Cornered (3 page)

The results were a surprise, but the uprising was inevitable. Big Tobacco had become so rich and powerful, no part of government at any level would take it on. Only the lawyers of the plaintiffs' bar had the wit, the strength, and the prospect of big rewards to make it worth their while. Like all uprisings, it had several small beginnings. One of them occurred in a tiny Mississippi town on the edge of the Delta at the end of the 1980s, during the final phase of the Second Wave.

1

A NOVEL OBSERVATION

“M
R
. R
OSS
: I feel that in time an objective study should be made into … cigarette smoking … to make certain that people who use [cigarettes] do not place an overdue burden on the others that do not use them and that the payment they make should be equal to the costs they create.

M
R
. S
ATTERFIELD
: That is a novel observation, I must confess.”

—
An exchange in 1969 between Arthur Ross, then chairman of the Franklin National Bank, and Congressman David Satterfield of Virginia during hearings to ban cigarette advertising on television

 

H
OLMES
C
OUNTY
, Mississippi, is depressingly poor—fifth from the bottom on the federal poverty scale. One reason is the land. The county lies sixty miles to the north of Jackson, the state capital, on the edge of the Mississippi Delta. But, in contrast to the Delta's fertile floodplain, Holmes County's red clay is unworkable and barren. Small landowners raise a few cattle and a hog or two, but in high summer the land is abandoned, blanketed in great cascading sculptures of kudzu. The county seat is Lexington, a tiny town of 20,600 built around a central square. It has a handsome redbrick courthouse with a clock tower, a thirty-foot-high Civil War statue, and several stores doing a brisk trade in secondhand goods with advertisements such as “Used Tires Guaranteed 3 Months.” A mobile-home factory provides employment for the lucky few, the size of their wage packet being dependent to a large extent on the damage wrought to the Gulf Coast during hurricane season. A few miles outside Lexington, you could be in rural Central America. Poorly dressed children play in dirty backyards with underfed dogs.

*   *   *

I
NTO THIS
S
OUTHERN BACKWATER
in the fall of 1987 rolled the frontline legal forces of the American Tobacco Company, maker of Lucky Strikes, Pall Malls, Tareytons, and Carltons. They were preparing to spend millions of dollars from the company's $1.5 billion in annual tobacco sales to defend a lawsuit brought by a black carpenter named Nathan Horton. Aged fifty, Horton had smoked two packs of Pall Malls a day for more than thirty years, and he blamed the American Tobacco Company for his inoperable lung cancer. The image of this huge international tobacco company descending on tiny Lexington to squash the claim of a dying carpenter was the best, and the worst, example of what those plaintiffs' lawyers who had been through a tobacco lawsuit and survived to tell the tale called “the Wall of Flesh”—a legal machine made up of hundreds of attorneys, paralegals, researchers, scientific advisers, and private investigators, not to mention public relations consultants, that form the defense team when any U.S. tobacco company is challenged in the courts. The American Tobacco Company was then owned by American Brands, which, like other tobacco giants, had diversified over the previous decade and also owned life insurance companies, a liquor company that included Jim Beam whiskey and Gilbey's gin, and various other manufacturing enterprises, including makers of office products, padlocks, and golf clubs. Nathan Horton was a self-employed carpenter who had served in the navy, where he'd begun smoking two packs a day. He'd saved enough money to build his own house for his second wife and their six children, a step up from trailers and cement-block duplexes.

In 1986, Horton was hired by a sharp-witted, personable local lawyer named Don Barrett to help build a duck-hunting camp on the nearby Yazoo River. Barrett runs a family firm known as the Barrett Law Offices across the road from the courthouse and if Lexington had a squire, it would be Don Barrett. His home is only a short walk from the courthouse square, past the police station and the county jail. It is a Southern mansion set in a salient of prosperity amid live oaks, neat lawns, and well-groomed family pets. A great Shumard oak, said to 350 years old, guards the main entrance to Barrett's house. The law practice was started in 1933 by his father, Pat, who still works there. Don Barrett is a graduate of the University of Mississippi Law School, class of '69. He started specializing in toxic waste cases and personal injury law in the seventies and became chairman of the toxic torts section of the Mississippi Trial Lawyers Association.

