Cornered (50 page)

In 1998, as Congress begins to draft legislation, it has become clear that the legal system had reached its limits in the tobacco wars. It had been used effectively to expose a rogue industry. It could recoup government funds for Medicaid programs, and possibly also nonprofit health-care trusts, but it could not easily, or fairly, provide recovery for the tens of millions of smoking victims. There were simply too many of them and their illnesses and afflictions too diverse. For the courts, the national health epidemic of tobacco was like the national health disaster of asbestos, only worse because the number of victims was greater. Facing the asbestos litigation crisis, the Supreme Court had ruled on the fundamental distinction between courts and legislatures. In the Georgine asbestos class action, the court had turned down Ron Motley's plan for a “global” settlement of current and future claims, ruling instead that such claims were more sensibly a matter for Congress to resolve. The problem was that Congress had done nothing, as it had done nothing about the greater public health calamity of tobacco. Now was the time.

The small band of liability lawyers who had launched the Third Wave would now take a backseat—except for those who had yet to have their day in court—in Texas, in Minnesota, in a New York “son of Castano” case, and, of course, in the repeat performances of Woody Wilner in Jacksonville, Florida. (Wilner lost his third trial against R. J. Reynolds. The jury found the company was not negligent and its cigarettes were not “unreasonably dangerous and defective” in the case of a Jacksonville woman who had smoked for thirty years and developed lung cancer.)

Together the plaintiffs' lawyers had performed the civic duty that Dick Scruggs had spoken of three years earlier. They had pooled their resources to take on Big Tobacco's “organized money,” to borrow Justice Hugo Black's wonderful populist phrase for the funds of domineering corporations, and they had cornered the enemy sooner than anyone had thought possible. They had forced a truce on which the state attorneys general had been only too willing, after much huffing and puffing, to lay their imprint. The first two Medicaid suits, in Mississippi and Florida, were settled for $3 billion and $11.3 billion, more than they had dreamed of and in line with the June 20 proposal. At the next $14 billion battleground, in Texas, the industry vowed to stand and fight, but their past policy seemed to belie such valor. Each time they were confronted with a show trial and weeks of exposure in court, the companies had backed down. They settled the Broin secondhand smoke case brought by flight attendants in Florida. And at year's end, the industry was making overtures to “Skip” Humphrey in Minneapolis to settle the Minnesota suit, but it still looked like it would be the first legal engagement of the new year.

As the politicians set out to engineer the peace, the exhausted tobacco lawyers looked forward to a rest—or, as David Kentoff, the Arnold & Porter national coordinating counsel for Philip Morris, put it, to the day when the “exotic, bizarre and maverick” tort claims of the Third Wave would give way to a “more orderly and predictable environment.” That was how the old white-shoe campaigners, such as Kentoff, excused their outflanking at the hands of the guerrillas of the plaintiffs' bar. But the battle would continue, of course. As Elizabeth Cabraser had said, after the smoke of the Third Wave had cleared there remained a body of plaintiffs' lawyers with the same perpetual existence as the legal armies of Big Tobacco. They would be lining up at the field of dreams.

NOTES

Please note that some of the links references in this work may no longer be active.

In the spring of 1994, the Third Wave of tobacco litigation burst onto the front pages of American national newspapers, in news magazines, and on television—first on ABC News. For the next four years, the tobacco industry would receive the most concentrated media examination in more than a century of existence. Key reports appeared in
The New York Times
[NYT],
The Wall Street Journal
(WSJ),
The Los Angeles Times
(LAT), and
The Washington Post
(WP). Among the professional publications,
The Journal of the American Medical Association
(JAMA), the
New England Journal of Medicine
(NEJM),
The National Law Journal
(NLJ), and
American Lawyer
(AL) ran prominent articles.

Among congressional reports, legal and medical conference reports, and independent surveys are:

Regulation of Tobacco Products: Hearings before the Subcommittee on Health and Environment of the Committee on Energy and Commerce, House of Representatives, Part 1, March 25 and April 14, 1994; Part 2, April 28, May 17, and 26; Part 3, June 21 and 23.

The Tobacco Products Liability Project at Northeastern University 3-vol set: Cipollone and Related Document Packet #7-15-92.

Annual Conferences of the Tobacco Products Liability Project, 10th annual conference, December 2–4, 1994 onward; also for quick reference, see TPLP's Tobacco on Trial.

