Special report

Legal battles blaze six decades after 'the greatest health protection in cigarette history'

Updated: 2013-10-24T19:14:53Z

By MYRON LEVIN

FairWarning

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, face 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. These days, 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 that have gone to trial.

“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.

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.

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.”

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.

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.

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

is still alive nearly four years after being diagnosed (Many mesothelioma victims die within a

year).

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 ordered them to pay 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.”

FairWarning (www.fairwarning.org) is a Los Angeles-based nonprofit

investigative news organization focused on public health and safety

issues.

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