by Edmund H. Mahony
December 7, 2010
The manufacturer of Skoal and Copenhagen chewing tobacco has agreed to pay $5 million to the family of a North Carolina man who died of cancer in what is thought to be the first wrongful death settlement in a smokeless tobacco case.
It was unclear because of the way the settlement was reached what effect it might have on potential litigation against chewing tobacco manufacturers, an industry segment that has been the target of far fewer liability claims than cigarette makers.
The U.S. Smokeless Tobacco Co. agreed to pay the family of Bobby Hill, according to family attorney Antonio Ponvert III. Hill began chewing tobacco when he was 13 and died of complications from cancer of his tongue at age 43 in 2003.
U.S. Smokeless Tobacco was based in Greenwich until its acquisition by the Virginia-based Altria Group. The suit was filed at Superior Court in Stamford.
"This is the first time the tobacco industry has ever settled a wrongful death case resulting from the use of chewing tobacco," said Ponvert, of Koskoff, Koskoff and Bieder in Bridgeport. "And it's the first time Altria has settled any consumer tobacco case of any kind."
Altria Group spokesman Steven Callahan said the company has a policy against settling tobacco suits and agreed to the settlement with Hill's family only because U.S. Smokeless Tobacco made the offer prior to its January 2009 acquisition.
"We have no intention of settling cases such as these in the future," Callahan said. "This is really a unique circumstance because the offer was made prior to the acquisition."
Public health advocates said Tuesday that the Hill settlement could increase claims against smokeless tobacco manufacturers, in spite of Altria's resistance to settling and the failure of similar claims in the past.
"You may not see the settlements, but this shows that U.S. Tobacco thought that $5 million was the reasonable settlement cost of this case," said Richard A. Daynard, chairman of the Tobacco Products Liability Project at Northeastern University in Boston. "This certainly says to anyone who looks at it that cases like this are worth $5 million, so go for it."
Ponvert said he was aware of only one smokeless tobacco case going to a verdict. An Oklahoma jury found in favor of U.S. Smokeless Tobacco in that case in 1986, Ponvert said.
"I think they have been flying under the radar," Ponvert said. "Because of how bad cigarettes are, I think fewer people are paying attention to smokeless, maybe until now."
Ponvert said the settlement was reached at a time when the tobacco industry is trying to weaken proposed warning labels on its products, and is marketing chewing tobacco as a less harmful alternative to cigarettes.
"This company manufactures and sells a dangerous and defective product that it knows causes addiction, disease and death in consumers who use it as intended," Ponvert said.
Prior to settling, Ponvert said, he was able to obtain hundreds of internal records from U.S. Smokeless Tobacco that he said showed it had an aggressive marketing program directed at teenagers, such as Hill.
Ponvert said that, among other things, when teenagers wrote with product or pricing suggestions, the company responded by letter and with complimentary cans of chewing tobacco. The effect was to introduce children to candy-flavored tobacco and then "graduate" them to stronger and more expensive products, Ponvert said.
"I am very confident that we got documents that no one had ever seen before," Ponvert said. "I am sure with regard to children's letters, no one had ever gotten what we got. In the end, we had dozens and dozens and dozens."
Altria declined to discuss matters related to the case other than its policy against settling cases.
Ponvert said that Hill became addicted to chewing tobacco as a teen, more than a decade before manufacturers were forced by government regulation in 1987 to place warning labels on their products. He said that Hill neither smoked tobacco nor drank, behaviors that tobacco manufacturers often argue are alternate causes of cancers.
Hill developed squamous cell carcinoma on his tongue, Ponvert said. Eventually, Hill's tongue was surgically removed and, before his death, tissue elsewhere on his face deteriorated.
"It was really horrific," Ponvert said. "It was a terrible way to die."
Hill's wife, Kelly, filed the lawsuit in 2005.