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Davis Malm Congratulates Michael D. Weisman on Lawyers Weekly "2011 Lawyer of the Year" Honor 

The Boston law firm of Davis, Malm & D'Agostine, P.C. is pleased to announce that Michael D. Weisman has been named a "2011 Lawyer of the Year" by Massachusetts Lawyers Weekly, the leading legal publication in the state. Mr. Weisman was recognized in the January 2 edition for his representation of Marie Evans in the precedent-setting case of Evans v. Lorillard Tobacco Company. Ms. Evans, an African American woman who smoked for 40 years, died of lung cancer in 2002. At the age of nine, she began receiving free cigarettes handed out by Lorillard Tobacco Company at a Roxbury playground. Mr. Weisman and his team at Davis Malm won a landmark victory of $152 million (later reduced to $116 million plus interest) for the estate of Marie Evans and her son, Willie Evans. This was the largest award in Massachusetts and third largest in the country in 2010.

In 2011, the Court also ruled that Lorillard violated the Massachusetts Consumer Protection Act (Chapter 93A) and entered a judgment of attorneys' fees and costs in excess of $2 million. The judgment noted the "exemplary skill, advocacy, and work ethic" of the plaintiff's attorneys.

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$2m in fees awarded in smoking case 

A man was awarded millions of dollars in attorneys' fees and costs pursuant to a verdict in a 2010 case that found the Lorillard Tobacco Co. liable in the smoking-related death of his mother. The order by Superior Court Judge Elizabeth M. Fahey was made public on Thursday. Willie Evans is the son of Marie R. Evans, who died of lung cancer in June 2002

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• Superior Court Awards Plaintiff’s Attorneys’ Fees And Costs Against Cigarette Manufacturer 

The Massachusetts Superior Court awarded attorneys' fees and costs in the watershed tobacco case Evans v. Lorillard, which rendered a judgment in the amount of $116 million plus 90% interest for the estate of Marie Evans, a woman who died of lung cancer in 2002. In this precedent-setting case, the Honorable Elizabeth M. Fahey, Justice of the Superior Court awarded the plaintiff $2,597,377.67 in attorneys' fees and costs pursuant to the Massachusetts Consumer Protection Act. While the court had never awarded more than $400 per hour for attorneys' fees, the judge made an exception in this case "given the skill exhibited by the plaintiff's attorneys - who outmaneuvered Lorillard's attorneys despite being outnumbered - and the remarkable result they achieved." Judge Fahey determined that such an award was reasonable as Davis Malm Attorney Michael Weisman took a risk in taking the case "despite knowing that prior tobacco litigation had been almost completely unsuccessful in garnering actual monetary damages for plaintiffs."

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• Lorillard's CEO Discusses Q3 2011 Results - Earnings Call Transcript 

Now, I'd now like to turn the call over to Murray Kessler.

Murray S. Kessler

Thank you, Bob, and good morning, everyone. Lorillard's third quarter played out just as we expected and just as we said it would during our last conference call. I'm pleased to report that very strong fundamentals continue. We acknowledged that strong fundamentals were masked by a significant comparative reduction in wholesale inventory, adversely affecting our reported volume growth by just over 400 basis points. But we can't emphasize enough that absent the inventory comparison, which was simply a timing issue, our business, as measured by retail shipments, was as strong as we've seen all year. This is especially encouraging as we reduced promotional spending versus year ago on our flagship Newport Menthol brand, and our recent round of price increases are all sticking. We also observed no unusual competitive promotional activity during the quarter. . . .

Andrew Kieley - Deutsche Bank AG, Research Division

Okay. And just finally, Murray, I was wondering on the legal side, if you could just give us an update on where the TPSAC lawsuit stands? And maybe on the Evans case, how you look at the appeal here? And is it -- I've read something that the court was requiring you to hold the full amount of the verdict in cash? Is that the case, or is that not the case?

Murray S. Kessler

Well, no, on the cash they're not requiring them. They had filed that the original judge we went to, we appealed that, and a judge reversed that. And so no, we are not required to hold the cash, so that's incorrect. On the Evans case itself, we believe we have meritorious defenses, and we're appealing that. The judge did reduce the original compensatory damages, not the punitive damages, so the number's a lower number but then you add interest on it. So long and short of it, we think they got it wrong. And we will appeal that case, and hopefully, get ourselves into a more favorable court. On TPSAC, we continue to make those challenges, and we believe that is a case that has been worth doing. The government, as far as I understand, and my lawyers can clarify this and follow-up calls. But as far as I understand, the defense of the government is not one of whether we're right or not, there's this more on standing and whether or not we've been damaged at this point. And in the meantime, there has been progress made in TPSAC and some people have moved off, some others haven't. And even some of the things we're seeing, we think that standing up for ourselves is having an effect on the whole process. And that alone is -- it has been worthwhile to the company and to the industry, and hopefully, we'll win the case as well. . . .

