COLUMN ONE : Smoking’s Asbestos Episode : The carcinogen was used in Kent filters in 1952-56. Now the company faces lawsuits of a sort never seen in the industry.
In the early 1950s, when the link between smoking and lung cancer began receiving wide attention, the Lorillard tobacco company mounted an unusual counterattack.
The cigarette maker held a press conference at New York’s Waldorf-Astoria Hotel to launch Kent, a new brand whose “Micronite” filter, in the company’s words, offered “the greatest health protection in cigarette history.”
Lorillard knew that patients often asked their doctors about the risks of smoking. Accordingly, the firm advertised Kent not only in popular media but in the Journal of the American Medical Assn., the New England Journal of Medicine and other medical publications. The idea, an advertising executive later explained, was to have physicians “prescribe” Kent for patients who were unable or unwilling to quit.
More than 35 years later, Lorillard has been forced to admit that Kent’s Micronite filter--which it had touted as “pure” and “dust-free"--contained, from 1952 to 1956, a particularly virulent form of asbestos.
The admission has surfaced in a series of lawsuits filed by asbestos disease victims, some of whom claim their only contact with asbestos was from smoking Kents. The lawsuits include the explosive allegation that Lorillard was told by consultants in 1954 that Kent smokers were inhaling asbestos, but took two years to remove the deadly fiber from the filter.
Other highly publicized lawsuits against tobacco companies, including Lorillard, have involved claims of death or disease from inhalation of tobacco smoke. Cigarette makers for the most part have flicked away such suits by arguing that smokers were put on notice of the risks of smoking.
But these new cases are about asbestos, not tobacco smoke, and plaintiffs will claim they had no way of knowing there was asbestos in their Kent cigarettes.
The first of the cases, scheduled for trial Oct. 28 in U.S. District Court in Philadelphia, is that of Peter J. Ierardi, a 56-year-old stockbroker who has mesothelioma, a rare and particularly lethal form of cancer whose only significant known cause is asbestos.
Ierardi was 18 when he switched to Kent in 1953, joining legions of other smokers who quickly made it a top-selling brand.
In a deposition last year, he recalled how Kent advertising “more or less reinforced the position I had of smoking Kents . . . that I was on the right track, with the best available filter of that day.”
In 1989, Ierardi learned he had mesothelioma, a virtual death sentence. He wracked his brain to recall where he might have been exposed to asbestos. At various times he had been a caterer, a record producer and a professional clarinet and saxophone player. But as far as he knew, he had not encountered asbestos in any of these jobs.
Then someone told him about the asbestos in Kents.
Ierardi had been a robust man and a two-time champion of his golf club, but his condition had deteriorated by the time his videotaped deposition was taken last fall.
“It is my understanding that I may not be around for the real testimony, so I’m here today,” Ierardi said. “I don’t want to die. I have lived with cancer for a year. I can’t function. I can’t do anything but think of cancer. It is my whole life.”
While declining to discuss most aspects of the case, Lorillard attorney Allen Purvis described mesothelioma as a mysterious disease that has causes other than asbestos. “We’re confident that the jury is going to listen to all the evidence and conclude that Mr. Ierardi did not suffer any injury caused by smoking Kent cigarettes,” Purvis said.
“Foremost in everyone’s mind should be the fact that this is a very brief window in Lorillard’s history that occured 35 years ago,” he added.
Lorillard, the fourth-largest U.S. cigarette maker, is the most profitable unit of Loews Corp., which also owns or controls CBS Inc., CNA Insurance and the Loews hotel and theater chains.
The company named Kent for its former chief executive, Herbert A. Kent. During the first four years, the trademark Micronite filter was a blend of cotton, acetate and crocidolite--or “African blue” asbestos--considered a particularly dangerous form of the lung-scarring substance.
Asbestos was considered an effective filter material, dense enough to stop minute particles and gases. The military used it in protective gas masks, and that’s how Lorillard got the idea.
The use of asbestos in Kent drew wide attention after an article in The Times three years ago that revealed the high rate of asbestos-related deaths among workers at Hollingsworth & Vose Co., a Massachusetts firm that made the filter material for Lorillard. Some of the workers’ families collected large damage settlements from Hollingsworth & Vose.
In one instance, a woman named Elizabeth Jacobs lost her brother, a Hollingsworth & Vose worker, to asbestosis; then she lost her husband, another company worker, to mesothelioma, and died herself of mesothelioma--apparently from washing her husband’s clothes.
Hollingsworth & Vose is Lorillard’s co-defendant in the Ierardi suit and four others filed by the Philadelphia law firm of Johnson & Childs. Dan Childs, a lawyer with the firm, said he expects to file about five more cases soon.
The tobacco industry’s success in defeating damage claims has been blemished only twice--but neither outcome sparked a rush to the courthouse. In 1988, survivors of lung cancer victim Rose Cipollone won a $400,000 judgment in Newark, N.J., against the Liggett Group, but the award was overturned on appeal and a retrial is expected after a review of legal issues by the U.S. Supreme Court.
Last year, a Mississippi jury found American Tobacco Co. liable for the lung cancer death of Nathan H. Horton, but jurors said Horton shared responsibility and awarded no damages to his family.
