Cornered (12 page)

B&W had argued that it was only trying to recover stolen documents, but Judge Greene wasn't buying that explanation. As no one had been found guilty of any criminal activity and the congressmen had not been involved in the acquisition of the documents, Greene focused instead on Williams, the whistle-blower. Here was a man trying to make public documents that were a matter of concern for the public health. That's what the case was about, he said. B&W's “simple yet ingenious strategy” of concentrating on the theft of the documents could have been obscuring a public health threat. He concluded, “One may well doubt, to put it charitably, that B&W would be mounting a tremendous and costly effort in Kentucky and in the District of Columbia, in proceedings against members of a Congressional committee and against the mass of the media, if the documents at issue did not represent the proverbial ‘smoking gun' evidencing the company's long-held and long-suppressed knowledge that its product constitutes a serious health hazard.” It was apparent, he said, that B&W was using the subpoenas “to intimidate and, in a sense, to punish” both Williams and the congressmen for their efforts to reveal the truth. The D.C. court should have no part in “so high-handed a course of conduct, and one so patently crafted to harass those who would reveal facts concerning B&W's knowledge of the health hazards inherent in tobacco.” For its part, the media claimed First Amendment privileges and the subpoenas against them were not pursued, but the threat of legal action remained against anyone who revealed the contents of the documents.

*   *   *

M
EANWHILE
, Gauthier, Scruggs, and the fast-growing band of plaintiffs' lawyers joining the antitobacco bandwagon were thinking of ways in which the Merrell Williams documents could be cleared for use as evidence in court. In January 1995, Ron Motley, the most persistent and energetic document hunter of the plaintiffs' bar, was the first to refer to them in a court motion. Motley was representing Burl Butler, a nonsmoking, clean-living, God-fearing barber from the small town of Laurel, Mississippi (population 9,000). In 1992, Butler had been diagnosed with lung cancer, which he claimed he had contracted from the cigarette smoke of his clients in the barber shop. He sued R. J. Reynolds, Philip Morris, Brown & Williamson, and ten other companies, claiming personal injury, fraud, and negligence.

As in the Horton case, industry lawyers and private investigators descended on Laurel. Before they had finished, everyone who had ever known Burl, or been into his barber's shop, his church, or his home, had been interviewed, and in the midst of chemotherapy, even Butler himself had undergone four days of depositions—the whole operation designed to find out if there was anything in his life that might have caused his lung cancer other than the smoke from his clients' cigarettes. The company sought information about everything from his wife Ava's recipe for gravy to the types of chemical fertilizers Butler might have been exposed to while plowing his father's farm with mules as a child. One of the defenses used by the tobacco companies is that cancer is a “lifestyle” disease—people who are “risk-taking personalities” tend to develop cancers more easily than the shy and retiring types. The companies noted that Butler liked to hunt and, as if these might be factors, worked with power tools and had been known to eat red meat. The tobacco lawyers found that cancer ran in Butler's family and they also discovered traces of cancer-forming fibers of talc in Butler's lungs. In the past, Butler's lawyers would probably have ended the suit right there; to pursue a case where talc, not tobacco, might be the cancer-forming agent looked even harder to win than many of the cases that had been lost. But the Merrell Williams papers had given the lawyers new confidence. Instead of dropping the tobacco companies, Motley added the talc companies to the suit.

Whatever had caused his cancer, Butler was dying from it, and tobacco lawyers wanted to be as close as they could to that event. On the day Butler died, a helicopter hovered over his house for no apparent reason and the unconfirmed story is that it was flown by agents for the tobacco company who were waiting for the ambulance to arrive to take away the body so that the company could be present at the autopsy. The company did ask to be present at Butler's autopsy but later withdrew the request, apparently deciding that it wouldn't look so good from the public relations viewpoint. Coincidentally, Butler died on May 7, 1994, the same day
The New York Times
published the first report on the Merrell Williams documents. His claim was continued by his wife.

Motley wanted to use several of the Williams documents in his case and argued in the brief that he should be able to because they had already been widely distributed by the media and also by the University of California at San Francisco, which had placed a full set of the documents in its library. Until Motley mentioned the university library, it was not generally known there was a copy in the archives. Certainly, Brown & Williamson had not known copies of the documents were there, and they lost no time in trying to get them back—and trying to discover how they had got there in the first place.

Within days of Motley's brief being filed with the Mississippi court, the prevailing air of calm and scholarship at the university library was suddenly disrupted by the presence of two strange men seen hanging around outside the library's special collections department, where the documents were stored. They were recording researchers coming and going. One of the men accompanied a woman colleague into the reading room to look at the papers. It turned out she was a paralegal from the local law firm representing Brown & Williamson. The men were private detectives. As the archivist, Florie Berger, came to work one morning, one of them said to the other, “That's her.” Berger was so upset she called the university lawyer's office, claiming the men, whoever they were, were intimidating her. University officials threatened to have campus police remove the detectives. They were withdrawn that day, but reappeared a few days later.

B&W filed a claim in San Francisco Superior Court to have the documents returned on the grounds that they had been stolen. The company sent Ernie Clements, who had been Williams's supervisor at the document room at Wyatt, Tarrant in Louisville, to review the archive collection. He claimed all of them were confidential. The university refused to give them back, citing the company's “cloak and dagger” operation as well as the academic and public interest value of the documents. Arguing that the documents had already been well aired in the media, the university lawyers said that to take them away from public view would be like “using a tin cup to bail water on the
Titanic.
” Eventually, the two sides reached an agreement that the documents would not be available to the public until the claim could be resolved. The university added that the documents had been sent anonymously to a member of the faculty.

