BOSTON, Massachusetts, October 15, 2018—In the first ever lung cancer trial involving claims of tobacco and asbestos exposure, a Boston jury awarded a total of $43.1 million dollars to plaintiffs, Joanna Summerlin (widow) and Chris Summerlin (son), for Louis Summerlin’s lung cancer and wrongful death caused by defectively designed cigarettes and fraudulent misrepresentations regarding the dangers of smoking by the tobacco industry.
The Summerlins are represented by Levy Konigsberg L.L.P. and Shepard Law, P.C. The tobacco company found by the jury to have breached its implied warranty of merchantability and to have committed fraud is R.J. Reynolds Tobacco Company represented by Jones Day’s Cleveland office along with local counsel who participated in the case, Conn Kavanaugh Rosenthal Peisch & Ford LLP.
Mr. Summerlin passed away in 2015 of lung cancer at the age of 73. He worked as a brake mechanic from 1959 to 1984 where he was exposed to asbestos and smoked menthol cigarettes for more than 50 years. The case proceeded to trial against R.J. Reynolds for manufacturing the Salem and Kools cigarettes Mr. Summerlin smoked from about 1957 through 1984, Philip Morris USA for manufacturing the Marlboro Menthol cigarettes Mr. Summerlin smoked from about 1984 through 2009, and Hampden Automotive Sales Corporation (“Hampden”), a manufacturer of asbestos-containing brakes that Mr. Summerlin used at his employment in the late 1950s through the early 1960s. At trial medical doctors testified that both cigarette smoking and exposure to asbestos could independently cause lung cancer but when both are present there is a synergistic effect that is more than additive.
Over the course of this five week trial, the evidence established that the menthol cigarettes smoked by Mr. Summerlin from about 1957 through 2009 were defectively designed because they contained high levels of nicotine (above the threshold for establishing and maintaining addiction), excessive amounts of tar and carcinogens, and menthol. Experts in health behavior, psychology and neuroscience explained to the jury that menthol is not just a flavor—it is an anesthetic that numbs the throat, provides smokers with greater exposure to nicotine, and when added to cigarettes, activates more nicotine receptors in the brain. Studies have also shown that it is more difficult for smokers of menthol cigarettes to quit smoking than smokers of non-menthol cigarettes. Even though internal documents revealed that the tobacco companies knew that most menthol smokers start as teenagers they targeted their advertising and marketing of menthol brands towards the youth to initiate new generations of customers. While the jury found that all of the cigarettes Mr. Summerlin smoked were unreasonably dangerous and defectively designed, it concluded that only the Salem and Kool cigarettes manufactured by R.J. Reynolds and smoked by Mr. Summerlin up until 1984 were a substantial factor in causing his lung cancer.
The jury also found that up until 1969, the Salem and Kool cigarettes Mr. Summerlin smoked failed to adequately warn customers about the dangers of smoking. Despite R.J. Reynold’s knowledge that smoking was addictive and could cause cancer dating back to at least the 1940s, there were no warning labels on cigarettes when Mr. Summerlin started smoking in the late 1950s up until the Surgeon General’s warning first appeared on cigarettes in 1966. Then from 1966 to 1969, the warning on R.J. Reynold’s cigarettes stated “CAUTION: Smoking May Be Hazardous To Your Health.” The jury rejected R.J. Reynold’s contention that this adequately warned the public about the dangers of smoking. The jury also determined that R.J. Reynolds committed fraud by failing to inform the public what it knew about the dangers of smoking and misrepresenting its own scientific research and studies while publicly maintaining that cigarettes were not harmful.
The jury found that the brakes Mr. Summerlin used from Hampden were defectively designed because they failed to adequately warn about the dangers of asbestos. However, the jury did not find that Hampden’s failure to warn was a substantial factor in causing Mr. Summerlin’s lung cancer and wrongful death.
The jury awarded a total of $13.1 million against R.J. Reynolds to compensate Mr. Summerlin’s estate and family: $5.3 million for Mr. Summerlin’s pain and suffering, $3.5 million for Mrs. Summerlin’s “loss of consortium”, and $4.3 million in wrongful death damages.
The jury then awarded an additional $30 million against R.J. Reynolds in punitive damages to deter future behavior after it made further findings that R.J. Reynold’s conduct was grossly negligent and it acted maliciously, willfully, wantonly and recklessly.
The case was tried in Suffolk County Superior Court in Boston, Massachusetts, in front of Judge Heidi Breiger. Jury selection began on September 5, 2018 and the jury delivered its verdict on October 12, 2018.
The team of trial lawyers in the Summerlin case are Jerome “Jerry” Block, Robert Ellis and Amber Long from the New York-based Levy Konigsberg LLP and Michael Shepard, Michael McCann and Erika O’Donnell from Massachusetts-based Shepard Law, P.C.