Legal Battles Smolder Six Decades After ‘the Greatest Health Protection in Cigarette History’

An ad from 1955. (From the collection of Stanford University, tobacco.stanford.edu)

Click to enlarge ad.

It’s hard to think of anything more reckless  than adding a deadly carcinogen to a product that already causes cancer—and then bragging about the health benefits.

That’s what Lorillard Tobacco did 60 years ago when it introduced Kent cigarettes, whose patented “Micronite” filter contained a particularly virulent form of asbestos. Smokers puffed their way through 13 billion Kents from March, 1952 until May, 1956, when Lorillard changed the filter design.  Six decades later, the legal fallout continues—including last month when a Florida jury awarded record damages of more than $3.5 million.

Lorillard and Hollingsworth & Vose, the company that supplied the asbestos filter material, have faced numerous lawsuits by victims of mesothelioma, an extremely rare and deadly asbestos-related cancer that typically shows up decades after initial exposure. Plaintiffs have included factory workers who produced the cigarettes or filter material, and former smokers who say they inhaled microscopic asbestos fibers through the filters (Lorillard says hardly any fibers escaped.).

While there is no official count, records and interviews suggest that the number of mesothelioma claims filed against the companies since the 1980s is at least in the low hundreds. Lorillard filings with the Securities and Exchange Commission show the company settled 90 cases in a recent period of just over two years, and that 60 more cases are pending.

Time is on the companies’ side. Since factory workers and smokers with potential claims all are at least in their 70s and 80s, the strange saga of the asbestos filter should soon be coming to an end.

Surprisingly, however, there has been a burst of new cases in the last few years, according to filings with the SEC. Growing awareness of the asbestos episode is probably the cause.  Nowadays, a mesothelioma patient is almost certain to be asked by his doctor or lawyer: Did you happen to smoke Kents in the 1950s?

Lorillard officials did not reply to emails and calls seeking comment. H&V also declined interview requests, though company lawyer Andrew McElaney noted that the companies have won most cases tried to verdicts.

“Greatest health protection in cigarette history”

Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker with a nearly 15 percent market share, and net sales in 2012 of more than $6.6 billion. Established  in 1760 as the P. Lorillard Co., it is one of the oldest continuously operated companies in the U.S.  Lorillard also owns electronic cigarette-maker blu eCigs, which recently created a buzz with commercials by TV personality Jenny McCarthy and actor Stephen Dorff.

Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker. (Rob Brown/News & Record)

Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker. (Rob Brown/News & Record)

Kent was Lorillard’s response to the health scare of the early 1950s, when the link between smoking and lung cancer began drawing wide attention. Tobacco companies scurried to  roll out filters to calm jittery smokers and keep them from quitting in droves. The health benefits would prove illusory, but the switch to filters averted the potential loss of millions of customers.

Lorillard named its first filter for Herbert A. Kent, briefly its president, and aggressively touted the superiority of the Kent Micronite filter. It was a blend of  cotton, acetate, crepe paper and crocidolite asbestos—sometimes called “African” or “Bolivian blue” asbestos because of its bluish tint.

At the time, the risk of deadly lung disease to heavily exposed asbestos miners and plant workers was already well-documented. But asbestos also was known to be an effective filter material, dense enough to stop minute particles and gases, as long as it stayed put. Lorillard had learned of the use of crocidolite in gas masks made for the Army Chemical Corps. In contracting with H&V to supply the  material, Lorillard agreed to be held solely responsible for any “harmful effects’’ of the cigarette filters.

The smokers’ exposures were “very, very low. I don’t believe it increased the risk.”

– Kevin H Reinert, Lorillard’s director of regulatory science policy, testifying in a deposition in April.

Lorillard launched Kent at a press conference at New York’s Waldorf-Astoria, touting the Micronite filter as offering “the greatest health protection in cigarette history.” Playing on the public’s gee-whiz faith in science and technology, Kent ads told a glamorous, though vague, back story of how the quest for the new filter “ended in an atomic energy plant, where the makers of KENT found a material being used to filter air of microscopic impurities.”  

