Lorillard and H&V have won 17 of the 23 filter cases that went to trial. They insist in court that little or no asbestos leaked from Kent filters, and so plaintiffs must have gotten mesothelioma in some other way. Despite the nervous tone of the internal letters and memos, they say that tests of Kent smoke in the early '50s never found more than three fibers per cigarette. The smokers' exposures were "very, very low," Kevin H Reinert, Lorillard's director of regulatory science policy, testified in a deposition in April. "I don't believe it increased the risk." Plaintiffs have found this hard to challenge, since Lorillard failed to preserve most of its original test reports.
When tests of old Kents revealed far more asbestos in the smoke than Lorillard claimed, its lawyers countered that the Kents were old, the results unreliable.
Plaintiff experts who tested cigarettes from old packs of Kents have found abundant asbestos fibers in the smoke. Lorillard and H&V claim that the tests were unreliable because the cigarettes have deteriorated with age.
The companies' first line of defense, though, has been to convince juries that plaintiffs didn't smoke Kents in the first place—they just say they did because they have a bad memory, or maybe they are shading the truth. To undermine their credibility, defense lawyers and investigators fan out around the country to track down and interview family members, school chums, Army buddies—anyone who might have known the plaintiff in the 1950s.
Because it can be hard to establish the brand of cigarette a person smoked decades ago, the strategy often succeeds. It failed, however, in the case of 76-year-old Don Lenney, who not only won in court, but is still alive nearly four years after his diagnosis. (Mesothelioma victims often die within a year.)
Lenney, a former insurance agent in Northern California, says he started smoking in high school, and soon switched from unfiltered brands: "The Kent Micronite filter was supposed to be the healthy alternative, so I started smoking Kents."
Diagnosed with mesothelioma in November 2009, Lenney had his left lung removed and underwent chemotherapy and radiation treatments. He also sued Lorillard and H&V. "They attacked my credibility as far as whether I had actually smoked Kent cigarettes," Lenney recalls. Their investigators "were very pushy," he adds. "They would knock on somebody's door and just ask to interview them…without even calling first to set up an appointment."
In March, 2011, a state jury in San Francisco found Lorillard and H&V liable. The judge later ordered them to pay Lenney and his wife about $1.1 million in damages and costs. The companies appealed, and the case was settled out of court.
Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, did not fare as well. Lorillard mounted a relentless attack on his credibility, suggesting that he had evaded the draft during his teenage years in Australia, and had once improperly received unemployment benefits.
"The trial ended up being more of an attack on my client. "Almost like a 'blame the victim' type thing."
Defense lawyers also seized on a statement by a witness who said Couscouris had become too sick to walk. They sent a private investigator to spy on Couscouris at home—the private eye videotaped him and his wife getting into their car and making a few stops, including at a Marie Callendar restaurant and a shopping mall.
In October, 2012, a Los Angeles jury found that Couscouris had failed to prove he'd smoked Kents. "The trial ended up being more of an attack on my client," says Trey Jones, Couscouris' lawyer. "Almost like a 'blame the victim' type thing."
FairWarning.org is a Los Angeles-based nonprofit investigative news organization focused on public health and safety issues.