Tobacco company challenges $152m award in case of Newport cigarette smoker

By John R. Ellement, Globe Staff

An attorney for Lorillard Tobacco Co.told the state’s highest court today that a landmark $152 million verdict against the company for giving free cigarettes to children in Roxbury in the 1950s was legally flawed and should be overturned.

In his oral argument to the Supreme Judicial Court, attorney Paul F. Ware Jr. said there was no evidence presented at a Suffolk Superior Court civil trial that directly linked the giveway of Newport cigarettes in the Orchard Park neighborhood to the smoking addiction that ultimately killed Marie Evans.

“There was an utter failure of proof of causation in this case,’’ he said. “At some point, we concede, she was addicted … but there is no proof of causation, addiction, at that age.’’

Evans’s son, Willie Evans, sued Lorillard, blaming them for introducing his mother to cigarette smoking by giving her free samples of Newports when she was 9 years old and living in the Orchard Park housing development in the 1950s. By the age of 13, she was addicted, a jury found.

Marie Evans smoked while pregnant with her first and only child, and also after suffering a heart attack when she was 36. She was still smoking when she died in 2002 of small-cell lung cancer at 54.

Under questioning today by Justice Margot Botsford, Ware said the case must also be thrown out because plaintiffs never proved that Newport cigarettes were unique, or different, from any other cigarette sold in the US at the time Marie Evans was purchasing them.

“It remains the plaintiff’s burden to show something distinctive about Newport,’’ he said. “Nothing was proved as unique to Newport.’’

Ware also said that the trial judge, Superior Court Judge Elizabeth M. Fahey, made a fatal legal error when she ruled Evans could collect 12 percent interest on the verdict dating back to 2004, a penalty which by itself has since grown to $100 million.

“It represents the $100 million error in this case,’’ Ware said. “No interest should have been awarded.’’

But Willie Evans’s attorney, Michael D. Weisman, said that the Lorillard attorney had misrepresented the evidence from both plaintiff and defense experts that the jury relied on when reaching their verdict.

He said jurors learned from internal company documents that Newport cigarettes were created in 1957 as menthol cigarettes solely to attract younger smokers.

The jury also heard, Weisman said, that the company boasted in an annual report that the free giveaways had proven an effective marketing tool.

“She had always been addicted,’’ he said. “That’s why Lorillard targeted kids. When you get kids early, you change their brains early and irrevocably. ... She became addicted at 13.’’

Weisman also said that Fahey was correct to draw on a law on the books since 1913 when she ordered the tobacco company to pay the interest.