A victory by Ierardi could trigger more claims against the industry, according to Richard Daynard, a Boston law professor who heads the Tobacco Products Liability Project, a group that promotes lawsuits against tobacco companies.
“Anything that eliminates the historically well-justified myth of invincibility of the tobacco industry . . . will encourage attorneys to consider the full range of exposure of the industry for the death and disease that their products cause,” Daynard said.
Other experts believe the Ierardi case will have little effect on the broader class of smoker-death claims, of which about 50 are pending across the country. Because Ierardi’s is an asbestos case--not a traditional tobacco case--its relevance to other litigation is minor, they say.
At the same time, because the case is not like other smoking cases, Lorillard’s lawyers probably won’t be able to use the defense that has served them well in ordinary tobacco cases: They won’t be able to say that Ierardi was warned about the asbestos in Kent filters and assumed the risk.
The Ierardi case is attracting wide interest in legal circles and growing media attention. A national legal news channel has obtained permission to broadcast the trial. Lorillard has hired John Scanlon, a well-known public relations consultant, to help with damage control.
Lorillard lawyers recently suffered embarrassment when a judge levied sanctions against them for filing a frivolous motion.
Lorillard had moved to have the case dismissed on grounds that there was uncontroverted proof that Ierardi didn’t smoke Kent in the years it contained asbestos.
But the request was denied by U.S. District Judge Clarence C. Newcomer, who said that Lorillard “would have been hard-pressed to devise a more frivolous or patently unmeritorious motion.” In August, he ordered the company to pay Ierardi’s lawyers the $3,892 in fees and costs they spent responding to the motion.
Also, Lorillard attorneys made seemingly contradictory statements on a critical point: whether asbestos was released into the smoke when customers puffed their Kents.
A Lorillard lawyer, quoted in a recent news report, said a company researcher in 1954 had detected “trace amounts” of asbestos in smoke from Kents.
Previously, a different Lorillard attorney had told the Wall Street Journal “that the asbestos didn’t get out of the filter, so there is no basis for claiming that people were exposed to asbestos when they smoked the cigarette.”
One interested reader was Jonathan Revere, a resident of Martha’s Vineyard in Massachusetts. His mother, Althea Revere, was a pioneer electron microscopist and had worked as a consultant to Lorillard in 1954. Althea Revere died several years ago, but her son recalled her voicing alarm about her discovery of asbestos fibers in smoke from Kents.
Angered by the statement of Lorillard’s lawyer, Revere decided to tell Ierardi’s lawyers about his mother’s work. He is expected to be a witness at the trial.
In a deposition last month, Revere said his mother had discussed her attempts “to alert the research department of Lorillard” to “the presence of discernible particles of asbestos” in the smoke of Kents.
“My mother said to me that it was part of her summary report to . . . Lorillard that she felt this posed a severe problem to the continuing use of the original Kent Micronite filter,” Revere testified.
“My mother never said to me whether she recommended that Lorillard immediately cease production and sale of the Kent Micronite filter, but that she did put in language into her report reflecting the seriousness of her findings.”
Ierardi’s lawyers contend that a second Lorillard consultant in 1954 confirmed Revere’s finding that asbestos was coming out in the smoke.
A Lorillard attorney acknowledged that Althea Revere “did do some work for the company,” but otherwise declined comment.
Both Lorillard’s vice president for research and the former research director for Hollingsworth & Vose said in depositions that they still believe the filter anchored the asbestos and did not allow it to get into the smoke.
By the early ‘50s, medical reports had linked asbestos with asbestosis and lung cancer. Lorillard acknowledged in court papers that “it was aware (at the time) of medical literature which associated exposure to mineral fibers, including asbestos fibers, with the development of certain respiratory injuries.”
Elise Comproni, a former industrial hygienist for the state of Massachusetts who inspected the Hollingsworth & Vose plant in the early ‘50s, said in a deposition that he was appalled to learn at the time that the company was making asbestos material for use in a cigarette.
“Asbestos is a known carcinogen . . . and to put it in a product that you are actually breathing air from is not in keeping with the best health practices,” Comproni said.
The trial also will probe the thinking behind Kent’s unusual ads.
While never revealing its asbestos content, Kent ads described the “Micronite” filter as a “pure, dust-free, completely harmless material.”
At question is why Lorillard mentioned dust at all. Dust wasn’t a problem with competing brands. So smokers more likely were perplexed than attracted by the dust-free claim.
What Ierardi’s lawyers will argue is that “dust-free” and “harmless” were veiled references to the danger of asbestos in Kent.
But William Thompson, the former Young & Rubicam executive on the Kent advertising account, had a different version.
Liggett & Myers, a rival tobacco company, had begun touting the “strictly non-mineral” filter of its L&M; brand. The reference was not lost on Lorillard, which saw it as an attack on Kent.
L&M; “was implying there was something harmful about . . . a filter with minerals in it,” Thompson said in a deposition. Lorillard wanted “to counter the L&M; planting of the mineral idea” by stressing that “there is nothing harmful about our product.”