Cornered (40 page)

Motley's raiders became the SWAT team of the antitobacco forces. A third of the seventy lawyers in his Charleston firm of Ness, Motley, Loadholt, Richardson & Poole would eventually be assigned to the tobacco wars. No expense was spared. The team became known for their rough-hewn manners by day and the fine dinners they hosted by night in whichever town they were plundering for evidence. “It was always worth going just for the wine; it was invariably so fine that it had to be decanted,” said one of the lawyers who attended such events.

Motley's arrival at a gathering of plaintiffs' lawyers, always by private jet and stretch limousine, was like the arrival of a pop star. People would ask, “Where's Ron?” And the answer would always be, “Ron's coming. Got delayed.” But he would always turn up. Lawyers flocked around him as he entered the hotel foyer because he always had news of something important: a new document, a deposition, a whistle-blower. “Ron was constantly creating excitement and inviting people to his beach house, picking them up in the plane and getting them all worked up that he was on the cutting edge of the litigation and the rest of Castano was in the dark and clueless,” recalled a Castano lawyer.

Motley loved to show off, perhaps more than any of his colleagues. Riches gleaned from asbestos cases gave him the opportunity to live like a star. Weekend work-and-play parties at his beach mansion on Kiawah Island became legendary. Shortly after he joined the Castano group in the summer of 1994, Motley asked some of the lawyers down for the weekend. They included the Southerners—Gauthier, Don Barrett, and Dick Scruggs. Dick Daynard had flown in from Boston. They spent the day talking about how to find more industry documents and, in the evening, Motley invited them out on his new yacht.

They boarded it around sundown, intending to sail a leisurely few miles along the coast to a restaurant. But it turned out to be more leisurely than planned. The boat wouldn't start at first and when it did, it would go only very slowly. By the time they reached the restaurant many cocktails had been served. Motley fell asleep at the table, and his girlfriend drove him home in his Ferrari. The boat and crew left without the guests, who were stranded—no boat, no car. The bartender took pity on the group and drove them home in his old Volkswagen van, with Don Barrett singing “Miss America” in the back. The next morning, Motley acted as if nothing had happened and immediately got down to business.

Motley's strategy was “slash and burn,” said a Texas lawyer, who noted that the state had at first respectfully declined the offer Motley made to be the trial lawyer in the Texas Medicaid suit. “We thought his style was better suited to the Bible Belt.” The Texas lawyers had not forgotten how Motley had moved into a hotel suite in Houston during an asbestos trial and lived high on the hog—even by the elevated standards set in those parts. They christened him “Hollywood.” But they all respected the thoroughness of his investigation and his exhaustive depositions of high-placed officials from the enemy camp. Motley made it his business to be as expert on the subject as his witness. Quite how he managed it with his hectic after-hours life, no one could fathom, but Motley made himself indispensable. Every attorney general in charge of a state case, every lawyer in charge of a class action or an individual suit knew that without Motley on the payroll they would be missing something. So they hired him. In the Third Wave of tobacco litigation, Motley would represent thirty of the thirty-nine states that sued the industry. Even the fiercely independent Texas lawyers would change their minds and invite Motley to help try their case when it came up at the end of September 1997. “You have to admire the guy,” said Coale after watching Motley closely for two years. “He's everywhere.”

For all his dedication, his accomplished peformances, and his social energy, however, Motley failed to unseat Gauthier—if, indeed, that was his intention. In the end, it was not Motley but the Fifth Circuit Court of Appeals that pushed the Castano class action off center stage. But not before Motley had had a chance to skirmish with the enemy. Some wondered, after the event, whether the tobacco companies might settle the case right there. Their battle formation was at least temporarily in disarray.

*   *   *

I
N
O
CTOBER
1994, seven months after the Castano suit was filed and during the early, unreal phase of the Third Wave, Motley was presented with a rare opportunity to skirmish with top tobacco lawyers. He had never faced them in court before, although his asbestos experience had given him a good grounding in the medical science of the lungs. He had learned about the synergistic effects of tobacco smoke and asbestos dust.

