`A pack in your pocket and a cigarette in your mouth`
Not only did he smoke, but he was required to smoke - on the job. Jim McEvoy told this to Firm principal, Victoria Edises, twenty years ago, long before the secret documents of the tobacco industry had been made public.
Back then, when asbestos plaintiffs' attorneys were emboldened to sue tobacco companies, they were overwhelmed with motions, interrogatories and depositions, awash in a sea of paperwork. The tobacco industry spent millions to keep out of asbestos litigation, forcing plaintiffs either to stop suing them or go bankrupt in the process.
That this was an intentional strategy was revealed in a confidential memo written by an R.J. Reynolds attorney. The company admitted that it sought to make asbestos cases in which it was sued 'extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners.' In short, 'the way we won these cases was not by spending all of Reynolds' money, but by making that other son of a bitch spend all his.'
Jim McEvoy and The Firm succeeded in one of the first cases in these tobacco and asbestos wars.
Mr. McEvoy contacted the Kazan office in 1980. His story was similar to that of many The Firm clients in those years: He grew up in the hard times of the thirties, when his family was newly arrived in California. His father was a restaurant manager in San Francisco; his mother raised four children and worked in the restaurant.
When he was old enough, Jim helped out in the restaurant, but his first real job was in the shipyards during World War II. Later he married and had four daughters. He lived an active life - he was an enthusiastic skier and skater - and worked in various fields - from being a radio operator in the US army to driving a cab on the streets of San Francisco.
And, like many of our clients, he suffered from severe shortness of breath. Since the late 1970's he'd been unable to work. When he recounted his work history it was immediately obvious that, many years earlier, he'd been exposed to asbestos products.
In 1944 and 1945 he was employed by the Luminous Safety Products Company. He worked in many of the Bay Area shipyards - the Kaiser yards in Richmond, Bethlehem Steel in San Francisco, Moore Dry Dock in Oakland - installing luminous tape on the ships under construction and being repaired. He performed this work in close proximity to many other trades, including insulators, pipefitters and boiler makers, and he told Victoria and her paralegal how dusty it was below deck. From the testimony of many clients and experts they knew that this dust was, in large part, asbestos dust.
In the final months of World War II, Mr. McEvoy worked for L.D. Reeder Company. This company applied and distributed asbestos insulation spray products. He alternated between two tasks. First, he emptied bags of raw asbestos onto a conveyor belt that took the asbestos to an open hopper where it was mixed with other ingredients. Then he sprayed this asbestos-containing mixture, in ships and in ammunition tunnels and storage areas.
Clearly Jim McEvoy had been exposed to large quantities of asbestos, and x-rays showed evidence of prior asbestos exposure. The Firm therefore filed a 3rd party complaint on December 19, 1980, against a number of asbestos manufacturers, and a workers' compensation claim against several of his employers. (James McEvoy v. Johns-Manville, et al., Alameda County Superior Court, 540978-1; James McEvoy v. L.D. Reeder, et al., Workers Compensation Appeal Board of the State of California, OAK 097574 & OAK 092129.)
However, as we prepared Mr. McEvoy's case for trial, doctors' reports indicated that while his chest x-rays showed evidence of previous asbestos exposure, he had severe chronic obstructive pulmonary disease (COPD.) According to these doctors, the COPD was caused by cigarette smoking and this was the underlying cause of his disability; asbestos really wasn't the major culprit.
Mr. McEvoy's cigarette smoking history was long and heavy. There were times when he'd smoked two packs a day. With this smoking history it looked as if the asbestos defendants might succeed in assigning virtually all of our client's disability to his smoking habit.
At that time - the early 1980s - it was known that individuals who had been exposed to asbestos and who smoked cigarettes were at a tremendously greater risk of contracting lung cancer and other lung diseases.
(A 1985 report by the Surgeon General on The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace, showed that asbestos workers who smoked a pack or more a day were 87 times more likely to die of lung cancer than the general non-smoking population. This is 8 times more likely than other smokers and 17 times more likely than asbestos workers who did not smoke.)
However, while asbestos defendants were being successfully sued, no one had been able to make a case stick against tobacco defendants, even when doctors could prove cigarette smoking had caused most of the problem.
And that was why, when Victoria Edises asked Mr. McEvoy detailed questions about his smoking history, his answers were so interesting: He started smoking in his teens and smoked relatively lightly for many years - perhaps half a pack a day. Then, in the 1950s, he started to smoke much more heavily.
Why? Because smoking was required on his job.
Mr. McEvoy was a sales representative for Philip Morris in 1952-1953, U.S. Tobacco Company in 1955-1958, Larus Brothers in 1958-1961, Silleb/Philip Cigar Company in 1961, and Liggett & Myers in 1969. He worked with cigarette wholesalers and various retailers in northern California, his territory ranging from King City to Crescent City. He negotiated with store managers to display his employer's tobacco products prominently, maintained and supplied these displays, and gave away samples.
When he made a pitch to a store manager, or handed out sample packs to potential customers, he was expected to smoke his employer's brand. 'You walk in a store, you're selling, you're using their products, the company's products,' he explained in his deposition.
'I'm interviewed, I'm hired, I'm told I'm getting two cartons per week for personal use,' was how Mr. McEvoy described his first day working for Philip Morris in the 1950s. 'When I hold store sales and I've got 50 cartons stacked up and I get free merchandise - I better be smoking that company brand.'
'Be sure to use only our brands,' he was told by a supervisor. 'I had a smoking allowance on my expense account at all the places. It didn't matter which company, you always got a smoking allowance whether it was cigars, pipe tobacco, cigarettes...' Even the size of this personal consumption allowance was the same at his different employers: two cartons per week (57 cigarettes a day.)
The Firm amended Mr. McEvoy's workers' compensation claim to add the tobacco companies that he'd worked for. (These companies could not be part of his 3rd party suit because of the rule that workers' compensation provides the exclusive remedy for actions between employee and employer.)
The tobacco companies, of course, contested Mr. McEvoy's account of his work, claiming that smoking was not part of the job or required for the job. However, when pressed to provide evidence that Mr. McEvoy's account was incorrect, they came up short.
In April 1987 a story appeared in the San Francisco Examiner about Mr. McEvoy and his lawsuit. The next day a man called. In the late 1940s, he had been a salesman for Brown & Williamson, another tobacco company. 'The tobacco companies have gotten away with murder,' he stated, and confirmed Mr. McEvoy's account of how things worked.
This witness told us that there was a lot of pressure to sell cigarettes, to hand out cigarette and tobacco samples, and to smoke the employer's brand while doing so. In fact, he was given so many cigarettes that he couldn't smoke all of them. He quit the job after a year because he didn't want to smoke that much, but, working as a tobacco salesman, he added, 'you had better have a pack in your pocket and a cigarette in your mouth.'
Faced with strong legal arguments and mounting evidence supporting Jim McEvoy's account of his employment conditions while working in the tobacco industry and his exposure to asbestos in the 1940s, the defendants chose to settle rather than go to trial. Mr. McEvoy's 3rd party case against asbestos manufacturers and distributors was successfully resolved, and his workers' compensation application against his employers was also resolved in his favor, with money coming from both asbestos and tobacco insurance carriers.
It was the first case we know of where an individual with lung disease successfully sued and collected damages from both the asbestos and the tobacco industries.
Mr. McEvoy died in December 1990.