“What is ‘Micronite’?” another ad asked. “It’s a pure, dust-free, completely harmless material that is so safe, so effective, it actually is used to help filter the air in operating rooms of leading hospitals.”

The marketing blitz included advertising in medical journals and mailing gift boxes of Kent to physicians, along with “Dear Doctor” letters talking up the advantages for “patients whom you have felt obliged to advise to cut down or cut out smoking.”

The filter material was produced at H&V plants in West Groton and Rochdale, Mass., and shipped to Lorillard cigarette plants in Louisville, Ky., and Jersey City, N.J. For H&V workers,  the results were catastrophic, with whole families destroyed by asbestos disease. A woman named Elizabeth Jacobs buried her husband and brother, both H&V workers, who died of mesothelioma and asbestosis, respectively. Then Jacobs also died of mesothelioma in 1985 at the age of 54. Her only known exposure to asbestos came from laundering her husband’s dusty work clothes.

“Dust-creating monster”

The plant was a “dust-creating monster,” said Dr. James A. Talcott, an oncologist who co-authored a study of H&V filter workers. Published in the New England Journal of Medicine in 1989, it tracked the health status of 33 former employees of the West Groton plant. By then, 28 had died—more than three times the expected number, based on average life spans–including 18 from asbestos-related illnesses. Of the five surviving workers, four were suffering from asbestos diseases.

Dozens of Lorillard plant workers also contracted mesothelioma. An exhibit in a court case in Louisville listed 34 victims by initials only, under the heading:  “Lorillard Workers With Mesothelioma At Louisville And Jersey City Plants.” 

An ad from 1954. (From the collection of Stanford University, tobacco.stanford.edu)

Click to enlarge ad.

How much asbestos Kent smokers inhaled has been a more contentious and ambiguous subject. Internal documents produced in lawsuits highlight Lorillard’s deep anxieties that Kent smokers were breathing asbestos.For example, an April, 1954 letter from Lorillard research director Harris B. Parmele to company president W.J. Halley stated that researchers had found “traces of mineral fiber” in the smoke. “We are embarked upon a program of attempting to work out a method for the elimination of the presence of such fibers in the smoke,” the letter said.

In a memo in September, 1954, H&V official Peter Breymeier discussed the need “to find a way of anchoring asbestos…All efforts are to be exerted to solve the asbestos-dust-in-Kent smoke problem.”

And H&V president A.K. Nicholson stated in a memo two months later: “It is Lorillard’s belief that asbestos must be eliminated from the Kent cigarette as soon as possible because of a whispering campaign started by their competitors of the harmful effects of asbestos.”  

As a result, the memo said, H&V would “discontinue that part of our research program devoted to the fixing of asbestos fibres and direct the entire attention of the program toward the complete elimination of asbestos.”

Even so, Lorillard continued using asbestos in the filters for the next 16 months, and continued to sell existing stocks of Kents for several more months.

Litigating Hard

The filter litigation is hardly Lorillard’s biggest challenge.

The company depends for nearly 90 percent of sales on its popular Newport menthol brand. The Food and Drug Administration is considering whether to restrict the use of menthol in cigarettes—which would be a bigger blow to Lorillard than to its rivals.

They litigate hard. It’s no small undertaking to be in a trial with them. They had, like, 13 lawyers” working on the case.

–Timothy F. Pearce, a lawyer with the Levin Simes firm in San Francisco who successfully tried a filter case in 2011.

The company also faces some 4,500 lawsuits by individual smokers in Florida, thanks to a Florida Supreme Court ruling that made it easier to sue tobacco companies for smoking-related harms.

Though the filter lawsuits are a fraction of that number, Lorillard fiercely defends the ones that go to trial.

“They litigate hard,” said Timothy F. Pearce, a lawyer with the Levin Simes firm in San Francisco who successfully tried a filter case in 2011. “It’s no small undertaking to be in a trial with them,” he said. “They had, like, 13 lawyers” working on the case.

