby undermine the state’s business climate.”
Several business groups filed friend-of-the-court briefs supporting Lorillard’s appeal, including the Product Liability Advisory Council Inc. and the U.S. Chamber of Commerce.
The Supreme Judicial Court is scheduled to hear oral arguments Dec. 3.