Mealey's Tobacco Litigation Conference Reports, Sponsored by Mealey Publications, Wayne, Pennsylvania; October 26–27, 1995; June 1–18, 1996; March 13–14, 1997; September 18–19, 1997; also the excellent bimonthly Mealey's “Litigation Report: Tobacco.” The 12-volume submission of the tobacco industry to FDA, “Comments of Brown & Williamson, Liggett Group Inc., Lorillard Tobacco Company, Philip Morris Inc., R. J. Reynolds Tobacco Company, Tobacco Institute, before the United States Food and Drug Administration,” Docket no. 95N-0253 and no. 95N-0253J. Reports of the Surgeon General, U.S. Public Health Service, 1964, 1979, 1988, 1989, 1990, 1994.

Among the several Internet sites now available are:

Tobacco BBS (Bulletin Board System). Information on smoking, news stories, and links to other sites.
http://www.tobacco.org

Centers for Disease Control information and links to other groups.
http://www.cdc.gov/nccdphp/osh/tobacco.htm

National Center for Tobacco Free Kids.
http//www.tobaccofreekids.org

RJR Nabisco Inc. company information and news.
http://www.rjrnabisco.com

Tobacco Control Resource Center and The Tobacco Products Liability Project.
http://www.tobacco.neu.edu

PROLOGUE: DINNER AT ANTOINE'S

This snapshot of the opposing forces in the Third Wave was the author's first meeting with members of the plaintiffs' bar.

CHAPTER 1: A NOVEL OBSERVATION

The story of the Nathan Horton case comes from interviews in Lexington, Mississippi, with Don Barrett, Ella Horton, and Earline Hart, and from contemporary news reports, especially those by Morton Mintz, WP, and Myron Levin, LAT.

The formation of the Mississippi suit comes from the author's interviews with key participants: Dick Scruggs, Mike Moore, Don Barrett, Charles Mikhail, and Professor Laurence Tribe. Profiles of Dick Scruggs, AL, April 1996, and WSJ, March 15, 1996; Mike Moore profile, NYT, April 6, 1997.

Garner, Donald, “Cigarettes and Welfare Reform,”
Emory Law Journal,
vol. 26, no. 2, Spring 1977.

CHAPTER 2: A DEATH IN NEW ORLEANS

The birth of the Castano class action was put together from interviews with Castano lawyers beginning in December 1994, especially with Wendell Gauthier, John Coale, Elizabeth Cabraser, Suzy Foulds, Russ Herman, Calvin Fayard, and Danny Becnel.

For a racy introduction to the liability lawyers, see John Jenkins,
The Litigators,
New York: Doubleday, 1989. Stanley Chesley was profiled in AL, Jan–Feb 1994. For a round-up of the ABC case, see Ben Weiser in WP, January 7, 1996. Glenn Collins wrote the most colorful business reports of the Castano lawsuit; see his “A Tobacco Case's Legal Buccaneers,” NYT, March 6, 1995.

For background on the Georgine (later Amchem) asbestos class action, see Henry Weinstein's “Debate Rages as Court Gets Plan to Settle Asbestos Cases,” LAT, February 21, 1994.

CHAPTER 3: THE DRAMA TEACHER

A series of author interviews with Merrell Williams started in May 1996. The author also interviewed Fox DeMoisey in Louisville, Kentucky. Phil Hilts published the first interview with Williams in NYT, August 8, 1994, and he expanded on the interview in his book
Smokescreen,
infra. Subsequent profiles of Williams appeared in LAT, June 23, 1996; WP, June 23, 1996; AL, Jul–Aug 1996. A key Brown & Williamson deposition of Williams was taken on March 20, 1996, in Pascagoula.

The story of how the Merrell Williams documents became public comes from the Castano lawyers.

The UCSF library incident is from court documents. For B&W surveillance at the library, see Declaration of Florie Berger, acting Head of Archives and Special Collection, in the Superior Court of the State of California for the County of San Francisco, case No. 96728, February 24, 1995.

CHAPTER 4: THE PERFECT PLEASURE

BAT researcher's “all we would want is a larger bag to carry the money to the bank” is from document discovery in the Florida Medicaid suit.

For background on the CEO's statements and industry funding of nicotine research, see the 107-page “Prosecution Memorandum,” submitted to Janet Reno by Congressman Martin Meehan, compiled by Clifford Douglas.