Like many of his colleagues in the torts business, he kept looking for a chance to take on the tobacco companies. Horton, then fifty years old, had been told by his doctor that he had two years to live. Barrett offered to represent him on a contingency fee.

To Barrett, Horton looked like a good case, perhaps the best opportunity in a while to confront the industry. Mississippi was one of ten states in the union with a tort statute of “pure” comparative fault, which means that a plaintiff can win damages if a jury decides the maker of the product bore even a fraction of the blame for an injury. In almost all the other states, a plaintiff could not recover damages unless the defendants were found to be more than 50 percent responsible. In Mississippi, in theory, a manufacturer who was held just 1 percent responsible for Horton's condition would be liable for a proportionate share of the actual damages awarded.

Horton's suit was unusual in another respect. He claimed that the tobacco company had knowingly sold cigarettes contaminated with pesticides. Barrett had obtained an American Tobacco internal memo from 1976 stating that residues of the bug killer known as DDVP were present in cigarettes, in some cases in amounts more than four times higher than the federal maximum permitted in foods. A second memo a year later reported that American Tobacco was still “exposing unprotected finished cigarettes and little cigars as well as open bulks of tobacco and wrapping materials to DDVP aerosols.” The memo also said that the way the company was spraying DDVP was not in compliance with directions from the Environmental Protection Agency. It was not exactly a winning weapon, but Barrett was looking forward to using it in court.

Still another reason for Barrett's confidence was that Lexington is one of the worst places for a large, wealthy corporation to defend a case against an aggrieved individual—especially a tobacco company against a local black smoker. It takes nine of twelve jurors to decide such a case in Mississippi. Holmes County is 75 percent black and an all-black, anti—big business jury was anticipated. Mississippi is also a nontobacco state where the tobacco companies were seen as symbols of big-city corporate culture, white-run businesses manipulating poor blacks from afar. Barrett could also count on some resentment of tobacco company marketing practices. Of late, the tobacco companies had been increasing their advertising targeted to blacks, a group disproportionately affected by smoking-related diseases. Cigarette consumption was falling among whites but it had increased among blacks, with young black females accounting for the fastest growing group of new customers. Black men had a 58 percent higher incidence of lung cancer than white men and blacks lost twice as many years of life, 8.1 compared to 3.8, because of smoking-related disease. Even so, R. J. Reynolds was preparing to market a cigarette targeted at blacks directly. Called “Uptown,” it was so roundly condemned by black leaders and doctors that it was eventually scrapped.

After looking at the American Tobacco Company's finances, Barrett decided to demand one of the largest-ever sums for Nathan Horton's illness: $2 million in actual damages and $15 million in exemplary or punitive damages, those intended to make an example of a company's wrongdoing. Adding together Mississippi's favorable law, the sympathy Horton could command from his peers, and the determination of Barrett and his colleagues, observers of tobacco litigation thought Barrett had the best chance yet. The veteran antitobacco campaigner Dick Daynard, of Northeastern University Law School in Boston, commented, “In Holmes County you have people who are not immediately going to assume the beneficence of established American institutions like tobacco companies.”

Wall Street was taking the case seriously, too. Tobacco stocks were already heavily discounted—that is, undervalued compared with other blue-chip stocks—because of pending lawsuits. Stock analysts, intent on sending back instant reports, were preparing to descend on the little Lexington courthouse with its one public pay phone. Some analysts were predicting possible drops of 15 percent, which in the case of the biggest company, Philip Morris, meant several billion dollars of lost value.

Even as Barrett prepared the case for trial, Horton's lung cancer was steadily sapping his strength. Once a robust six feet, one inch and 185 pounds, he was now down to 137 pounds. He was bent and weak of voice, preserved by blood transfusions and dependent on powerful painkillers and other medications. It became clear he would not survive to take part in the trial. Late in January, Morton Mintz of
The Washington Post
interviewed him at home. They talked about his son, who had studied pharmacy at Ole Miss, and about fishing, but also about death. Horton said, “I have some good days, and I have some days when I cry all day. Some nights,” he said, he was “scared to go to sleep, because this will be the end of it.” Other times, he had “nightmares about cigarettes. I get to dream about them, craving. If it were so that cigarettes did give me cancer, I wish people would know it. I would hate for anyone to be in the position that I'm in right now.” He died a few days later. He was buried in a tiny cemetery down the dirt road from his house. The Veterans Administration picked up the bill for the funeral and gave him a military headstone. His wife, Ella, took up the case on his behalf.

