Cornered (42 page)

The tiny courthouse, old and worn from decades of use, was packed with journalists, television crews, stock analysts, and lawyers. The tobacco company's representatives looked confident, letting journalists know they would be available for comment when it was over.

Shortly after three o'clock, the six jurors, five men and one woman, ended nine-and-a-half hours of deliberation, and Judge Brian Davis asked the foreman, Samuel Gaskins, a retired postal-service supervisor, to read the verdict. The jury found the tobacco company negligent in selling Grady Carter an “unreasonably dangerous and defective product,” and they awarded Carter and his wife $750,000 in damages. The courtroom murmured with disbelief. It was only the third time a tobacco company had been ordered to pay damages. The first award was for $400,000 to the family of Rose Cipollone, and that had been reversed on appeal. The second was a $2 million award to a California smoker who had developed mesothelioma, a fatal form of lung cancer, which the smoker had attributed to the asbestos fibers in the Micronite filters of Kent cigarettes. That award was on appeal.

A smiling Grady Carter leaned back from his chair at the plaintiff's table and squeezed Mildred's hand. “Somebody needed to take these people on,” he said outside the court. “A lot of people are dying of lung cancer.” Wilner congratulated his client and thanked him for being courageous under fire from the tobacco company's defense counsel. Wilner felt it was a close call, but he didn't show it. “We proved ninety-nine percent,” he told reporters outside the courthouse. “I think you will hear carping about the one percent. Nobody's perfect. You can't prove everything.” The tobacco representatives didn't stay to be interviewed, after all.

The shockwaves hit Wall Street immediately: Philip Morris stocks tumbled 14 percent, RJR Nabisco dropped 13 percent. American Brands, which sold the Lucky Strikes brand to Brown & Williamson in 1995, and BAT, Brown & Williamson's British parent, were also down. Overall, tobacco stocks lost $14 billion in value in a few hours.

In official statements, the companies were defiant. The verdict would be appealed, promised Brown & Williamson. The company claimed the judge had allowed inadmissable evidence, such as permitting Carter to speculate about what he would have done if there had been a warning before 1966 on cigarette packs. They also complained about Wilner's insistence that the company should have marketed a “safer” cigarette. He had failed to offer any evidence of a design alternative, “much less one that would have avoided the plaintiff's injury,” they said.

Philip Morris dismissed the verdict as an “aberration,” implying that this small-time lawyer was merely lucky, and it wouldn't happen again. Stock analysts basically agreed. They thought that the Carter verdict would survive an appeal, but nothing in the Carter case necessarily meant Wilner could go on to win other individual cases. But questions remained: Had the antitobacco propaganda really changed the way juries viewed smokers? And what influence did the new evidence have on juries?

The only certain result was that if the verdict survived on appeal, Woody Wilner would receive his percentage of the award—he won't say exactly how much—and scoop up $1.8 million in fees that the judge ordered the tobacco company to pay separately. He had become a star of the plaintiffs' bar.

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U
NTIL THE CLOSING STAGES
, the Carter trial had received little attention. It had seemed to most observers that Wilner was pursuing an old ritual that had been shown to be a failure too many times for any radical departures. For almost three weeks, Wilner, a partner in the small eight-lawyer firm of Spohrer, Wilner, Maciejewski, Stanford & Matthews, had stood alone against one of Big Tobacco's largest law firms, Chadbourne & Parke, of New York. This was not only Wilner's first time against the industry, it was his first time on the plaintiff's side of the court. For the last fifteen years he had made a good, but not spectacular living defending asbestos companies. Some members of the plaintiffs' bar scoffed at Wilner's switching to the plaintiffs' side just as the tide seemed to be turning against the tobacco industry. But Wilner could not be accused of hopping on someone else's bandwagon. He had created his own casebook.

Since 1995, Wilner had been advertising in Florida newspapers for smoking victims and had built up an inventory of more than two hundred individual cases, involving different tobacco companies. He planned to bring them to court one at a time, if possible once a month. “Every tobacco company will get their turn,” he had said with a chuckle.

