Evans v. Lorillard Tobacco Co.

• Decision Date: 06 September 2011
• Docket Number: Civil Action 2004-2840-B.
• Parties: Willie EVANS, as Executor of the Estate of Marie R. Evans, Plaintiff v. LORILLARD TOBACCO COMPANY, Defendant.
• Court: Massachusetts Superior Court

Willie EVANS, as Executor of the Estate of Marie R. Evans, Plaintiff v. LORILLARD TOBACCO COMPANY, Defendant.

Civil Action No. 2004-2840-B.

Superior Court of Massachusetts, Suffolk, County.

September 6, 2011

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT ON PLAINTIFF'S CHAPTER 93A CLAIM

ELIZABETH M. FAHEY, Justice.

INTRODUCTION

This case was tried before a jury for 14 days in November and December, 2010. This Court reserved the Plaintiff's Chapter 93A claim and now states its Findings of Fact and Rulings of Law and Order of Judgment.

The jury found that the defendant Lorillard Tobacco Company (" Lorillard") negligently marketed (Count VII) and negligently failed to warn (Count VII) consumers, including Marie Evans in its marketing efforts, both pre-1979 and post-1979. The jury also found that Lorillard breached the implied warranty of merchantability (Count III) in that the cigarettes it sold after 1979 were unreasonably dangerous as 1) they intentionally and by design contained addictive levels of nicotine; 2) they contained unnecessarily levels of carcinogens in the smoke; and 3) they contained menthol. In so doing, Lorillard violated Chapter 93A. Defendant also violated Chapter 93A by breaching the voluntary duty it undertook (Court II) to accurately report to the public its research and knowledge concerning the health risks of smoking cigarettes.

FINDINGS OF FACT

In making its findings, the court is not constrained by the jury's findings on the common-law claims, as the jury's findings do not have a preclusive effect on the c. 93A claim. Chamberlayne Sch. & Chamberlayne Junior Coll. v. Banker, 30 Mass.App.Ct. 346, 354-55 (1991). This court makes the following findings.

This is an action brought by Plaintiff Willie Evans, the Executor of the Estate of his mother, Marie Evans, against Lorillard, the manufacturer of Newport cigarettes.

Ms. Evans was born on October 23, 1947, and grew up in Orchard Park Housing Project in Roxbury, Massachusetts. Ms. Evans began smoking Newport cigarettes at approximately age 13, became addicted to nicotine shortly thereafter, and remained addicted and continued to smoke Newports throughout her life. Though she genuinely desired to and tried to stop smoking on some 50 occasions, she was unsuccessful except for very short periods, the longest being several months. Ms. Evans was addicted to the nicotine delivered by Newport cigarettes, and this contributed substantially to her continued use of the product. Ms. Evans died on June 20, 2002 from small cell lung cancer caused by smoking Newport cigarettes.

Lorillard is a Delaware corporation with its principal place of business in Greensboro, North Carolina. Lorillard designed, manufactured, and distributed Newport cigarettes since it introduced the Newport brand in 1957. Since it introduced Newport, Lorillard targeted youth, including African-American youth, in an effort to attract and addict young smokers who would become lifelong smokers of Newport cigarettes. I discredit the testimony of Lorillard's corporate representative, Leonard Jones, that the market for Newport was the " adult menthol smoker; " the evidence was overwhelming that Lorillard's target market included children, like Marie Evans. Examples of Lorillard's marketing to children include:

1. I credit the testimony of Marie Evans, Leslie Adamson, Tipp Harris, Rosalyn Harris, and Robert Henry and others that they received free cigarettes in and around Orchard Park on numerous occasions when they were very young. Some witnesses specifically testified that the cigarettes were Newport cigarettes; others (non-smokers) testified that the cigarette packages had colors similar to those of Newport cigarettes. At no time were they denied cigarettes or asked their age. Tipp and Rosalyn Harris's mother called the people giving away Newport cigarettes the " enticers." (Tr.2051.) Sampling of Newport cigarettes, including giving free cigarettes to children like Marie Evans and many others, began approximately at the time of the introduction of the Newport brand in 1957. The evidence of these giveways included the testimony of individuals who recalled the events, as well as Lorillard's annual reports and internal documents.

2. In response to a 1960 written request by a high school freshman for information about its cigarette paper and whether it is perforated, Lorillard responded and sent under separate cover, " our soft package of Spring cigarettes which we hope you will thoroughly enjoy." Ex. 116.