The first sign of American Tobacco's extraordinary commitment to its defense in the Horton case came that fall. At the courthouse in Lexington, a team of private investigators arrived, having come all the way from Los Angeles to carry out a thorough examination of the five hundred names on the jury register and make background files on all of them. The staff at the courthouse was aghast. Earline Hart, a young black woman who was the deputy circuit clerk when the L.A. team arrived, particularly remembers a handsome surfer type named Steve. She never knew his surname. “They went through all the court dockets, civil and criminal,” she recalled, “including copies of marriage records or any liens against property. When they were finished with our records, they went to the Tax Collector's Office to find out if they were property owners, and then they went to the Justice Court to see if they had any misdemeanors filed against them.” The courthouse had never witnessed this kind of pretrial investigation.

The company also hired “consultants”: local leaders of the community who could advise the defense lawyers on reactions of the jury members once the trial began. Their job was to sit in the courtroom each day and act as a “shadow jury.” Earline Hart called them the “fan club” because they would turn up each day and sit on the tobacco company's side of the court. The courtroom, which holds about 150 people comfortably, had up to 300 spectators each day. Local people stood in line to be sure of getting a seat. About fifteen or twenty were members of the “fan club,” and anyone who sat in one of “their” seats was promptly asked to move elsewhere. Dick Daynard, who came down from Boston to observe the trial, put his briefcase on one of the reserved seats, and went to get a drink of water. When he came back, his briefcase had been moved to the other side of the courtroom. He was told that this was where the defendant's trial consultants sat. The effect was to let the jury know they were being watched by community leaders who had control over the welfare and economy of the county. “They always began the day shaking hands with the defense lawyers in full view of the jury,” he recalls. “I've been in lots of courtrooms in my life and nobody's ever moved my briefcase from one bench to another.” Although the tobacco company never admitted paying them, some of the consultants received $50 an hour, more than many workers in Holmes County made in a week.

American Tobacco hired five Mississippi law firms to help defend the case. The leader of the team was James Upshaw of nearby Greenwood. The company's New York lawyers were also present in force. They rented a wing of the local motel and sectioned it off with security guards. Room service meals were provided by the restaurant next door. The out-of-state lawyers quickly discovered that Holmes County is dry and the only local liquor store in Lexington was the Beveridge Shop. For years, the store's supply of Bombay gin had been gathering dust on the shelves, since the locals preferred whiskey. Soon after the tobacco lawyers hit town, the gin disappeared. There also seemed no end to the company's expense account. In Lexington, the defense team rented a house to serve as office space. The Federal Express delivery man made frequent visits there. On his last trip after the trial, he picked up a load of 1,500 pounds of documents bound for New York, at a cost of $5,000.

Barrett's funds, by contrast, were severely limited and his operation was local. It included Fred Clark, a black lawyer from Greenwood, and Charles McTeer, another black lawyer, from Greenville. Clark had graduated from Ole Miss law school ten years earlier and had worked with Barrett on toxic waste cases. McTeer had graduated from Rutgers in 1972 and was a well-known civil rights lawyer.

To bolster his case, Barrett had deposed the company's former chairman and CEO, Robert Heimann. During two hours of examination about his twenty-five years with the company, Heimann showed himself to be arrogant and uncaring. Among several arresting observations, Heimann claimed that the idea that smoking was hazardous to health had never occurred to him or to anyone else in the company and he could not recall his board of directors ever discussing the issue. Asked whether it had ever occurred to the company that one day researchers would establish that smoking was hazardous to health, Mr. Heimann simply said, “No.” Although he had never studied medicine and was not a statistician, the former chairman claimed that he was more qualified than a medical doctor to pronounce on epidemiological findings. The 1964 Surgeon General's report that was the first to establish a causal link between lung cancer and smoking was based on “spurious statistics” and had been advocated in “a reprehensible propaganda campaign,” he said. Asked whether the Surgeon General was more qualified than he to determine if smoking is hazardous to health, Heimann replied, “No.” He said, “Most physicians have little or no knowledge of statistical nuances and would be easily taken in and misguided by their improper use.”