Cornered (23 page)

Company lawyers interfered with industry research. They scrutinized and censored the work of a scientist who had demonstrated that the inhalation of fresh cigarette smoke produced tumors in the bronchi of mice. “Get that,” said Motley, his voiced raised, “the attorneys decided that the ‘quality of the work did not adequately support the conclusion'—despite the fact the researchers had done ten years of research and had been receiving tobacco money time and time again.”

Evidence: Lawyers tried to suppress the work of the pathologist Freddie Homburger of Cambridge, Massachusetts. Dr. Homburger, who had received nearly a million dollars of tobacco funding through Dr. Little's industry research group over almost twenty years, had found 90 percent of his experimental hamsters exposed to tobacco smoke showed severe cancers in the larynx. What happened to Homburger? He was paid a visit by industry lawyers who made it clear they were unhappy with his work and warned that if he didn't change the word “cancer” in his research paper to “pseudoepitheliomatous hyperplasia,” he would never get another industry grant. Homburger refused and published the study in 1974. That was the end of his funding.

Evidence: Industry lawyers warned that in-house company research could “turn sour” and, “if it goes wrong, it could become the ‘smoking pistol' in a lawsuit.…” “That's their words, not mine,” Motley assured his audience.

Evidence: “Dr. Little's Tobacco Industry Research Committee originally set out to do research
pro bono publico.
But in 1977, they admitted to themselves in this document” (pointing to the screen) “that they could no longer say that. Why's that? The reason was because the lawyers, not Dr. Little, not the scientists—the lawyers decided what was going to be funded and what was going to be published … the lawyers picked the research. Period.”

Evidence: Tobacco company lawyers had lied under oath in past lawsuits about the scientific research being done by the companies themselves. “Lies like that,” he said, “lies that any juror could understand, can win product liability cases.”

He ended to prolonged applause from the audience.

*   *   *

T
HE
M
ERRELL
W
ILLIAMS DOCUMENTS
had provided antitobacco attorneys like Motley with an unprecedented insider's view of the lawyers' takeover of the tobacco industry at the end of the '60s. Clarence Cook Little and the Hill & Knowlton public relations firm had been holding down the defenses until then, but the mounting medical evidence from epidemiological studies and the increasing threat of civil lawsuits and government regulation now presented the industry with a stark choice: either continue to lie about the health risks, or tell the truth about what they knew. The industry could abandon Dr. Little's “not proven” dictum and admit publicly what its in-house research showed (and what was now accepted by the British and U.S. government official medical bodies)—that smoking causes lung cancer and heart disease. Or, it could launch a much more sophisticated and systematic cover-up. In that case, the illusion of a controversy over smoking and health would have to be maintained and, at the same time, the industry's own research had to be protected from the prying eyes of resourceful and determined plaintiffs' lawyers like Ron Motley.

The Williams documents show that there was a debate—albeit a perfunctory one—on this issue inside the industry. Two lawyers, each with great influence in the industry, emerged on opposite sides. One was David Hardy, a conservative country lawyer from Missouri. The other was Addison Yeaman, the chief counsel of Brown & Williamson in Louisville, Kentucky. As a result of his contacts with B&W's British parent company, BAT, Yeaman had been exposed to a somewhat different viewpoint than Hardy. In Britain, where there was no contingency-fee system for lawyers, the threat of litigation against the tobacco companies was much reduced. In fact, there had been no lawsuits, so the companies were more open about the effects of smoking and had even entered into partnership research with the government. Tobacco company scientists in Britain discussed the link between smoking and lung cancer in their internal papers. Yeaman received their reports on a regular basis and began to believe that the best way, perhaps the only way to cope with the “crisis” over smoking and health, was to admit what the industry knew about the harm smoking caused and do something to clean up the offending chemicals in cigarettes.

Hardy, by contrast, had formed his opinions in the American heartland, in his hometown of Kansas City. He took up the challenge to defend the tobacco industry as though he were going to war, with plaintiffs' lawyers as “the enemy.” His solutions were rigid and authoritarian: as far as he was concerned, the only way for the industry to survive legal challenges and governmental regulation was to put severe restrictions on the flow of company information. Company scientific research should be locked up, he believed. He saw no place for the radical solution offered by Yeaman.

