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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.

November 05, 1995|MYRON LEVIN | TIMES STAFF WRITER

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.

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