The industry had launched a counterattack on a broad front. They had poured money into the midterm congressional elections and into election campaigns in states making efforts to impose tobacco control, such as California and Colorado. Philip Morris was in an especially spiteful mood, threatening to move its Park Avenue headquarters out of New York and cut off the millions of dollars it gave yearly to the arts if the city council passed smoking controls in restaurants. In Washington, D.C., the companies had deployed their finest lawyers on a mission to oppose the federal government's plan to end smoking in the workplace. Despite hours of testimony from several hundred experts and witnesses on the effects of secondhand tobacco smoke, the plan by the Occupational Safety and Health Administration was being challenged on a daily basis by highly paid tobacco lawyers from the country's blue-chip law firms. Each day for several months, in the ground floor auditorium of the U.S. Labor Department building near the Capitol, a phalanx of industry lawyers, twenty to thirty strong, in their dark suits, white shirts, and scarlet suspenders, would sit on one side of the auditorium. They were led by John Rupp, a handsome, dark-haired, articulate lawyer who represented the Tobacco Institute. On the other side, pitifully outnumbered, would sit the three representatives of the antismoking health groups, the American Cancer Society, the American Lung Association, and the American Heart Association. They were led by Matt Myers, a sharp-witted, liberal-minded, public-interest lawyer for the Coalition on Smoking or Health, who was to rise to much greater things before the end of the Third Wave.

The atmosphere was oppressive and conspiratorial. The tobacco lawyers kept to themselves, refusing to speak to their opponents. Sherri Watson, a pleasant, caring woman, who was the public relations officer for the American Lung Association, sat through the entire performance and said at the time that she felt she was being followed wherever she went. “I would go to the telephone, so would someone else. I would come out of the ladies room, so would someone else. I'd go get some gum, so would someone else. It was the same person from the other side of the auditorium.”

The health-group witnesses were subjected to withering cross-examination by Rupp and other industry lawyers, who knew as much if not more than the experts about the science of secondhand smoke. “We simply didn't have the resources to follow this,” said Watson. “We knew we were going to have to find some other support.” Myers said, “We were stretched so thin. The tobacco industry was gearing up to turn these hearings into their Armageddon on environmental tobacco smoke. I called Dick Daynard at Northeastern University and Ness, Motley and Ron Motley called back.”

Within days, what became known as the “Torpedo Team” was flying into Washington. Jodi Flowers from Motley's office was first, then Hugh McNeely and Rhet Klok from the Castano group in New Orleans. They set up a field office in a hotel. Motley followed a few days later. “That was a glorious day when we heard Ron Motley and the others were coming,” said Watson. “They were in another league. They came in with their little document carts and their black lawyer's cases. Motley looked so dapper with his cowboy boots. He was saying ‘Hi' to everyone; a very confident gentleman.”

Motley's strategy was to undermine the industry's witnesses and scientific experts by attacking their credibility. His first target was William Althaus, the former mayor of York, Pennsylvania, and now chairman of the National Smokers' Alliance, an industry-funded “grassroots” group. (The antitobacco forces called them AstroTurf organizations.) With a little bit of digging, Motley had discovered that Althaus, while mayor of York, had signed an executive order banning smoking in the city's offices. The order included the sentence, “The City should treat nicotine like any other addiction by providing financial assistance for a substance-abuse program.”

“Have you ever declared smoking to be addictive?” Motley asked, out of the blue.

“I don't recall,” replied Althaus.

“Have you ever declared environmental tobacco smoke to cause disease?”

“I don't recall,” the mayor said again.

The next day, Motley was quoted in the mayor's hometown newspaper, the
York Daily Record,
as saying, “We ruined your mayor.” Motley told the newspaper his aim had been to “reveal the NSA for what it is—a group of shills for the tobacco companies.” Motley said he had been called in to stop the health groups being “beaten up by slick tobacco industry lawyers. They wanted some of our junkyard dogs, and we had a lot.”

In the basement auditorium, the administrative judge running the hearing, a mild-mannered man named John Vittone, objected to Motley's characterization of the health groups as being “beaten up by slick tobacco industry lawyers.”