The debate spread throughout the industry, and the result set the tobacco companies on a course that assured their legal superiority throughout the First and Second Waves of tobacco litigation.

*   *   *

I
N EARLY
1963, the tobacco companies were in urgent discussions about how to deal with the upcoming report on smoking and cancer from President Kennedy's Surgeon General, Luther Terry. Several thousand studies had by now been published, and the word was that Dr. Terry's report would declare that smoking was not only bad for you but would declare officially for the first time in America that it was the cause of lung cancer. It was the most devastating attack on the industry since Ernst Wynder's mouse-painting study, a decade earlier.

At the same time, two of the latest BAT research reports on Yeaman's desk explored nicotine's strange dual action on the brain as a tranquilizer as well as a stimulating drug. This function was to become known as “Nesbitt's Paradox,” named for the young Columbia University student, Paul Nesbitt, who first measured this phenomenon under laboratory conditions using a group of college students. The new British research, which had been carried out in private at the Battelle Memorial Institute in Geneva, Switzerland, was codenamed “Hippo.”

The Hippo study involved animal experiments that observed the action of nicotine on the hypothalamus, a part of the brain then attracting much attention among medical researchers because of its apparent control over the pituitary gland, the body's so-called master gland. The body's normal defense against stress is to release hormones, known as corticosteroids, from the adrenal system through a complex joint action of the hypothalamus and the pituitary. Determining exactly how all this happens was then at the cutting edge of medical research. What concerned the tobacco industry was whether the adrenal corticosteroids, introduced as wonder drugs to cope with stress, might be better than nicotine, perhaps even replace it one day. The results of Hippo, however, showed nicotine was superior because it had fewer side effects, as long as it wasn't smoked, of course. As a bonus it also proved to be an appetite depressant, a property not exhibited by the other tranquilizers.

Although it had been known for years that smoking reduced the appetite—a fact army generals had observed since World War I—the complex chemical changes were not fully understood. It was now clear that nicotine degraded fatty acids. The Hippo experiments, which concluded that “nicotine is actually one of the most potent drugs against obesity,” were well ahead of their time and preceded published accounts by two decades.

At the same time the Hippo results reached Yeaman, the research labs at Brown & Williamson produced a new filter that showed real promise in being able to keep out some of the more harmful constituents of tar. Straying well beyond his legal brief, Yeaman now seized on the seemingly beneficial effects of nicotine, plus the new filter, as a way to make a radical shift in the industry's defensive public relations strategy and create its “first effective instrument of propaganda.”

In a two-thousand-word memo on company policy dealing with the upcoming Surgeon General's report, Yeaman made it clear that he had never been a fan of Dr. Little's approach because it seemed that sooner or later some combination of the constituents of tobacco smoke would be found to produce cancers. If the industry wanted to preserve its present “earnings position,” it should either “disprove the theory of the causal relationship, or discover the carcinogen or carcinogens, co-carcinogens, or whatever, and demonstrate our ability to remove or neutralize them.” If the industry admitted what had become clear to the rest of the medical and scientific community, it could then move on to the business of producing a cigarette with fewer harmful substances and begin to extol the virtues of nicotine as laid out in the Hippo reports. At that point, said Yeaman in the most oft-quoted sentence from the Merrell Williams collection, “We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.”

Yeaman suggested the industry should embark on “massive and impressively financed research into the etiology of cancer as it relates to the use of tobacco.” This research should probably be a cooperative effort with the Surgeon General, the Public Health Service, the American Cancer Society, the American Heart and Lung Associations, the American Medical Association, and any and all other responsible health agencies or medical or scientific associations concerned with the question of tobacco and health. Once that was set up, the industry would be “free to take a much more aggressive posture to meet attack.” It might, for example, stress the gaps in the scientific knowledge while showing it was doing all it could to close them—not just being party to a public relations front like Dr. Little's old TIRC. It could stress the “benefits” of nicotine over the new tranquilizers. B&W's new filter offered a “bridge,” Yeaman argued, over which the industry might pass from its present defensive position to a counterattack.