Understood. My other question has to do with the lawsuit around graphic warnings. Can you give us an update on that?

Murray S. Kessler

Well, you'd see the case was argued -- not the case was argued, just the junction. Preliminary injunction was argued. The actual case itself would be probably a few months from now or into the spring. The judge had indicated that he would evaluate the preliminary injunction. We think that our lawyer Floyd Abrams did a great job arguing why we believe this is a violation of both the First Amendment and the Administrative Procedures Act. We believe the government has crossed -- has violated both. And we are optimistic on winning the case itself, and we're hopeful that since we're optimistic on the case itself that we'll be granted an injunction. That he said that he would hopeful to have an opinion on that by the end of October. And I believe there was a commitment for November. So anytime.

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Tobacco company is liable under 93A ($$) 

A Superior Court judge has found that the manufacturer of Newport cigarettes violated Chapter 93A by breaching the implied warranty of merchantability and by breaching the voluntary duty it undertook to accurately report to the public its research and knowledge concerning the health risks of smoking cigarettes. . . .

Based on the enormity of the punitive damages, Michael D. Weisman, the lead attorney for Evans, said Fahey decided there was no need to double or triple the award.

“However, the judge ruled that we are entitled to recover attorneys’ fees and costs,” he said. “We are now in the process of calculating those figures.”

Weisman, who handled the case with his colleague Thomas Frisardi of Boston’s Davis, Malm & D’Agostine, said it was too early to say how sizeable the bill might be.

“We haven’t done the affidavit yet, and I couldn’t even give you a ball park figure at this point,” he said. “I’ve been working on this case for almost 10 years.”

Weisman said the verdict and Fahey’s most recent findings reflect the fact that what the company did to his client was truly reprehensible.

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Consumer protection – Cigarettes – G.L.c. 93A ($$) 

Where a G.L.c. 93A complaint has been filed against a defendant cigarette manufacturer, the facts warrant a ruling against the defendant. 93A liability “The jury found that the defendant Lorillard Tobacco Company 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 ...

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Award swells in tobacco lawsuit 

A Superior Court judge ruled yesterday that the man who won a $152 million lawsuit last year against a tobacco company for causing the death of his mother - by giving her free cigarettes when she was just a child - can collect the money with interest retroactive to 2004, the year the case was filed.

The state allows for interest to be collected at 12 percent a year, meaning the $152 million judgment could essentially double.

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HOPKINS: Big Tobacco--Emperor Has No Clothes in Massachusetts 

To the public at large, the propaganda put forth by Big Tobacco and their lawyers does not sound quite as unreasonable, until the smoke clears and the mirrors are removed.

Big Tobacco argues that warnings against smoking have been around for decades. They say that "everyone" knows smoking might be hazardous to a person's health. They hedge on whether smoking cigarettes is addictive, but maintain that, even if cigarettes are addictive, smokers can quit if they really, really want to quit. Big Tobacco investigates every plaintiff to try and determine other causes for their illness or death. They argue that it must have been something on that ship the plaintiff served on while fighting for their country in World War II. If it was not a ship, it must have been genetics; or it is the food the plaintiff ate; it's a Martian virus; or its just, well, bad luck. When you read the history of the tobacco industry and when you read their own memos, research papers and marketing plans, a much different picture emerges than Big Tobacco wants anyone to fully see.

Yesterday, Massachusetts Justice Elizabeth Fahey issued an order in the case of Marie Evans, deceased v Lorillard Tobacco Company. . . .

* An internal memo from Lorillard, dated June 5, 1978, outlined that one of tobacco's target markets was age 16+ and that Lorillard had worked with a promotion idea titled, "How to Reach Younger Smokers", which set forth that: "the base of our business is the high school student."

* Even as late as 1990, tobacco was obtaining market demographic data, including "teen study" for those 12 to 17 years old.

* At least by 1939, tobacco was in possession of 82 articles in scientific and medical literature relating to the development of cancer in lab animals exposed to ingredients in cigarettes.

* In 1954, Big Tobacco released their "Frank Statement" . . .

