Cornered (22 page)

A New Jersey pathologist named Oscar Auerbach, working with war veterans under a grant from the American Cancer Society, had spent eight years examining more than 100,000 slides containing cells from the bronchi, the two main lower branches of the windpipe, of more than 1,500 corpses, men and women. He found abnormal and precancerous cells in smokers that did not show up in nonsmokers' lungs. The heavier the smoker, the more frequent the cell changes. In reaction to the irritation caused by the smoke, the lining of the bronchi had grown an extra two layers, trying to protect itself from the smoke, and in the process narrowing the air passage to the lungs. In a number of cases this thickening had turned into so-called metaplasia, an abnormal proliferation of cells that can become cancerous if unchecked. Auerbach called it “carcinoma in situ,” cancerous growths that had not yet burst through the bronchi and infected other sites in the body.

Dr. Little also ignored the growing dissent among some of the researchers within the U.S. tobacco industry itself. Plaintiffs' lawyers were to find plenty of evidence for it later in the Merrell Williams papers, and also in documents they would unearth separately in pretrial discovery.

Third Wave lawyers in a 1996 Florida case dug out another report, this time from 1962, by Alan Rodgman, the research chemist with R. J. Reynolds. He had been with the company since 1954 and this was his sixth report on the smoking and health problem. As BAT's Jim Green had done in the wake of the Royal College report, Rodgman made some remarkably frank judgments. “The majority of scientists accept these [statistical] data as indicative of either a high degree of association or a cause-and-effect relationship between lung cancer and smoking,” he wrote. And yet, he said, after a decade of publicly faulting the studies for methodology, the (U.S.) industry had ended up with nothing more than the dictum that “you can't prove it” and that “mice are not men.” Rodgman complained about Little's simplistic rebuttals of the epidemiological evidence, and pointed out that fewer than a dozen scientists and statisticians actually opposed the conventional wisdom that there is a direct cause and effect. He wondered why R. J. Reynolds was not doing more in-house research to tackle the problem and why the data concerned with “carcinogenic compounds” available from his department had not been published. How could a company continue to repeat Dr. Little's maxim of “not proven” when they had research of their own showing there was a link between smoking and cancer? he asked. The commercial risks of being found out to have hidden such research were obvious.

Rodgman said it was “not his intention to suggest that the company accept the cigarette smoke—health data at face value,” but the company should be more active in such studies. And he concluded with this prescient warning: “What would be the effect on this company of not publishing these data now, but being required at some future date to disclose such data, possibly in the unfavorable atmosphere of a lawsuit?”

A much more threatening attack on the industry came in January 1964: the U.S. Surgeon General would issue a report that, for the first time, declared smoking to be a cause of lung cancer. It concluded, “Cigarette smoking is causally related to lung cancer in men; the magnitude and effect of cigarette smoking far outweighs all other factors. The data for women, though less extensive, point in the same direction.” Smoking was also said to be the most important cause of chronic bronchitis and it increased the risk of dying from emphysema, although that link had not been established as causal. Male smokers were also found to have a higher death rate from coronary heart disease, although no causative role was proven.

Now it was official: smoking caused lung cancer. But, once again, Dr. Little dismissed the findings. The link had not been proven, he said in his annual report. One member of his scientific advisory board, Dr. Paul Kotin, spoke privately of resigning if Little continued to ignore the results emerging all around him. In reality, his TIRC had never been anything more than a collection agency for information on smoking and health for the private use of the industry; it had never been aimed at solving the problem of smoking and health.

Two British tobacco industry researchers, Philip Rogers and Geoffrey Todd, both with the U.K. industry's Tobacco Research Council (the equivalent to the TIRC in the U.S.), spent a month in the U.S. in the fall of 1964, interviewing tobacco company presidents and officials, industry scientists, publicists, lobbyists, and congressmen. At the end of their stay, they wrote a report blandly entitled “Policy Aspects of the Smoking and Health Situation in the U.S.A.” A broad overview of the American tobacco industry, it is one of the most insightful documents to be unearthed by the Third Wave lawsuits whose lawyers refer to it as the “de Tocqueville report.” It has two devastating passages; one on the lawyers' takeover of scientific research, and another on Dr. Little's research group, the TIRC.

