Cornered (51 page)

For tobacco industry's response to FDA, see 12 vols, op. cit.

CHAPTER 9: THE SCIENCE TEACHER

The author interviewed Jeff Wigand in May 1996, when he was allowed to talk only about his personal life. Even though he would be given a “pardon” by the tobacco companies in the June 20, 1997, deal, he was still unable to talk about his work at B&W until the spring of 1998.

His deposition was taken in Mississippi on November 29, 1995, and was written up by Alix Freedman in WSJ, January 26, 1996. WSJ put the transcript on the Internet.

For B&W dirty tricks on Wigand see S. L. Hwang and M. Geyelin, “Brown & Williamson Has 500-Page Dossier Attacking Chief Critic,” WSJ, February 1, 1996.

For the background to Wigand and CBS see Lawrence Grossman,
Columbia Journalism Review,
January–February 1996; “The Man Who Knew Too Much,” Marie Brenner,
Vanity Fair,
May 1996. Profile of John Scanlon,
New York
magazine, July 21, 1997.

CHAPTER 10: VOYAGE OF DISCOVERY

This chapter is based on interviews with Skip Humphrey, Mike Ciresi, and Roberta Walburn. The author was part of the British Channel 4 crew with Ciresi when he visited the BAT document warehouse in Guildford.

For background on Judge Fitzpatrick, see reports by David Phelps of the Minneapolis
Star Tribune;
in particular “Taking on Tobacco,” June 16, 1997, and a profile of Fitzpatrick, January 27, 1997.

Walburn argued her motion to include BAT Industries in the lawsuit in the County of Ramsey, state court file no. C1-94-8565, December 15, 1994; see also FDA, August 1995, Appendix 2, op. cit.

CHAPTER 11: THE FORDICE SAGA

For an analysis of the tobacco industry defenses, see Charles Mikhail, “The Tobacco Industry's Imaginative but Risky Defense to State Medicaid Actions”; Mealey's Tobacco Litigation Conference, June 1996; plus Mike Moore's “Memorandum in Support of the State's Motion For Ruling in Limine,” to Chancery Court of Jackson County, Mississippi, August 11, 1995; plus the defendants' Opposition Memorandum, August 22, 1996; plus Plaintiff's Reply Memorandum, August 25, 1995.

On the industry's economics, “Does Tobacco Pay Its Way?”
Business Week,
February 19, 1996; Kenneth Warner et al., “Employment Implications of Declining Tobacco Product Sales for the Regional Economies of the United States,” JAMA, April 24, 1996, vol. 275, No 16, pp. 1241–6; “Tobacco Industry Employment: A Review of the Price Waterhouse Economic Impact Report and Tobacco Institute Estimates of Economic Losses from Increasing the Federal Excise Tax,” Arthur Anderson Economic Consulting, Los Angeles, October 6, 1993.

CHAPTER 12: THE IDES OF MARCH

The story of the 1996 Liggett defection comes from author's interviews with Don Barrett, Bennett LeBow, Dick Scruggs, Woody Wilner, and the Castano lawyers. Once again, WSJ had the scoop; see Alix Freedman, Suein Hwang, Steven Lipin, Milo Geyelin, “Liggett Group Offers First-Ever Settlement of Cigarette Lawsuits,” WSJ, March 13, 1996. See also, Glenn Collins, “LeBow Savors a Victory, but the Game Isn't Over,” NYT, March 14, 1996.

CHAPTER 13: THE SORCERER'S APPRENTICE

The story of Hatsy Heep comes from Castano lawyers' interviews, plus her 68-page sworn deposition, New Orleans, Friday, April 5, 1996.

The background to the breakup of the original Castano suit comes from interviews with Castano lawyers and contemporary media reports.

The dialogue between Wendell Gauthier and Gary Black is Gauthier's recollection. Black recalled the conversation, but not in detail.

The Gauthier-Motley battle is from author interviews with Castano lawyers.

The author attended the OSHA hearings. Transcripts of the hearings are available from the U.S. Department of Labor. The incident with Mayor Althaus and the withdrawal of Philip Morris witnesses was written up in the proceedings of the 10th Annual Conference of Tobacco Products Liability Project, Boston, December 2–4, 1994, op cit.

Cabraser's critique of the Fifth Circuit's decision is in “The Road Not Taken: Thoughts on the Fifth Circuit's Decertification of the Castano Class,” ALI-ABA Course of Study, Civil Practice and Litigation Techniques in the Federal Courts, August 14–16, 1996, Seattle, Washington. The
Harvard Law Review
article is in vol. 110, February 1997, No. 4, p. 977.

CHAPTER 14: THE MAN ON THE PINK BICYCLE

This chapter is based on interviews with Woody Wilner. For Wilner's background, see Piper Lowell, “Florida the main staging area in battles against the tobacco industry,”
The Daily Business Review,
December 1, 1995; Maggie Mahar, “Where There's Smoke,”
Barron's,
October 14, 1996; Randy Noles,
Jacksonville
magazine, February 1997.

