WASHINGTON (Legal Newsline) - According to the 2013 Judicial Hellhole report published by the American Tort Reform Association, more law firms are bringing lung cancer cases to America's courtrooms, "which likely [were] not caused by asbestos exposure."
A possible example would be New York Congresswoman Carolyn McCarthy's asbestos lawsuit, which has been under fire lately due to her pack-a-day smoking habit. However, she claims her cancer can be attributed to the asbestos brought home on her father's work clothes.
In an attempt to find connections between asbestos-related lung cancer and habitual smokers, Lorillard Inc.'s Kent cigarettes from the 1950s have been thrown in the spotlight.
Kent cigarettes were produced from 1952 to 1956 by Lorillard, the third-largest manufacturer of tobacco products in the country with net sales of $6.6 billion in 2012.
The cigarette had a Micronite filter produced by Hollingsworth & Vose, H&V, containing crocidolite asbestos. The filter was made of a blend of cotton, acetate, crepe paper and crocidolite asbestos.
Crocidolite asbestos fibers are long, needle-like fibers with the flexibility to bend 90 degrees before breaking. It was used in about four percent of asbestos-containing products.
Ronald Milstein, Senior Vice President, Legal and External Affairs, General Counsel with Lorillard, did not respond to interview requests but he did tell News & Record that the original Kent cigarettes included asbestos for only four years until the design was changed, and the filter was manufactured without asbestos.
"At the time, asbestos was used in a wide range of consumer products, and it was not until years after Lorillard stopped using asbestos in the Kent filter that asbestos-containing products were linked with disease," Milstein said.
However, that change didn't come until after roughly 13 billion Kent cigarettes were consumed with the filter.
The company boasted great health protection in many of its ads in the 1950s. One ad stated, "Only Kent gives you the scientific Micronite filter that takes out so much of the nicotine and tars."
According to the U.S. Securities and Exchange Commission, about 90 asbestos lawsuits have been settled within the last two years and 60 more cases are pending.
Within the last year, five new cases have opened.
In September, a Broward County jury in Florida awarded long-time smoker and asbestos worker Richard Delisle, who is suffering mesothelioma, an $8 million award, including record damages of more than $3.5 million against Lorillard specifically.
Represented by attorney David A. Jagolinzer, Richard Delisle filed his lawsuit against 16 defendants, including Lorillard and H&V.
In Delisle's case, the jury attributed 22 percent of the fault to Lorillard and 22 percent of the fault to H&V. The rest of the fault was divided among the remaining defendants, including gasket manufacturer Crane Co.
During the case, Jagolinzer said Lorillard earned a reputation for fighting dirty by accusing the plaintiff of being a liar.
"They dig their heels in and get very nasty, and sometimes someone needs to push back," Jagolinzer said.
"The fact of the matter is the style of the company is to attack the individual and not the facts. Now they attack the facts, too. So, it's kind of a kitchen sink defense."
Jagolinzer pointed out that regardless of the individual, Kent cigarettes containing asbestos filters occured more than 50 years ago. He said if plaintiffs can't produce exact addresses, receipts and other small details, then "the guy must be a liar."
Whatever its methods, it seems to be working for the most part. Lorillard has won 17 of the 23 total cases that have gone to trial.
Jagolinzer said the defense knowingly put a carcinogen in the product under the false belief that it was impossible for the fibers to be released.
"They knew about the dangers 100 percent," he said. "They admit that they knew the dangers of the asbestos. They just couldn't believe that the asbestos in their filter could cause cancer."
While it is difficult to prove that a smoker's lung cancer is caused by anything other than cigarettes, Jagolinzer said doctors can determine if there is evidence of asbestos exposure also affecting the lungs.
"I don't think you can say it's only the smoking and not the asbestos," he said. "I have cases where I have sued both asbestos and cigarette companies. I sue both and let them fight it out."
Ultimately, he said the two just increase the risk of developing lung cancer.
"You multiply the greater risk of getting lung cancer of those who smoke and have asbestos exposure," he said. "The individual has a greater risk of getting that disease."
Tobacco company facing asbestos suits; plaintiff's attorney says it's fighting dirty