For background documents on the changing definition of nicotine, see Congressional transcripts of the Congressman Henry Waxman hearings, Part 1; see also the FDA's Appendices to the ruling on nicotine, August 1995, Appendix 1; “Nicotine Dependence and Cigarette Design: Implications for Research, Treatment, Policy and Litigation,” January 27–28, Northeastern University School of Law. For the industry's reply see vol. III and IV of FDA Docket Nos 95N-0253 and 95N-0253J, op cit.

DeNoble told his story in interviews with the author and in congressional testimony, Waxman hearings, op cit, (Part 2).

CHAPTER 5: A FOOL'S MISSION

The story of Lloyd Vernon Jones is from an interview with his widow; also from author interviews with Mitch Zeller, lead counsel on the Y1 investigation. The story of Yl is told in the Waxman hearings. op. cit., Part 3, pp. 5–31.

Kessler's arrival at the FDA comes from author interviews and newspaper reports; especially a 5,000-word article in
The Chain Drug Review,
vol. 14, no. 18, June 29, 1992. For Kessler's progress at FDA, see CBS
60 Minutes,
“Crusader,” December 4, 1994. The breast implant story is in “Science on Trial: The Clash of Medical Evidence and the Law,” by Marcia Angell, op cit.

For an overview to the year 1994 of tobacco and disease, see Carl Bartecchi et al., two special articles, “The Human Costs of Tobacco Use,” NEJM (Part 1 and 2), vol. 330. No. 13, March 31, 1994.

Origins of the FDA's relationship to tobacco were researched by Nathan Abse in the Library of Congress and the University of Wisconsin. The papers of Harvey Washington Wiley are in the Library of Congress Madison Building's manuscript room.

The background to the FDA challenge comes from author interviews with David Kessler, Jeff Nesbitt, and Mitch Zeller.

CHAPTER 6: THE SWEET SMELL OF GAIN

The life and times of Clarence Cook Little are recorded in a handful of newspaper articles about his jobs at the two universities, Maine and Michigan, at the American Cancer Society, and in publications of the Jackson Memorial Laboratory. The best sources are his papers in the library of the Laboratory in Bar Harbor, Maine, and at the Library of the University of Maine, Special Collections. They include pamphlets, biographies, personal letters, and drafts of several of his CTR reports.

On eugenics, see Daniel Kevles, “In the Name of Eugenics,” infra.

For background on Hill & Knowlton's relationship with the industry, see Karen Miller,
Amplifying the Voice of Business: Hill and Knowlton's Influence on Political, Public and Media Discourse in Postwar America,
University of Wisconsin-Madison, 1993.

For a compilation of industry documents referring to CTR, see Cigarette Papers, op cit. Also useful is the 3-volume collection of Cipollone documents put together by TPLP, op cit.

For Jim Green's comments, see BAT Research Conference, Southampton, 1972, p. 29, provided by Green. See also Green's essay “Cigarette Smoking and Causal Relationships,” 1976.

CHAPTER 7: KINGS OF CONCEALMENT

Ron Motley practiced his court speeches at plaintiffs' lawyers' tobacco litigation conferences. This is from the Mealey Tobacco Conference, West Palm Beach, June 17–18, 1996; also author interview with Motley.

The lawyer takeover of the industry is well documented in the Merrell Williams papers and analyzed in
The Cigarette Papers,
infra; see also deposition of J. Kendrick Wells in
Burl Butler
v.
Philip Morris,
Circuit Court for the Second Circuit Judicial District of Jones County, Mississippi, February 2, 1996; see also Philip Morris papers unearthed in Minnesota litigation (ref. Chap. 10).

For Shook, Hardy background, see David Margolick, “Kansas City Law Firm Defeats All Attacks on Tobacco Clients This ‘Firm' Doesn't Kill Its Associates,” NYT, November 11, 1992; “Did Big Tobacco's Barrister Set Up a Smokescreeen?”
Business Week,
September 5, 1994; Myron Levin, “Smoking's Big Guns,” LAT, December 15, 1996.

The author interviewed Eysenck in London, September, 1996.

CHAPTER 8: AN ORGY OF BUNCOMBE

Author interview with David Kessler, September 1996.

FDA rules are in the Federal Register, Friday August 11, 1995, Part V.

After their experience with the
Day One
program, ABC shelved a second documentary, “Tobacco Under Fire,” for the show
Turning Point.
The network claimed that its Emmy Award–winning producers Martin and Frank Koughan had refused to allow the program to be edited to a shorter length. The film attacked the industry for selling to youth and examined the industry's export drive in markets in less developed countries.