Justice Fahey also apparently analyzed the findings of other courts who have heard evidence against the tobacco industry, including findings in the Engle case here in Florida and the US v Philip Morris case. Justice Fahey found she agreed with the following findings of fact by those courts:

a. Smoking cigarettes causes lung cancer.

b. Nicotine in cigarettes is addictive.

c. Big Tobacco placed cigarettes on the market that were defective and unreasonably dangerous. . . .

m. More than forty years after Big Tobacco issued the "Frank Statement" and created TIRC, Big Tobacco's essential position on the relationship of smoking and health remains virtually unchanged. . . .

Nearly every judge that has examined the evidence, heard testimony and considered what Big Tobacco knew and when they knew it has concluded what Justice Fahey did. When an objective eye and ear is given to that evidence, it would seem that the inescapable conclusions are the same as those set forth by the Florida Supreme Court in the "Engle Progeny" cases.

I wonder if Big Tobacco knows how really "hot" it can get down here in Florida for them? Our judges and jurors generally approach their respective duties seriously. That is clearly bad news for Big Tobacco.

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Tobacco company held liable under G.L.c. 93A  

A Superior Court judge has found that the manufacturer of Newport cigarettes violated Chapter 93A by breaching the implied warranty of merchantability and by breaching the voluntary duty it undertook to accurately report to the public its research and knowledge concerning the health risks of smoking cigarettes.

Lorillard Tobacco Co. argued that a breach of the implied warranty of merchantability, absent negligence, does not necessarily result in a violation of 93A.

“However, this argument is inapposite because Lorillard was negligent and grossly negligent in this case,” Judge Elizabeth M. Fahey stated.

“Lorillard’s … decades-long campaign of deceit and deception to the public constitutes a violation of c. 93A,” the judge added.

The ruling comes nine months after the Greensboro, N.C., company was ordered to pay $71 million in compensatory damages to Willie Evans

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• Award swells in tobacco lawsuit 

A Superior Court judge ruled yesterday that the man who won a $152 million lawsuit last year against a tobacco company for causing the death of his mother - by giving her free cigarettes when she was just a child - can collect the money with interest retroactive to 2004, the year the case was filed.

The state allows for interest to be collected at 12 percent a year, meaning the $152 million judgment could essentially double.

Superior Court Judge Elizabeth M. Fahey made the decision on the same day she found that Lorillard Tobacco Co. violated state consumer protection laws by targeting young children in black communities a half century ago with its new Newport brand, which it knew could cause cancer.

"I accept that Lorillard manipulates the levels of tar, nicotine, and menthol in Newport cigarettes, which eases initiation to smoking and often results in lifelong addicts with negative health consequences,'' Fahey said in a 56-page ruling.

She added, "The evidence convincingly established that over decades [Lorillard] marketed its cigarettes, including Newports, to minors.'' . . .

Evans's lawyer, Michael Weisman, of Davis, Malm & D'Agostine of Boston, said yesterday that Fahey's ruling not only supports the jury's verdict but also the original contention that Lorillard wantonly and recklessly targeted children in its marketing campaign. Throughout the trial, Weisman showed that the company also reached out to inner-city neighborhoods with its new Newport brand, a menthol cigarette that has shown to be popular in black communities.

"It is yet another fact finder who has ruled that the evidence is conclusive and proves that Lorillard targeted children, handed out cigarettes to children unlawfully, caused children like Marie Evans to become addicted, at a time when it knew the product it was distributing caused cancer,'' Weisman said.

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• EVANS v. LORILLARD - FINDINGS OF FACT RULINGS OF LAW AND ORDER OF JUDGMENT ON PLAINTIFF'S CHAPTER 93A CLAIM (PDF) 

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. . . .

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. . . .

Lorillard participated in the 1954 issuance of the Frank Statement because it realized that the public was increasingly understanding that smoking cigarettes caused cancer and other health effects. (Ex. 39). The Tobacco Institute, ("TI") (Ex. 69) the public relations entity of this Defendant and other cigarette manufacturers, over decades since 1958' helped orchestrate for this defendant and TI's other members the strategy of "creating doubt about the health issue without actually denying it." (Ex. 67 dated May 1, 1972). Lorillard knowingly and intentionally supported this strategy, -suggesting that "the case is not proved,' (Ex. 67) all the while knowing of and failing to reveal, substantive, credible scientific research to the contrary. . . .

The Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (2006), and the United States Court of Appeals for the D.C. Circuit in United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff'd in part, rev'd in part, 566 F.3d 1095 (D.C. Cir. 2009), cert. denied sub nom., Lorillard Tobacco Company v. United States, 130 S. Ct. 3502 (June 10, 2010), upheld jury findings that misconduct by Lorillard caused harm to the plaintiffs in those lawsuits. Many of the issues resolved by those decisions are the same as those in this case.

As a defendant in Engle and in Philip Morris, Lorillard had an opportunity and incentive to defend allegations that its products are defective and that they harmed consumers like Marie Evans. Lorillard is bound here by the findings in both of the earlier cases.8

I accept the Plaintiffs' argument that the findings in Engle and Philip Morris furnish an independent basis for liability in this case. . . .

Here, the use of the Engle and Philip Morris findings satisfies all of the specific requirements set out above. There was a final judgment against Lorillard in both cases, including opportunity for full appeals. There is every indication that the issues in those cases are identical to those raised in this case and Lorillard had a full and fair opportunity to litigate in both cases. Moreover, the circumstances satisfy fairness concerns. First, Evans obviously had neither a reason nor an opportunity to join the prior proceedings. Second, given the amount of money at stake and the fear of setting unfavorable precedent in tobacco litigation, Lorillard had every incentive to defend vigorously against the prior lawsuits. Third, although Lorillard has argued that prior to Engle and Philip Morris it frequently prevailed on the same issues on which it lost in those cases, it has not cited or provided any examples of such cases where it prevailed. Lastly, it has not been argued, nor does this court have any basis to decide, that a different result would have been forthcoming in this case due to any new procedural opportunities afforded Lorillard.

As such, the application of offensive collateral estoppel is fair, and this court adopts the findings in Engle and Philip Morris as an additional basis in support of its conclusions of law.

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• Big Tobacco case tops year’s largest verdicts ($$) 

Two Boston trial lawyers took on Big Tobacco and won the largest jury verdict in the state last year in a wrongful death suit that exposed a disturbing campaign to distribute menthol cigarettes to inner-city children.

The $152 million award in Evans v. Lorillard is nearly 10 times larger than 2009’s top verdict of $15.7 million in a patent case. The historic win against the third-largest cigarette maker in the nation came after thousands of working hours and late nights at the attorneys’ downtown Boston law firm.

“We ate supper together a lot of nights — lots of Wagamama and B Good Burgers,” said Thomas Frisardi, who tried the case with lead plaintiff’s attorney Michael D. Weisman, both of Davis, Malm & D’Agostine.

Frisardi and Weisman faced off against Lorillard’s stable of attorneys hailing from three firms: Nutter, McClennen & Fish and Prince, Lobel, Glovsky & Tye, both in Boston, and Shook, Hardy, Bacon in Kansas City.

In the courtroom, the disparity in plaintiff’s and defense resources was glaring . . .

The most memorable moment of the trial for Weisman came during the cross of a Lorillard representative who showed jurors a copy of a Newport advertisement from a 1965 edition of Ebony magazine.

In the copy, the pack of cigarettes was blue.

That was a problem for the plaintiff. Many of the witnesses who remembered the giveaways could not recall the brand of cigarettes they were given as children, but they testified that the packs were green.

“If the pack was blue, it couldn’t have been Newport,” Weisman said.

But Weisman and Frisardi had the actual magazine ad. The package was green

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For the record 

Correction: Because of a reporting error, a story in yesterday's Metro section on a lawsuit against the Lorillard Tobacco Co. incorrectly attributed the final quotation in the story. Those were the words of Michael Weisman, an attorney for the plaintiffs in the case.

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LETTER: Children don't deserve blame  

I USUALLY find opinions offered by Jeff Jacoby to be well-reasoned and persuasive. That said, his Dec. 22 op-ed ("Don't fault tobacco firm for death'') displayed logical shortcomings. . . .

Then Jacoby went on to blame Evans for her decision to smoke as a child, noting "if she could resist the lure of tobacco until she was 12, she could have resisted it at 13.'' The entire point is that Lorillard evidently understood that children could not resist the lure of smoking the cigarette handouts forever. . . .

the demonizing of a child lured by a cigarette company into smoking is grossly misplaced.

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LETTER: Teens in the 1950s didn't know risks of smoking  

JEFF JACOBY'S column attacking the jury decision in the case against Lorillard Inc., for marketing tobacco to children, fails on its own terms.

Jacoby neglected to remember that at the time tobacco executives were still claiming that tobacco was a safe product.

Even granting Jacoby's position that 13-year-olds should not be protected from foolish decisions, it would not have been clear to a 13-year-old in the 1950s that choosing to smoke was a foolish decision.

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