There was a legal danger, of course. By admitting a health problem, the industry might worsen its chances in lawsuits. But Yeaman pointed out that with one exception the lawsuits against the tobacco companies had all been won relatively easily by the traditional defense of placing the assumption of risk on the smoker. The exception was
Green
v.
American Tobacco Company.

Edwin Green had started smoking Lucky Strikes in the 1920s, when he was sixteen, and smoked up to three packs a day until 1956, when he was diagnosed with lung cancer. In 1957, Green filed a $1.5 million lawsuit in a Florida state court against Lucky Strikes's manufacturer, the American Tobacco Company, charging that by selling the product, the company had implied a warranty of fitness and should be held liable for any damages incurred. The jury concluded that Lucky Strikes had in fact caused Green's lung cancer, but awarded no damages because, they said, the company could not have known prior to the date Green's cancer was discovered that smoking Lucky Strikes would cause it.

The verdict was appealed on the grounds that Florida state law did not require the defendant to be aware of the dangers of its product in a suit involving implied warranty. A new trial was ordered. This time the judge ruled that the company could only be held responsible for breach of warranty if the cigarettes endangered an important number of smokers, not just one. In other words, Green's case was not enough to condemn an entire industry. Faced with finding whether cigarettes were dangerous to the general public, the jury found for the company, but it was a narrow escape for American Tobacco and the case caused great concern in industry boardrooms.

The question Yeaman had to address was how to ensure continued success in lawsuits after an admission that smoking caused disease. Not wanting to be, as he put it, “tarred and feathered” by his colleagues, Yeaman made what he called the “shocking” suggestion of putting a warning label on the cigarette pack. (As yet there were no labels; they were introduced in 1966 as a result of the Cigarette Labeling and Advertising Act, 1965.) Yeaman thought a suitable legend might be something along the lines of “excessive use of this product may be injurious to the health of susceptible persons.” The companies could then point to the warning as evidence that the smoker had assumed a known risk.

People who smoked prior to the 1966 labeling date could and would continue to make claims, but the Green case suggested the companies could put up a viable defense that they could not have known of the dangers before the labels were put on cigarette packs. Yeaman recognized that there was another problem: although the buyer might be found negligent in smoking a product he knew was dangerous, he could still claim that the seller's negligence was the greater in failing to make his product safe. In that case, it was important to establish a new “massively financed” joint research organization with independent research groups to produce a “safe cigarette.”

Yeaman had not suddenly turned into a public health advocate. As he had said, his plan was to find a way of keeping “earnings up.” As the industry was in the “nicotine business,” whatever kind of new, cleaner, and more acceptable type of cigarette was produced would, he suggested, be one that removes “whatever constituent of smoke is currently suspect while delivering full flavor—and incidentally a nice jolt of nicotine.” This combination of admission plus commitment to new research would put B&W at a tremendous advantage over its competitors, said Yeaman. In case the marketing department of B&W had not got the message, Yeaman added, “And if we are the first to be able to make and sustain that claim, what price Kent?”

Such radical thoughts appalled B&W executives, not to mention BAT officials in London. None of them would admit to selling harmful products. Nor did they want their private research papers made public in any joint venture with a government or other research body. That much had already been made clear. All the tobacco companies had been invited by Dr. Terry to submit research papers to his review committees. There had been an anxious discussion inside BAT and B&W as to whether the Hippo reports and the B&W filter should be presented. In London, BAT executives had been impressed by their laboratory confirmation of the tranquilizing and antiobesity effects of nicotine but wanted to do more research before they told anyone. In Louisville, B&W's CEO, Ed Finch, worried about the Hippo report's mention of cardiovascular disorders. Researchers already knew that nicotine could increase heart rate and contribute to high blood pressure. The carbon monoxide in cigarette smoke was found to encourage the formation of atheromas, the fatty plaques found in the arterial walls that contribute to the blockage of blood supply to the heart. At this point, researchers didn't know how significant smoking was in the creation of heart disease. In the end, none of BAT's or B&W's expert knowledge was passed to the Surgeon General's committee.