APPEALS COURT UPHOLDS $2 MILLION VERDICT AND PUNITIVE DAMAGES AWARD AGAINST LORILLARD TOBACCO COMPANY – FIRST SUCH VERDICT TO SURVIVE APPEAL

The Tobacco Products Liability Project releases the following statement:

The California Court of Appeal (First Appellate District) issued a unanimous 27 page opinion late yesterday upholding a September 1995 jury verdict against Lorillard, Inc, manufacturer of Kent cigarettes, and co-defendant Hollingsworth and Vose Co., a supplier of an asbestos-laden cigarette filter. A clinical psychologist, Milton Horowitz, contracted a rare and fatal case of mesothelioma (an asbestos-caused lung cancer) after smoking Kent cigarettes with the "Micronite Filter" containing crocidolite ("blue") asbestos from 1952 until 1956.

The San Francisco jury had awarded Dr. Horowitz, who died in 1996, $350,000 in economic damages, $700,000 for pain & suffering and $250,000 for loss of consortium. The two defendants were held 50% responsible for the award of $1,300,000. Then, the jury awarded Dr. Horowitz $700,000 in punitive damages -- $560,000 from Lorillard and $140,000 from Hollingsworth & Vose - bringing the total award to $2 million. The opinion affirming the verdict represents the first time a jury verdict against a tobacco company has survived appeal.

The Court concluded that "substantial evidence supports the punitive damage award against Lorillard." It said the evidence is, "sufficient to show that in the 1950s P. Lorillard knew or should have known that smoking asbestos-containing filter cigarettes could result in irreversible and fatal asbestos-related illness."

The type of punitive damages awarded to Dr. Horowitz because of Lorillard’s, "oppression, fraud, or malice," would be eliminated by the proposed global "settlement" announced by state attorneys general and the tobacco industry on June 20, 1997. Punitive damages are intended to punish defendants for bad acts – including, as the Court described, "despicable conduct which is carried on . . . with a willful and conscious disregard of the rights or safety of others," -- and to deter future misconduct. In this instance the bad acts included the failure to warn the public about the hazards of the asbestos and to reveal to the public that the Kent Micronite Filter, advertised as safe, contained lethal blue asbestos which was inhaled directly into consumers’ lungs.

Richard A. Daynard notes that "If Congress and the Clinton administration approve the tort reforms to protect the tobacco companies that are part of the proposed deal, juries will be prevented from telling tobacco companies how wrong they were to have concealed their deadly secrets from consumers." "Without the prospect of a punitive damages award," Daynard added, "attorneys like Madelyn J. Chaber (of the San Francisco firm of Wartnick, Chaber, Harowitz, Smith & Tigerman, who presented this case to the jury and handled the appeal) and Philadelphia attorneys Dan Childs and Tom Johnson (who pioneered the Micronite filter litigation) might not have even considered taking on one of the giants of the tobacco industry in expensive and protracted litigation."

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