That faculty member was Stan Glantz, a longtime antitobacco professor of medicine. Glantz is the very model of a sixties campus professor—witty, slightly rumpled, somewhat mischievous, and unashamedly political. He still drives the Dodge Dart convertible he bought in 1969. He trained as an engineer, actually a rocket scientist, and he had helped put men on the moon as a member of the space agency. He earned his doctorate at Stanford in engineering and economics, studying the heart muscle and other pump mechanisms. He is an editor of the
Journal of the American College of Cardiology,
one of the world's leading heart journals, and he cares deeply about the public health, particularly that part of it which has been so consistently damaged by tobacco. At some point in his heart research, he looked at drugs that affect the pump rate, including nicotine. That's how he came across the tobacco companies, and the more he learned about how they had concealed their own research and what they knew about nicotine's effects on the heart, the more he began to despise them. Like other academics of his generation, he decided to step beyond the laboratory and the classroom and, in his case, devote his life to exposing the way the tobacco companies have consistently lied about their product.

For their part, the tobacco companies call him a zealot, a derogatory term for any scientist because it suggests a biased and messianic approach. On the other hand, it does describes the gusto with which Glantz goes about his work. He is a crusader, a progressive academic who believes fervently that big corporations must be made to act in the best interests of the public, and not simply of their shareholders. In the case of tobacco, this means stricter government regulation of the industry. To this end, Glantz has lectured, written papers, and attended conferences all over the world. In recent years, he had been interested in the effects of secondhand smoke—whether nonsmokers can be seriously harmed by being in the presence of others who smoke. He has also exposed the industry's support of so-called grassroots smokers' campaigns, and their funding and lobbying efforts in local state legislatures.

To Glantz, May 12, 1994, was a turning point in his mission. A Federal Express box containing four thousand pages of Merrell Williams's stolen documents arrived at his office on the San Francisco campus at eleven o'clock in the morning. He had no idea where the box had come from. The sender's name was “Mr. Butts,” the cartoon character in “Doonesbury.” No return address was given but, although Glantz didn't bother to investigate who Mr. Butts was, he thought it was probably Dick Daynard, from Northeastern University. So did B&W. The company tried to depose Daynard to find out if he had copies of the documents and whether Williams had violated his gag order in giving the professor another set. But the redoubtable Daynard was not to be intimidated and refused to comply with the court order. He argued that copies of the documents had been in circulation for almost a year and he could supply no material evidence. Moreover, he ran an information collection center for lawyers and public health officials and whatever information he obtained was private and of vital concern to government and congressional inquiries and, therefore, should be accorded First Amendment protection. B&W wanted the Massachusetts court to hold Daynard in contempt and compel him to appear, but the court declined. In fact, Mr. Butts was not Daynard; it was Don Barrett. He had sent a copy of the documents to Glantz after Scruggs had delivered them to the Waxman committee on Capitol Hill.

Glantz immediately saw how embarrassing the documents were to the industry, and to B&W especially. Many of them were about nicotine addiction. Others detailed a sophisticated legal and public relations strategy to ensure that the tobacco companies kept chalking up victories in court. His first thought was to send them to colleagues working in these areas, but word soon got out through the antitobacco grapevine that Glantz, as well as Waxman's committee and the media, had copies of the documents. Because there was no single source of the documents, no one was quite sure—especially Brown & Williamson—whether anyone had a full set. Academics and reporters began arriving at the university to see if Glantz's box of documents contained papers or memos that they hadn't seen before, or read about in the media. His tiny office was hopelessly inadequate as a viewing room, so he decided to put them in the archives of the university library and there they stayed, available to anyone who cared to take a look, until Brown & Williamson discovered them.

B&W's attempt to block publication of the documents faced the same heavy burden imposed on all suits involving prior restraint; unless publication can be shown to directly endanger the lives of citizens or national security, courts have been reluctant to grant such requests. The university thought it was on solid legal ground despite the fact that academic institutions had rarely gone to court over the right to publish sensitive material. On June 29, the California Supreme Court rejected the request by B&W to stop the university library from making the documents available to the public. By coincidence, it was the twenty-fourth anniversary of the Supreme Court's decision allowing publication of the Pentagon Papers. It was quite a coup for the library and for the university legal department, whose chief counsel, Christopher Patti, said, “The university felt that it shouldn't bend to that kind of pressure. The feeling was that this is an issue that was central to the university's purpose and charter.” The library put them on the World Wide Web portion of the Internet on a page located at
http://www.library.ucsf.edu/tobacco
and also made the collection available on CD-ROM. Within a year, half a million people had visited the web page. Floyd Abrams, the New York First Amendment lawyer who specializes in the media, observed, “If Daniel Ellsberg were to have come into possession of the Pentagon Papers today, he would not need to find a newspaper to publish them.” Of the library affair, Stan Glantz observed scornfully, “We basically told them that book burning went out in the thirties.”

After a second failed effort to plug the leak, B&W issued a statement charging the court's decision was an invitation to employees to steal company documents and that it allowed plaintiffs' lawyers to sidestep the normal process of pretrial discovery. “This decision invites any person to steal documents and launder them” through a library so that “plaintiffs' lawyers can then argue that the documents are public,” the company said. Indeed, that was exactly the core of Ron Motley's brief to the Mississippi court in the Butler case. Merrell Williams's documents were now available to be used in evidence against the tobacco industry.

4

THE PERFECT PLEASURE

A cigarette is the perfect type of a perfect pleasure. It is exquisite, and it leaves one unsatisfied. What more can one want?

—
Oscar Wilde,
The Picture of Dorian Gray

 

All we would want then is a larger bag to carry the money to the bank.