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Viewpoints: Tobacco company plays hardball in new suits in mesothelioma cases pointing toward cigarette filters

It’s hard to think of anything more reckless than adding a deadly carcinogen to a product that already causes cancer – 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, have faced 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 come 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. Nowadays, a mesothelioma patient is almost certain to be asked by his doctor or lawyer: Did you happen to smoke Kents in the 1950s?

Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker, with 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 United States. 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 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.”

Today, Lorillard defends itself with hardball legal tactics – and has won most of the cases brought to trial. The case brought by Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, serves as an example.

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 visits to 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.”