Author: Thomas B. Scheffey

Kelly June Hill, Executrix, et al. v. U.S. Smokeless Tobacco: The Altria Group, successor to tobacco marketer United States Smokeless Tobacco of Greenwich, has settled for $5 million a lawsuit filed by the estate of a North Carolina man who died of tongue cancer.

The worker, Bobby Hill, initially went to an Ashville, N.C., lawyer, who referred his case to Bridgeport’s Koskoff, Koskoff & Bieder. Partners Antonio Ponvert III and Christopher Bernard launched a state court wrongful death action in Connecticut.

From the beginning, Ponvert said, Hill and his family wanted to draw attention to the danger of “dipping snuff” and to discourage youngsters from starting its addictive use.

“It’s the first time a plaintiff has won a wrongful death chewing tobacco verdict or settlement in the history of the industry,” said Ponvert. Altria, based in Richmond, Va., also owns Philip Morris, and has a corporate policy of not settling any individual consumer cases, he added.

Altria Group spokesman Steve Callahan said, “U.S. Smokeless Tobacco is honoring an agreement it made in this case prior to its acquisition by Altria….We have no current intention to settle cases like this in the future.”

Historically, the tobacco industry has fiercely defended itself in the courts. And for decades, it denied that tobacco is addictive or a health risk. More recently, it has maintained that people know the risks of tobacco and they should take personal responsibility if they use it.

In the industry, a no-settlement rule is standard.

But Bobby Hill, said Ponvert, “was an almost ideal client. Bobby Hill was 13 years old when he started using. He became addicted to this product when he was a child, long before warning labels were put on [packages] in 1987.” That fact, Ponvert said, “destroyed any personal responsibility-type defense that the industry likes to use.”

The defendant retained five defense firms, including New York-based Skadden, Arps, Slate, Meagher & Flohm, and Winston & Strawn, with local counsel duties handled by Wiggin and Dana, in New Haven.

Attorney David S. Golub, of Stamford’s Silver, Golub & Teitel, has handled other lawsuits against the tobacco industry, and was clearly impressed by the Altria settlement.

“This is unprecedented and amazing. There has never been, to my knowledge, a time when a tobacco company has settled a case. It’s fabulous lawyering, and a wonderful result,” Golub told the Law Tribune. “Every tobacco company fights tooth and nail, because they’re afraid that if they settle one case, they can never again say they won’t settle. This is groundbreaking.”

Smokeless tobacco, or snuff, comes in small cans and is sold under brand names such as Skoal or Copenhagen. It comes in a variety of “cuts,” which describe the lengths of the tobacco strands. The tobacco sits between the user’s cheek and gum. It’s different from chewing tobacco, which is a much longer cut that is literally chewed.

One previous snuff case has gone to trial. An Oklahoma plaintiff, Sean Marsee, contracted mouth cancer in the late 1980s after five years of chewing tobacco use, and USST medical experts testified that tumors caused by “dipping snuff” took 20 years to develop. The suit seeking $147 million resulted in a defense verdict for USST.

“Bobby Hill used for 20 years, so we would have been able to use their experts in the Marsee case against them here,” said Ponvert.

The attorney said the needs of Hill’s widow and two children, 11 and 14, made a settlement for $5 million seem like a wiser course than holding out for more at trial – or maybe nothing. The process of reaching the settlement stage was long and rocky, requiring extensive discovery work and research.

In a 2002 deposition, USST Chairman and CEO Louis Bantle was questioned in another case, and he explained why some 12 million documents in USST files were stamped confidential. Under oath, he conceded they didn’t contain formulas or other business secrets. “A couple of years ago,” Bantle said, “a whole lot of lawyers came to company headquarters and they stamped ‘confidential’ on every single document we had in our possession, whether they were or not.” Ponvert said discovery was challenging, “for the opposite reason one would think.” The plaintiffs “got half a million pages of documents, which made searching them quite interesting. We found some stuff that was out of this world.”

Letters From Children
Some of the most significant material, said Ponvert, was in a cache of internal correspondence from young customers, aged 9 to 18, written between1978 and 1985.

“We found about 50 letters from children to the company, and children’s letters would say, `I am 9 [or 10, 11, 14 or 15] years old, and have been using your product.” The kids had complaints and suggestions. “One was, ‘Please don’t raise the price on Skoal, because I only get $5 in allowance, and can’t afford the seven cans a week that I need,’” Ponvert recounted. “They’d say, ‘I really like the mint flavor, could you make it in a different cut?’

Those letters would be sent to the United States Smokeless Tobacco headquarters in Greenwich. According to the lawyers, a letter would be back to the child saying: “Thank you for your comments. We’ll consider your suggestions, and here are five free cans of Skoal.”

After it became illegal to send tobacco to children in the late 1980s, the company sent young teens complimentary can openers and lids to keep their snuff moist and fresh.

Company correspondence supported a plan to introduce candy-flavored Skoal “Bandits” to hook young customers. “Bandits” are ground tobacco and flavorings placed in a tea bag-like fabric, with less nicotine so the beginner wouldn’t get too sick, Ponvert said.

“They had this very Machiavellian strategy to entice people into the market and keep them as they became more tolerant to the drug,” he said. “It’s well known that the average age for starting to use smokeless tobacco is between 9 and 11 years old. So it’s a product that’s designed for kids, and is being used by and sold to kids.”

Altria Group obtained USST in 2009. On the Altria web site, the company emphasizes its commitment to prevent underage children from purchasing tobacco products. Its charts show the use of smoking tobacco products is declining. However, smokeless tobacco products remain popular, and may be on the rise, the charts indicate.

In some quarters, smokeless tobacco is touted as a less-lethal way to consume tobacco than smoking. But, Ponvert said, young people need to comprehend fully the potentially gruesome results.

“One of our experts described dying by mouth cancer as `death by autopsy,’” Ponvert said. “Literally, over a 10- or 12-month period, your face just falls away. At first, [Hill] lost part of his tongue. Then they took his whole tongue. Then it takes part of your jaw, and your cheeks and your gums. Then the tumor wound its way around his carotid artery and he died.” •

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