Lorillard and H&V have won 17 of 23 trials of filter cases. One of their six losses came last month in Broward County, Fla., when jurors ordered them to pay more than $3.5 million in damages to former Kent smoker and mesothelioma victim Richard Delisle.

A key contention of the companies is that little or no asbestos leaked from Kent filters, so plaintiffs contracted mesothelioma in some other way. Despite the nervous tone of internal letters and memos, they say that tests of Kent smoke in the early ‘50s never found more than three fibers per cigarette. The smokers’ exposures were “very, very low,” Kevin H Reinert, Lorillard’s director of regulatory science policy, testified in a deposition in April “I don’t believe it increased the risk.” Plaintiffs have found this hard to challenge, since Lorillard failed to preserve most of the original test reports.

Plaintiff experts testing cigarettes from old packs of Kents have found abundant asbestos fibers in the smoke. Lorillard and H&V contend the tests were unreliable because the cigarettes had deteriorated with age.

However, the companies’ first line of defense has been to convince juries that plaintiffs didn’t smoke Kents in the first place, and only say they did because they have a bad memory or are shading the truth. To undermine their credibility, defense lawyers and investigators fan out around the country to track down and interview family members, school chums, Army buddies–anyone who might have known the plaintiff in the 1950s.

It’s hard to establish the brand of cigarette a person smoked decades ago, and the strategy has often proved successful. It failed in the case of Don Lenney, who not only won in court, but nearly four years after being diagnosed is still alive (Many mesothelioma victims die within a year.).

An ad from 1953. (From the collection of Stanford University, tobacco.stanford.edu)

Click to enlarge ad.

Lenney, 76, a former insurance agent in Northern California, says he started smoking in high school, and soon switched from unfiltered brands to Kent. “The Kent Micronite filter was supposed to be the healthy alternative,” he told FairWarning, “so I started smoking Kents.”

Diagnosed with mesothelioma in November, 2009, Lenney had his left lung removed and underwent chemotherapy and radiation treatments. He also sued Lorillard and H&V.

“They attacked my credibility as far as whether I had actually smoked Kent cigarettes,” Lenney  recalled. Their investigators “were very pushy,” Lenney said. “They would knock on somebody’s door and just ask to interview them…without even calling first to set up an appointment,” he said. “A number of people were put out with that kind of treatment.”

In March, 2011, Lorillard and H&V were found liable by a state court jury in San Francisco. The judge later awarded Lenney and his wife about $1.1 million in damages and costs. The companies appealed and the case was resolved in a confidential settlement.

Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, did not fare as well.

Lorillard mounted a relentless attack on Couscouris’ credibility, suggesting that during his teenage years in Australia he had evaded the draft, and had once improperly received unemployment benefits.

Defense lawyers also seized on a statement by a plaintiff witness that Couscouris had become too sick to walk. They sent a private investigator to conduct surveillance at Couscouris’ home, and videotaped him and his wife getting into their car and making a few stops, including at a restaurant and a shopping mall.

In October, 2012, a Los Angeles jury found that Couscouris had failed to prove he’d smoked Kents, handing a victory to the defense.

“The trial ended up being more of an attack on my client,” said Couscouris’ lawyer Trey Jones. “Almost like a ‘blame the victim’ type thing.”

Print Print  
Myron Levin - FairWarning

About the author

Myron Levin is editor of FairWarning.

2 comments to “Legal Battles Smolder Six Decades After ‘the Greatest Health Protection in Cigarette History’”

  1. Stan Cowan

    For those interested in more of the story about the tobacco industry’s history of profits at the expense of its consumers’ health, I highly recommend “Golden Holocaust” by science historian Robert Proctor. Dr. Proctor, in fact, was sued by Reynolds American to provide them with a draft of his book before it was even published (they lost their suit).

  2. Daniel

    Fascinating article.

    Useful in the fight against Big Tobacco, their tactics and also to highlight how little they think of their customers.

    Also useful as evidence to show the pro-smokers/libertarians who seem to think tobacco companies and angelic.

    Thank you

Leave a comment