Justices Let Award to Smoker Stand

The California Supreme Court on Wednesday let stand an unprecedented $2-million award to a smoker who blamed his lung cancer on asbestos in the filter of a popular cigarette brand.

The September 1995 verdict for Milton Horowitz, a Beverly Hills psychologist, was the U.S. tobacco industry’s first defeat in a product liability case. Horowitz died last year at 72 after Lorillard Inc., maker of Kent cigarettes, filed its appeal.

A San Francisco Superior Court jury found that Horowitz’s illness stemmed from asbestos fibers leaking from Kent’s “Micronite” filter, promoted as offering “the greatest health protection in cigarette history” when it was introduced in 1952.

Only one Supreme Court justice, Ming Chin, voted to grant an appeal hearing.

According to evidence in the case, Lorillard was warned in 1954 by two sets of experts that asbestos was being drawn into the smoke of Kents, but the company waited until 1956 to remove it from the filter. By then, about 13 billion Kents containing crocidolite, a highly virulent form of asbestos, had been sold.

“I’m totally delighted,” said Joy Horowitz, Milton Horowitz’s daughter. “I know that if my father and mother were alive, they’d be thrilled.”

Madelyn Chaber, lawyer for the Horowitz family, said that while she expects Lorillard to take its appeal to the U.S. Supreme Court, “hopefully next year the tobacco companies will not be able to say that they have never paid any money in compensation to anyone injured as a result of smoking cigarettes.”

William S. Ohlemeyer, an attorney for Lorillard, called the denial of the appeal “disappointing.” But he characterized it as an isolated result, pointing out that since the Horowitz verdict, Lorillard has been victorious in several Kent “Micronite” trials.

Ohlemeyer said that in cases since Horowitz, the defense has been able to show through examination of lung tissue that “these people who smoked Kent don’t have crocidolite asbestos in their lungs.” Several more of the cases are pending.

Horowitz testified that he switched to Kent when the brand was introduced in 1952 because the ads claimed the cigarettes were safer.

Altogether, 10 cases have been tried throughout the country involving claims of disease or death from asbestos in Kents. Lorillard has won eight. The other victory by a plaintiff, a $75,000 verdict that also came in San Francisco, is on appeal.

Because the cases involve exposure to asbestos, not unadulterated cigarette smoke, the mini-wave of litigation has hardly caused a blip on Wall Street. In fact, a $750,000 verdict in a lung cancer case in Florida in August 1996 is usually described as the industry’s first loss in a smoking and health case.

Apart from the effect on Kent smokers, whole families were devastated by asbestos disease in two small towns in Massachusetts where a paper company made Micronite filter material for Lorillard during the 1950s. At least a dozen lawsuits against the filter maker, Hollingsworth & Vose, ended in settlements totaling millions of dollars.