Suit Against Kent May Test Tobacco Industry’s Mettle : Courts: Victim blamed cancer on asbestos in the cigarette filter. Its maker contends the illness could not have been from smoking that brand.
Scanning his newspaper one day in 1991, Norman Braun was amazed to read that Kent cigarettes--once touted as offering “the greatest health protection in cigarette history"--had contained a particularly virulent form of asbestos. He clipped and mailed the article to his sons, along with a note: “I smoked these damn cigarettes.”
Still, Braun felt more indignant than fearful. The executive with Encyclopaedia Britannica in Chicago had quit smoking in the 1960s and was exceptionally fit for a man of 60--a dedicated cyclist who trained with riders half his age.
But then Braun got a death sentence. In 1993, he was found to have mesothelioma--a rare and uniformly fatal cancer whose only significant known cause is asbestos exposure. Before dying last winter, he filed a lawsuit claiming that asbestos he inhaled from smoking Kents became a time bomb ticking in his chest.
Scheduled for trial this week in U.S. District Court in Chicago, the Braun case is one of about 15 lawsuits filed by mesothelioma victims against Lorillard Inc., maker of Kents, and Hollingsworth & Vose Co., the Massachusetts firm that made the asbestos material used in Kent filters from 1952 to 1956. Besides these suits by smokers, damage claims have also been filed by employees of Lorillard and Hollingsworth & Vose who handled the filter material and later contracted asbestos illness.
Braun “thought that they were to blame for his disease, and he wanted there to be justice, whether he was alive for the trial or not,” said Rick Schoenfield, a Chicago lawyer representing the Braun family.
Lorillard, the fourth-largest U.S. cigarette maker, contends that Braun’s illness could not have come from smoking Kents. According to company lawyers, lung tissue samples analyzed by a defense expert revealed asbestos fibers--but not from the distinct variety of asbestos used in making Kents.
The trial, expected to last three to four weeks, follows close on the heels of a dramatic victory for another plaintiff in a similar case in California.
On Sept. 1, a San Francisco Superior Court jury ordered Lorillard and Hollingsworth & Vose to pay $2 million in compensatory and punitive damages to Milton Horowitz, a 72-year-old clinical psychologist from Beverly Hills who has mesothelioma. The companies had won the four previous Kent trials--including one in the same San Francisco courthouse two weeks before the Horowitz verdict.
Lorillard may be on the hook for all of the damages because the cigarette maker, in a 1952 agreement, promised to indemnify Hollingsworth & Vose for claims arising from any “harmful effects” of the cigarette filter. Lawyers for the companies declined comment on the indemnity agreement.
If it survives an appeal, the Horowitz verdict will spell the first product-liability defeat for the tobacco industry--which has turned back more than 300 liability suits and boasts of never having paid a nickel in settlements or damages to those claiming harm from its products.
To some analysts, however, the Kent cases are an oddball distraction from the broader tobacco litigation, which involves claims of disease and death from unadulterated cigarette smoke.
These are really “asbestos cases that just happen to involve . . . tobacco,” said William S. Ohlemeyer, an attorney for Shook, Hardy & Bacon, Lorillard’s Kansas City counsel.
Narrowing the scope further, the suits aren’t directed at tobacco firms generally but a single manufacturer. Only Lorillard was “brilliant enough to put asbestos in cigarettes,” said Madelyn Chaber, Horowitz’s lawyer.
Still, tobacco foes have hailed the Horowitz verdict as a psychological turning point. “It means jurors can get past blaming the victims and [get] angry at tobacco companies,” said Richard Daynard, a law professor at Northeastern University in Boston who heads the Tobacco Products Liability Project, which supports lawsuits against the industry.
Moreover, the Kent cases, along with recent research on cigarette filters, may point the way to a new line of attack in the more conventional smoking cases.
In a study published earlier this year in the journal Cancer Research, investigators at the Roswell Park Cancer Institute in Buffalo, N.Y., reported finding fibers from cigarette filters in the lungs of lung cancer patients.
According to the researchers, such fibers usually retain their coating of cancer-causing tobacco tar, raising the possibility that cigarette filters--designed to reduce the risk of lung cancer--may also promote the disease when their fibers get stuck in the lungs.
Lorillard, whose brands include Newport and True in addition to Kent, is the most profitable unit of Loews Corp., which also owns hotels, the Bulova watch company and is in the process of selling its controlling stake in CBS Inc. to Westinghouse Electric Corp.
The Brauns and other plaintiffs say there is no question Kent smokers in the early 1950s were inhaling asbestos--and that Lorillard knew it.
Drawing on 40-year-old correspondence, the suits feature the explosive allegation that Lorillard was warned by two sets of experts in 1954 that asbestos was leaking into the smoke of Kents and that the company waited two years and sold billions more Kents before removing asbestos from the filter.
For their part, Lorillard and Hollingsworth & Vose contend that the old test results were ambiguous and that there is no proof Kents were shedding asbestos fibers of a size and shape that could be drawn into the lungs.
Defense lawyers also have challenged the lawsuits’ basic premise: that the plaintiffs smoked Kents during the asbestos years. Indeed, smokers in the 1950s did not bother documenting their brand of choice, and lack of proof of smoking Kents has figured in the defense victories.
Named for its former president, Herbert A. Kent, Kent was Lorillard’s answer to the country’s first lung cancer scare.