The two British researchers concluded that Little's group was a sham as a scientific organization. Its research was confined “to the diseases with which smoking is statistically associated,” but it did not research the actual contents of the cigarette. Pharmacological research into the effects of nicotine was “about as close as the research comes to a cigarette.”

As for Little's scientific advisory board, the British report said the members “continue to meet and decide on applications for grants to carry out research on what appeared to us to be projects of no more than remote relevance to current problems.” There was “either no interest in or indeed no mention of [Little's research program] amongst the companies.”

Although spurned, and sometimes abused, by his colleagues, Little never once wavered in his industry cheerleading. He made only a feeble complaint a few months before he died in 1971, when he acknowledged that the “team spirit” of his scientific advisory board was under threat. More funds for basic research had to be found, he said in his annual report, for those who had “lived the faith for over fourteen years.” But the funds never came. By then, it was too late. The tobacco companies had established a pattern of concealment of the harmful effects of tobacco. There was no question of modifying those policies, no going back—until Merrell Williams stole his cache of papers from Brown & Williamson, industry whistle-blowers began telling their own stories, the Waxman hearings turned the spotlight on David Kessler's FDA inquiries, and the buccaneer lawyers of the plaintiffs' bar launched their final assault.

7

KINGS OF CONCEALMENT

Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity?… Despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.

—
Judge H. Lee Sarokin

 

I
N HIS GRAY
double-breasted suit and snakeskin cowboy boots, Ron Motley was pacing the anteroom of a West Palm Beach hotel and fidgeting; a slender, neatly wrapped package of nervous energy. It was late afternoon and he was waiting to address a conference of lawyers suing the tobacco industry. A colleague greeted him, asking about the delay. “They're pushing me back a damn hour,” Motley complained, flicking his floppy black hair off his face and looking hurt. “They're breaking into my beer time, I'm getting thirsty.” In a burst of frustration aimed nowhere and at no one, he added, “Y'all fuckin' me up here.” Nobody took any notice. They'd heard it before and they didn't mind.

A star trial lawyer of the plaintiffs' bar, Motley's the best there is, or so many would say; sharp, witty, passionate. So what if he likes a drink? The son of a gas station owner from the poor neighborhood of North Charleston, South Carolina, Motley jokes that he “grew up as a grease monkey,” quickly adding that he was the first in his family of distant Irish immigrants to go to college, at the University of South Carolina. A courtroom orator in the populist mode, he once dressed up in a doctor's white coat to cross-examine a pretentious expert witness, and during one of his asbestos trials he spun “the asbestos wheel of fortune,” with panels showing each of the industry's excuses for the diseases its product caused. A veteran of plaintiffs' victories over such consumer hazards as silicon breast implants and the Dalkon Shield contraceptive device, as well as asbestos, Motley is a self-styled junkyard dog. Once he clamps his jaws on a corporation suspected of knowingly injuring people, he never lets go. When he's not in court nipping at a witness or playing to a jury, Motley is ill at ease. Given a delay in one of his public performances, he's out of sorts, desperate to be back on stage. In 1993, with Dick Scruggs, at the end of one asbestos settlement, the two agreed they were bored with chasing companies whose wrongdoing was, by that time, well known and admitted, and they asked each other, “What's next?” Since 1984, when his mother, a longtime smoker, lay dying of emphysema, Motley had vowed to avenge her death. It was natural that Motley joined forces with Scruggs and Moore in Mississippi, and with Gauthier in New Orleans, and he could not wait for the chance to meet the tobacco industry in court.

On this day in the summer of 1996, he entered the conference room before the other speaker had finished and deliberately distracted the audience by walking up and down, looking at his watch, and shuffling the handful of file folders containing his speech.