M
OTLEY
: Well, sir, I think my position simply stated is that the tobacco lawyers have a history of being well financed and well prepared to do a very effective job of pointing out deficiencies as they perceive them [and] the people who asked me to come here were not as well financed or prepared, or able to ask the same kinds of probing questions.

J
UDGE
: I don't see that as beating up on witnesses.

M
OTLEY
: Well, perhaps it's a matter of perception, your honor.

The judge then asked Motley if it were true, as the newspaper had said, that he had hired a private detective to get “dirt” on Althaus, because if it were true “it would indicate Motley had been beating up on a witness.… This is not a trial for damages.” Motley said it wasn't true. He had only hired a detective to get a picture of York City Hall.

Motley had set a new tone for the entire hearings. A second lawyer on the Torpedo Team, Hugh McNeely, cross-examined Albert Nichols, an independent environmental economist with the National Economic Research Association of Cambridge, Massachusetts. He had been invited to give evidence by Philip Morris and had disputed the number, and therefore the cost to employers, of the nonsmoking lounges OSHA had proposed if their rule was enforced. OSHA estimated $68 million a year; Nichols said $7 billion. But McNeely was more interested in whether Philip Morris lawyers had vetted the draft of Nichols's paper before he presented it to OSHA.

M
C
N
EELY
: Did the draft come back changed or altered in any way?

N
ICHOLS
: It came back with some editorial suggestions.

M
C
N
EELY
: Did [they] suggest that you use such terms as “alleged risk” instead of terms suggesting a causal relationship between ETS [environmental tobacco smoke] exposure and cancer and other diseases?

N
ICHOLS
: It's not really an issue in regard to my testimony since all of my testimony and information was on the costs of the rule and had nothing to do with the risk side of the rule.

M
C
N
EELY
: Well, you didn't answer my question.

N
ICHOLS
: I guess I don't see the relevance.

M
C
N
EELY
: Judge, can I get him to answer my question, yes or no?

J
UDGE
: If you know the answer would you tell him yes or no, if you can?

N
ICHOLS
: In a couple of cases they suggested that we use “alleged” before we used the word “risk.”

M
C
N
EELY
: You did in fact alter the terms in accordance with the tobacco company's editorial comments, is that correct?

N
ICHOLS
: Well, actually it was not the tobacco company, it was some of the attorneys. As I said, we did make some editorial changes, and some of them were of the nature of referring to modifying “risk” by “alleged” or “purported.”

M
C
N
EELY
: Well, would you please identify each and every attorney that reviewed your original submission draft for editorial comment.

J
UDGE
: Why, Mr. McNeely?

M
C
N
EELY
: I'm trying to find out who wrote this report, your honor.

McNeely admitted later that asking about the word “alleged” had been a guess on his part. The tobacco company lawyers were not amused; they wouldn't even get into the same elevator with the Torpedo Team. But Motley had shown them something of what was to come. He was aching to have a chance to cross-examine the industry's officials, but by the end of November the tobacco companies had had enough of the Torpedo Team. They started to withdraw their witnesses—and then themselves. Philip Morris wrote a letter to the judge complaining about Motley and the efforts of plaintiffs' counsel “to misuse the hearing process for purposes of advancing their own personal and monetary interests.” It was only the beginning of the chase.

*   *   *

W
HEN
J
UDGE
O
KLA
J
ONES
of the New Orleans District Court certified the Castano case for trial in February 1995, he admitted he really didn't know how it would all turn out. “With this decision, the Court embarks on a road certainly less traveled, if ever taken at all,” he said, referring to Robert Frost's poem. He was bound by Rule 23 of the Federal Rules of Civil Procedure: A class action must have too many plaintiffs to conduct individual trials; the claim must be typical of the class as a whole; and the representatives of the class must be able to safeguard adequately the interests of the class. Rule 23 adds two more conditions, which are known as “predominance” and “superiority.” Under the first, questions of law common to members of the class must “predominate” over questions affecting individual members. In other words, if members of the class come from different states, which have different tort laws, the class action may not be an appropriate form of seeking justice. Under the second condition, the class approach must be “superior” to other methods available for the fair and efficient adjudication of the claims. It must be a better way for the courts to handle large numbers of claims.