In the early 1950s, the link between smoking and cancer first began getting wide public attention. Fearing people might quit smoking in droves, cigarette makers rushed to market with new filter-tip brands in order to convince worried smokers that their habit could be safe.
Lorillard launched Kent in 1952 at a press conference at New York’s Waldorf-Astoria Hotel, boasting that its exclusive “Micronite” filter offered “the greatest health protection in cigarette history.”
In Kent ads, Lorillard came closer than any company before or since to admitting the risks of smoking--saying Kent was designed for the “one out of three smokers” who is “unusually sensitive to nicotine and tars.”
Kent was promoted not only in popular magazines but in the Journal of the American Medical Assn., the New England Journal of Medicine and other medical publications. The idea, said an ad executive in a deposition, was to have physicians “prescribe” Kent for patients who were unable or unwilling to quit.
Playing on Americans’ gee-whiz faith in science and technology, Lorillard also said its 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.”
Among those impressed by these claims was Braun, then a 21-year-old student at Duquesne University in Pittsburgh, Pa., according to testimony in the Braun case.
In a deposition before he died, Braun said he was drawn to the idea “that the Micronite filter was a be-all and save-all.”
No other brand “held out the health benefits that Kent cigarettes promised with its Micronite filter,” Braun said. “It appealed to your sense of self-preservation and well-being.”
What the ads didn’t say is that Micronite was a blend of cotton, cellulose acetate and crocidolite, or “African blue” asbestos--considered the most hazardous form of the lung-scarring mineral.
Crocidolite was considered an effective filter material, dense enough to stop minute particles and gases. Lorillard got the idea from declassified reports on the development of crocidolite gas masks to protect U.S. and Allied troops during World War II. A Navy researcher who had worked on the gas mask project went to work for Hollingsworth & Vose--leading Lorillard to the Massachusetts firm.
Although not known to the general public, the hazards of asbestos by then had been documented in medical and scientific literature. Within the tobacco industry, they were sufficiently understood that rival Liggett & Myers took an oblique shot at Lorillard by touting the “strictly non-mineral” filter of its L&M; brand. Firing back over the heads of smokers, Lorillard ads described Micronite as a “pure, dust-free, completely harmless material.”
By 1954, however, Lorillard was having second thoughts about the asbestos, according to letters filed as exhibits in the lawsuits.
According to this correspondence, two different electron microscopists hired by Lorillard detected asbestos fibers in smoke from Kents. Other letters discussed unsuccessful efforts to anchor the asbestos in the filters.
“We are very anxious to have the smoke from our cigarettes as free of mineral fiber as possible,” wrote Harris B. Parmele, Lorillard’s director of research, on July 20, 1954. In a Dec. 1, 1954, letter to Hollingsworth & Vose’s technical director, Parmele noted Lorillard’s “intention to eliminate the use of asbestos in the very near future.”
Lorillard did not take that step until 1956. But defense lawyers say this delay is not damning--contending that marketing, not safety, concerns dictated the move.
According to Lorillard, the asbestos filter proved unsuitable because it was dense and made for a difficult draw. Smokers had to strain so hard for the smoke that Lorillard executives joked about giving away an athletic supporter with each carton sold.
The asbestos filter was also expensive, and Kent’s premium price held down sales. Accordingly, the company says, the asbestos was removed simply to boost Kent sales--which did rise after the filter’s redesign.
If the filter meant extra risks for Kent smokers, the danger hardly ended there. Whole families were devastated by asbestos disease in the small communities of West Groton and Rochdale, Mass.--where Hollingsworth & Vose, a major employer, made the filter material under primitive conditions, according to court papers and state inspection reports.
Elizabeth Jacobs buried her husband and brother, both Hollingsworth & Vose workers who died of asbestos disease. Then, in 1985, Jacobs herself died of mesothelioma at the age of 54. Her only known asbestos exposure came from washing the dust from her husband’s clothes.
The operation was a “dust-creating monster,” said Dr. James Talcott, an oncologist at Dana-Farber Cancer Institute in Boston and co-author of an epidemiological study of the Hollingsworth & Vose workers.
Published in 1989 in the New England Journal of Medicine, the study tracked 33 of the cigarette-filter workers. Twenty-eight had died, compared to 8.3 deaths expected. Of the five survivors, four were suffering from asbestos disease.
At least a dozen lawsuits were filed against Hollingsworth & Vose by workers and their families, resulting in settlements totaling millions of dollars. At least a handful of other claims were settled with former Lorillard employees who suffered asbestos disease after working with the filter material at cigarette plants in Kentucky and New Jersey.
In the Braun case, however, defense lawyers say they will be able to prove the Micronite filter was not the cause of death. According to Ohlemeyer, the Lorillard attorney, the defense will show at trial that an analysis of autopsied lung tissue revealed asbestos fibers, but not from crocidolite asbestos.
But Braun’s widow and four children contend that the companies are liable for Braun’s shortened life and painful death.
They described Braun as a man with an insatiable thirst for knowledge--a World War II and Civil War buff who started piano lessons in his 50s. But cycling was Braun’s special passion. That he slid so rapidly from robust health to having to rest while crossing a room was particularly hard for the family to bear, said Bruce Braun, his 32-year-old son.
“My father . . . was quite healthy and in very good shape,” said Perry Braun, another son. “We had every expectation that he would live to a ripe old age and enjoy all of his grandchildren.”