Dick Scruggs, the Mississippi lawyer and Motley's partner in several Third Wave suits against the tobacco companies, was running the conference and he began to take the hint. He called an end to the dreary session on tobacco company liability insurance—nobody seemed to know whether the companies were insured and no one seemed concerned about it. There were more important things to worry about, like upcoming trials. And they were waiting for Motley.

Although Motley was well known among this group, Scruggs introduced him. “He is a senior partner in Ness, Motley, Loadholt, Richardson & Poole of Charleston, South Carolina. He gained a nationwide reputation as one of the leading litigators of asbestos-related personal-injury claims and has served as lead trial counsel in a number of consolidated asbestos cases. He currently serves on the board of governors of the American Trial Lawyers Association and is a member of the Inner Circle of Advocates.” The audience applauded respectfully.

In silence, Motley set himself up at the podium, arranged his folders as he would for an opening address to the jury, sorted notes, and made sure the tabs were in the right place. He cleared his throat. It was a performance, after all.

He asked for the lights to be dimmed so he could show slides of tobacco industry internal documents; secret files that, he said, just keep pouring into his office from anonymous sources—the media, government agencies, and even from Europe. “We receive documents from ‘Mr. Butts' (the Gary Trudeau cartoon character) and he seems to live all over the U.S. and never uses the same post office.” It was an in-joke about the anonymous donor of the box of documents sent to Professor Stan Glantz at the University of California, the only one who had actually received a packet from “Mr. Butts.” In all his long experience in running liability cases, Motley said, he'd never seen anything like the flow of documents on tobacco.

And so to the matter at hand, the tobacco conspiracy. “In 1954, the tobacco companies issued a ‘Frank Statement To Cigarette Smokers' that accepted an interest in the people's health as a basic responsibility ‘paramount to every other consideration in our business,' but all they created was an illusion … they practiced the Big Lie philosophy, like Joseph Goebbels. They told a lie over and over again on every occasion.”

Motley assured his audience that the companies would pay for their misdeeds. No question about it. “This thing is not going to go away,” he promised. “Trial dates are set: Mississippi, March '97; Florida, August '97.” The evidence will all come out, he pledged—everything that the Evil Empire of tobacco did to the public health of America.

His speech was modestly entitled “The Conspiracy to End Conspiracy.” And what a conspiracy it was, he said. This was not a cabal of high-flying businessmen involved in a big deal that made them rich; this was an orchestrated plot in which lawyers, not businessmen (pause for effect)—lawyers connived in a cover-up to suppress public access to information about tobacco and disease. The evidence will “startlingly belie the notion that the public was aware of the risks of smoking.… One of the most telling things we've learned in the last few months is the efforts of in-house lawyers and outside counsel to purposely and fraudulently withhold information from the courts of our country.… The evidence of wrongdoing here is so overwhelming.”

From the stash of documents stolen by Merrell Williams, Motley produced a 1957 paper showing how the British company BAT and its American subsidiary, Brown & Williamson, were so concerned about lawsuits that they began to use code for words like lung cancer and suspected carcinogens in tobacco smoke. On the screen the document read, “As a result of statistical surveys, the idea has arisen that there is a causal relationship between ZEPHYR and tobacco smoking, particularly cigarette smoking … tobacco smoke contains a substance or substances which may cause ZEPHYR.”

“Now,” said Motley adopting an advisory tone, “if you're in New Orleans you'd say that ZEPHYR is a minor-league baseball club because that's what it is. If you were to look in the dictionary you would find that ‘zephyr' is a ‘light breeze, a gentle wind, the West Wind, a breath of air.' We know, however, that's not what they meant.… ZEPHYR meant cancer of the lung.… We know that from the Merrell Williams papers.”

He paused. “Why do lawyers in a corporation and scientists in a corporation speak in codewords if there's no conspiracy?” And he began to cite the evidence.