3. An internal Lorillard memorandum dated September 15, 1964 reported that Newport was intended to be a " fun cigarette .... (sic) It was advertised as such and obtained a youthful group as well as an immature group of smokers" and reported that Newport was " marketed successfully according to plan." Ex. 136. ^[1], ^[2] Its original advertising budget when the " Newport brand was born" in 1956 was $900, 000.00.

4. An internal Lorillard memorandum Ex. 164 dated June 5, 1978 identified " sampling" as one of its cigarette marketing stratagies. One " promotion idea" included " How to Reach Younger Smokers." Lorillard knew Newports were smoked by those in high school, college and older. Lorillard's " target group" was age " 16 " . Marketing devices by Lorillard included sponsorship of youth teams or youth sporting events.

5. An internal Lorillard memorandum concerning its best selling brand Newport dated August 30, 1978 touted that " the base of our business is the high school student." Ex. 165.

6. There was no evidence of any investigations or disciplinary actions on the part of Lorillard, even when confronted with complaints or other comments concerning the distribution of their cigarettes to children. See Ex. 126.

7. An aggressive and ubiquitous advertising campaign featuring radio, television, print, and billboard advertisements created an image of smoking described by the Federal Trade Commission in 1967 as " harmless and satisfying." Ex. 50. In the summer of 1964, for example, Lorillard arranged for 65 radio announcements per week, and 252 billboards in the Boston/Worcester region. Ex. 847.

8. Defendant's Corporate Network TV Activity for January, 1968 shows that it tracked its TV advertising exposure by Age Groups including children (ages 2-11) and teens ages 12-17. (Ex. 190).

9. In 1982, Defendant suggested that for " youth appeal" and " lasting appeal, " video game images could appear on cigarette packages. (Ex. 301).

10. Even as late as 1990, this Defendant's Sr. VP-General Counsel wrote to its attorney about obtaining market demographic data, including the " teen study" for those 12-17 years of age.

Though it signed onto a Cigarette Ad Code which precluded distribution/marketing of cigarettes to students, Lorillard never complied with that Code. The evidence convincingly established that over decades Defendant marketed its cigarettes, including Newports, to minors. Ex. 1007, 1008, 1009. Defendant sampled its free cigarettes in boxes of 4 cigarettes to persons, including minors, in Boston at various times from 1957-1983, when street sampling of cigarettes became illegal in Boston. Defendant's free sampling of its cigarettes occurred through either defendant's employees or its authorized agents. (Ex. 364, 359, 370, 124, 125, 127, 129-134) Even Defendant's representative Leonard Jones agreed Defendant never had any written policy to not provide children with free samples of its cigarettes in 1957-1964. There is no question but that this defendant over decades pre and post 1979, targeted youths, children under age 18, as sought-after marketing targets of its cigarettes, including Newports.

By 1939 Defendant had done abstracts of at least 82 articles in the scientific and medical literature concerning laboratory animals that had been painted with tar for research purposes and developed cancer. By 1946, Lorillard's internal documents reveal that it was on notice that " (c) certain scientists and medical authorities have claimed for many years that the use of tobacco contributes to cancer development in susceptible people. Just enough evidence has been presented to justify the possibility of such a presumption." (Ex. 506 letter from Defendant's Chemist to Defendant's Secretary, Committee on Manufacturer dated July 29, 1946). Defendant's author " hope(d) that the chemistry project ... will give us a better insight on subjects, such as throat irritation and even carcinogenesis." Ex. 506

Between 1940-1950 at least four studies had linked smoking cigarettes with lung cancer. By 1950 the defendant was aware of a substantive association between smoking cigarettes and lung cancer. I accept Dr. Cumming's testimony that by 1958, even before Ms. Evans started smoking, it was no longer reasonable for this Defendant to debate that smoking cigarettes caused lung cancer. Ex 73, 19.

During 1950-1964, there was extensive media coverage about the health hazard/risks of smoking, some of which suggested that smoking may cause lung cancer.^[3] To combat this, in 1954 several cigarette manufacturers, including Lorillard, jointly ran an advertisement in newspapers around the country entitled " A Frank Statement to Cigarette Smokers" (" Frank Statement"). ^[4] This 1954 Frank Statement was the response of defendant and other tobacco companies to growing scientific and medical research showing the health risks and hazards of smoking. By this advertisement, defendant pledged to the public its financial aid to establish the Tobacco Industry Research Committee (" TIRC") to research " all phases of tobacco use and health" . (Ex. 21) The " Frank Statement" (Ex. 21) was not made gratuitously. Signed by most major tobacco manufacturers, including Lorillard, the Frank Statement was a full page ad in major...