Group’s lawsuits aim to boost public health
The stories recounted in two recent lawsuits might sound familiar: smokers lured to cigarettes as teens, hooked as adults, stricken with cancer in middle age.
The arguments have been heard before, too: Tobacco companies sold a product they knew was harmful and addictive, and they should be held accountable.
But there’s an intriguing twist to the suits filed in Middlesex Superior Court last month. They are the product of a new Boston group that seeks to promote public health through the courts. And these lawyers are working on several fronts, not just tobacco.
The suits were filed by the Center for Public Health Litigation , a small endeavor started last year by the Public Health Advocacy Institute , a nonprofit research group based at the Northeastern University School of Law.
The center’s purpose, says its founder, law professor Richard A. Daynard, “is to bring litigation that will begin to address public health problems that can’t be effectively addressed other ways.” He is not aware of any other group taking this approach.
In its first suit in early March, the center accused Star Markets and Stop & Shop of allowing children to buy lottery tickets.
The lottery case, Daynard said, is an example of how “litigation can be the best way to tackle a public health issue if regulation has not done its job.”
State law prohibits lottery sales to people younger than 18 because early exposure to lotteries might lead to problem gambling later in life. But neither the grocery stores nor the Lottery Commission took action when shown that a 14-year-old could easily buy tickets from an unattended machine near the front of the store, Daynard said.
Future cases might focus on tanning salons and food marketers.
So far, tobacco-related suits remain the highest-profile example of effective public health litigation.
“There is no question that litigation has been a major strategy that has led to substantial improvements in public health, especially with respect to tobacco,” said Dr. Michael B. Siegel, professor of community health sciences at the Boston University School of Public Health.
Litigation can unearth information that changes public opinion and policy. Lawsuits have revealed that tobacco companies knew nicotine was addictive and manipulated its levels to maximize addiction, all the while publicly denying that tobacco harmed health.
The damage to the industry’s reputation “has led to reduced consumption,” Siegel said. “When a company is viewed negatively, its products are viewed negatively.”
Dr. Michael C. Fiore, director of the University of Wisconsin Center for Tobacco Research & Intervention, said a leading cause of declining tobacco use over the past half-century has been changes in public perceptions and social norms — driven in large part by litigation.
“We have now moved to a recognition that tobacco use is incredibly harmful, it’s highly addictive, and if used as directed kills half the people who use it,” Fiore said.
The $246 billion Master Settlement Agreement in 1998, which required tobacco companies to repay states for the cost of caring for people sickened by tobacco, also had the effect of raising the price of cigarettes, making them less attractive to teenagers.
That agreement prevented any further legal action by states but did not bar individuals from suing tobacco companies.
Still, few such suits have been filed, said Mike Moore, the former Mississippi attorney general who led the litigation that resulted in the Master Settlement Agreement. Lawyers are reluctant to take such cases “because they’re so expensive to try, and the results have been minimal,” said Moore, who serves on the boards of two major antitobacco organizations. Tobacco companies usually win, and when they lose, they appeal, he said.
But Northeastern’s Daynard said prospects for success against tobacco companies are brighter in Massachusetts than anywhere else, and Moore agreed.
Recent Supreme Judicial Court rulings have wiped out two of the most common tobacco industry defenses. In 2006, the high court ruled that manufacturers could not escape responsibility by blaming smokers for taking up the habit. And in 2013, it ruled that cigarettes met the legal definition of a “defective and unreasonably dangerous” product because they could have been made safer.
Moore cites another reason Massachusetts is a hospitable venue for antitobacco suits: The state’s “robust” tobacco prevention and education programs have probably produced a jury pool well-versed in tobacco’s harms.
Even so, the lawsuits last month are the first such cases filed in Massachusetts since the 2013 ruling, Daynard said. He founded the Center for Public Health Litigation out of frustration about the lack of action despite that case’s dramatic success: It resulted in a $35 million award — with interest, $79 million — against Lorillard Tobacco Co. to the family of Marie Evans. A lifelong smoker who died of lung cancer, Evans was introduced to cigarettes as a child when free samples were handed out at her Roxbury housing project.
Daynard was one of the lawyers involved with the Evans case, and he donated part of his earnings to establish the Center for Public Health Litigation last year. The center hired two lawyers to take on cases that other attorneys shunned.
They ran advertisements seeking people injured by tobacco or related to someone who died from tobacco-related illness and received dozens of calls. One of the plaintiffs in last week’s suits, Patricia W. Greene, replied to a newspaper ad.
Greene is a Newton real estate agent diagnosed with lung cancer in 2013. She smoked from age 13, when she was given free Marlboros, until age 30 and became ill 25 years after quitting. Her case seeks damages from Philip Morris USA, maker of Marlboros, and Star Markets Company Inc. of West Bridgewater, a cigarette distributor.
The other suit was filed on behalf of the family of James Flavin Jr., a former executive of Filene’s and Staples. He died in 2012 at age 69 after smoking Newport cigarettes for more than 40 years.
Flavin, who lived in Belmont, started smoking in his teens and consumed two to three packs a day, his brother, Paul K. Flavin, said in an interview.
The Flavin suit seeks damages from Lorillard, maker of Newports, and two local distributors, Garber Bros. Inc. of Stoughton and Albert H. Notini & Sons Inc. of Lowell.
Philip Morris and Star Markets declined to comment; the other defendants did not return phone calls.
Flavin tried everything to quit, his brother recalled — nicotine gum and patches, a Russian hypnotist, even lollipops. Three or four years before he died, he was diagnosed with mouth and throat cancer, which eventually spread to his lungs.
“He was a wonderful guy, a superb family man,” Paul Flavin said. “His entire life revolved around his four daughters and 14 grandchildren.”