The Carter case received little attention until the final days. Grady Carter was anything but the perfect client. At seventeen he had started smoking unfiltered Lucky Strikes. They were made by the American Tobacco Company, which had been bought in 1995 by Brown & Williamson. Carter's family had pleaded with him for years to give up cigarettes. They had sent him newspaper and magazine articles on the dangers of smoking, but Carter kept smoking. He even declined an offer by his government employer, the Federal Aviation Administration, to send him to no-smoking classes. When his doctor advised him to give up, he switched to a doctor who smoked. Finally, he quit when he was told he had cancer and started coughing up blood. “I liked smoking,” he admitted under oath. “I liked the taste, and I didn't like how I felt when I didn't smoke.”

The telltale shadows had shown up on Carter's chest X ray in 1991. Doctors had removed part of the lung, and at the start of the trial the cancer was in remission and Carter himself was in reasonably good health. At sixty-six he was robust and had enough energy to ride a motorcycle for pleasure around the backstreets of Jacksonville on Sunday afternoons. He was not the most likely smoking victim to elicit much sympathy from a jury, and Wilner's lawyer colleagues had advised him against taking the case. It sounded like a typical one that the tobacco industry loves to fight: a smoker who knew all the risks and had made a personal choice to take them. In previous trials, jury after jury had balked at giving such smokers much sympathy, or any damages.

But the climate was changing and Wilner felt it was worth the test. The antitobacco propaganda of the Third Wave had been in full swing for more than two years. Liggett had defected and settled its case with the Castano group and five of the states that were suing the industry for Medicaid costs. Most importantly, Wilner had won the court's approval to use the Merrell Williams documents, stolen from Brown & Williamson's own confidential files in Louisville. Wilner said later that he thought they had made a big difference, reinforcing the claim that Carter was addicted to nicotine and that the company had been negligent in not telling their customers they were “dealing with a deadly product.”

At the trial, Wilner had preempted the tobacco company's traditional “choice” defense by admitting early that the smoker shared responsibility. “Selling is a two-way street,” he said, using the tactic adopted by Barrett in the Horton trial in Lexington, Mississippi. Wilner preferred to call it “breaking the ice” with the jury. Once that admission was out of the way, he focused on the company's liability.

Under Florida state law, it's the manufacturer, not the consumer, who is required to possess expert knowledge of their products, and to warn the consumer if the hazard is not obvious—or not as well known to the user as to the manufacturer. The consumer could be blamed if he misused a product, but Carter had not done that, argued Wilner. “Do they maintain that Mr. Carter smoked wrong? That he smoked too many cigarettes, that he smoked them too fast, that he smoked them too far down? No, Mr. Carter purchased the product, and used it as it was intended to be used,” he told the court. It is the product, the cigarettes, that are “defective,” argued Wilner. “Cigarettes are ‘dangerous' to an extent beyond that which would be contemplated by an ordinary customer with the ordinary knowledge of the community.”

Blaming the company for failing to warn Carter of the hazards of smoking before warning labels went on cigarette packs in 1966, Wilner accused the company of a dereliction of duty, a failure of civic responsibility. “Brown & Williamson has a debt to pay and it's time they paid it,” said Wilner.

One of his exhibits was a videotaped deposition of Robert Heimann, former chief executive of the American Tobacco Company, which made the Lucky Strikes Carter had smoked. This was the same tape used by Barrett in the Nathan Horton trial.

In the tape, Heimann appeared arrogant and aloof, saying it had never occurred to him that one day researchers would establish that smoking causes cancer. Asked whether the Surgeon General was more qualified than he to determine if smoking is hazardous to health, Heimann replied, “No.”

Shrewdly, Wilner did not ask for an outrageous sum. He wanted $1.5 million in compensatory damages and no punitive damages. In the Horton case, the jury had not responded well to Barrett's excessive recommendation that the jury award Horton's widow $17 million ($2 million in compensatory and $15 million in punitive damages) in one of the poorest counties in the nation. Wilner aimed at a more digestible level; he doesn't try his cases on sympathy. “My feeling has always been it's not the amount; it's establishing the process that the tobacco companies have been negligent that matters,” he says. Wilner suggested $600,000 for Carter for past pain and suffering and another $400,000 for his future health problems, including the loss of six to seven years of life expectancy. Carter's wife, Mildred, should receive half her husband's award, or $500,000, he argued.

The company's defense was traditional. Even though the ground had shifted with the new evidence, the company's counsel, Bruce Sheffler, continued to claim that there was no scientific evidence that smoking
causes
cancer; Carter chose to smoke and assumed the risk. “This case is about Mr. Carter, his decisions, his choices, why he made them, why he didn't,” said Sheffler. Had Carter quit when he was advised by his doctor and his family, he would have lowered his risk of developing lung cancer, but he chose to keep smoking. The company had a duty to warn only when the company knew more about the product than the medical community and the general public, and the company did not know the dangers in the 1950s when Carter started to smoke, claimed Sheffler. Later on, there were plenty of articles about the risks of smoking; Carter simply ignored them.

Importantly, Sheffler's defense provided no explanation of the Merrell Williams documents that clearly showed the company did know prior to 1966 that nicotine was addictive, and that tobacco smoke contained carcinogens. He presented no company witnesses to counter the damaging internal documents from the Merrell Williams collection. Instead, Sheffler described the key 1963 Addison Yeaman memo (“Moreover, nicotine is addictive. We are then in the business of selling nicotine, an addictive drug.”) as the mere “musings” of a company lawyer. There was no scientific evidence to support such a claim, he said.

Finally, Sheffler urged the jury to dismiss the case because Carter had filed outside the four-year statute of limitations from the time that he knew, or thought he knew he had cancer. Carter was a few days late, said Sheffler. He had filed on February 11, 1995, and he had found out on February 5, 1991. “That's reason alone to return a verdict for the American Tobacco Company.”

Wilner had reserved part of his summing-up time for rebuttal. “I've sat through two hours of nonsense, just now,” he told the jury. This was 1996, he said, and yet the tobacco companies were still refusing to admit that smoking caused cancer. “Where is the accountability?” he asked. “When is it going to stop? It echoes in your brain, this scary refrain: More research. More research is needed.”

The jury did not take instantly to Wilner's pleadings. At the start of the first day of deliberations, four of the six jurors had sided with the company. The four included a heavy smoker and the lone woman member, who had once worked on a tobacco farm. One of the two who favored Carter was Samuel Gaskins, the jury foreman. Gaskins could not get over what he called the “crass hypocrisy” of the company's argument that Carter was aware smoking was harmful, but they would not admit it themselves. “They can't have it both ways,” he would later tell
The Wall Street Journal.
The second Carter supporter was Christopher Ray, a twenty-five-year-old marketing coordinator, who objected to the “almost abusive” cross-examining of Carter by Sheffler.

It was when the four jurors leaning to the company's side went back over the evidence that they began to change their minds. The 1963 Addison Yeaman memo, Heimann's arrogant deposition, and the lingering picture that Wilner had produced of the seven tobacco company CEOs—including B&W's Tommy Sandefur—declaring under oath before Congress in April 1994 that nicotine was not addictive, were key pieces of evidence that eventually would persuade the four to turn to Carter.

The question they had to answer was, Should Carter be held responsible for his smoking? They reread a key instruction from Judge Davis about Florida's consumer-friendly law, which says manufacturers have “the duty to possess expert knowledge” of the products they sell and to test them fully. By the afternoon of the second day, all six jurors had agreed that the company had failed its customers.

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A
S AN ANTIDOTE
to Wilner's case, the tobacco companies turned to another individual claim in Indiana, where a leftover from the Second Wave of litigation was coming to a close. On August 23, 1996, after sixteen hours of deliberation, a jury found four cigarette companies not responsible for the lung-cancer death of Richard Rogers, a fifty-two-year-old Indiana lawyer who had smoked two to three packs of cigarettes a day. The jury also rejected claims by his wife, Yvonne, that the four companies that had made the brands he smoked had sold a defective product. The companies hailed the verdict as confirmation that the Carter case was, in fact, an “aberration.” Juries had not started to change their minds about the responsibilities of the smoker and the industry would continue to win in court.