The 130-page transcript of Brown & Williamson's deposition of Irwin Tucker, Louisville, Kentucky, July 28, 1997. The subsequent doctors' reports on Tucker are enclosed in a letter to Wilner from Brown, Todd & Heyburn, of Louisville, September 10, 1997.

For jury analysis of the second Wilner trial see “Jury's Verdict Suggests Tough Times Ahead for the Industry,” Huang, Geyelin, and Freedman, WSJ, August 12, 1996.

CHAPTER 15: FIELD OF DREAMS

The title of this chapter comes from a remark made by Meyer Koplow at Harvard Law School seminar, “Should Tort Law Be on the Table,” July 31, 1997. This was a particularly useful overview of the proposed settlement because it included industry lawyers.

The story of the negotiations is pieced together from news reports and interviews with the plaintiffs' lawyers who took part. See also, Mealey's Tobacco Conference in Chicago, September 18–19, 1997.

EPILOGUE: AN ILLUSION OF SURRENDER

The attack on Stan Glantz comes from author's interviews with all parties concerned.

For reading on international tobacco interests, see WP series by Glenn Frankel et al., November 17, 18, 19, 20, 1996, and the banned ABC film “Tobacco Under Fire,” op cit.; also “U.S. Trade Policy and Cigarette Smoking in Asia,” National Bureau of Economic Research, Inc., working paper 5543.

For economic arguments of Jeffrey Harris, see his comments for the American Cancer Society, June 26, 1997, and his remarks at the American Cancer Society's press conference, Washington, D.C., July 24, 1997.

For relevance of Georgine (Amchem) asbestos litigation, see response of Laurence Tribe to questions posed by the U.S. Senate Judiciary Committee, August 12, 1997. Also, for evolution of product liability law to “generic liability,” see “War on Common Law: The Struggle at the Center of Products Liability,” by Carl Bogus,
Missouri Law Review,
vol. 60, Winter 1995.

SELECTED BIBLIOGRAPHY

Since the Third Wave began, three books have been published on the tobacco industry. The first is an encyclopedic work by Richard Kluger:
Ashes to Ashes
(New York: Alfred A. Knopf, 1996). The second is Stan Glantz et al.,
The Cigarette Papers
(University of California Press, 1996). The third is Philip Hilt's
Smokescreen: The Truth behind the Tobacco Industry Cover-up
(New York: Addison-Wesley, 1996).

Kluger's work is a monumental 807 pages of social and scientific history, unique in books about the tobacco industry because the author was given access to Philip Morris executives. Unfortunately, unlike the first generation of tobacco lords—the Dukes of Durham and the Reynolds of Winston in North Carolina—those that followed are not very interesting. They harvested the mammoth profits and retreated behind impenetrable defenses. These executives rejected the one chance of scientific and social progress—to produce a cigarette that gave pleasure without killing people. That scandal is given a full airing in Kluger's book, but, although published in the spring of 1996, his account does not include the Merrell Williams documents. Except for a brief, and curiously dismissive, overview of the Castano and states' Medicaid cases, the book stops at the end of the Cipollone trial.

The Cigarette Papers,
by contrast, is solely about the 8,000 pages stolen by Merrell Williams. It represents a meticulously annotated version of the documents and is an extraordinary source for anyone interested in the minutiae of the industry's policies. Much is still left unknown because many of the documents are proposals and conference notes, ideas and recommendations rather than specific policy directives.

Smokescreen
records how a
New York Times
medical-science reporter, Phil Hilts, found himself catapulted into the Third Wave in 1994, when he was the first reporter to see the Merrell Williams papers. While
Smokescreen
includes much of the new evidence against the industry, it does not follow the liability lawyers—even to their half-way point.

There are a dozen or so books written before the Third Wave. Three stand out, in my view. The first is Elizabeth Whelan's
A Smoking Gun: How the Industry Gets Away with Murder
(Philadelphia: George Stickley Co., 1984). Despite its sensational title, it contains a comprehensive—and nicely anecdotal—history of the tobacco epidemic. The second is Peter Talyor's
The Smoke Ring
(New York: Pantheon, 1984). Taylor worked for the BBC's news magazine
Panorama
and was the reporter on
Death in the West,
a film about cowboys with cancer and emphysema that Philip Morris succeeded in banning with a lawsuit. Taylor's lucid account was the last book on the tobacco industry to look at the politics and the science before the avalanche of internal documents.

The third is Christopher Buckley's satire
Thank You for Smoking
(New York: Random House, 1995).

O
THER USEFUL VOLUMES INCLUDE
:

Rob Cunningham,
Smoke & Mirrors.
Ottawa, Canada: International Development Research Centre, 1996.

Jordan Goodman,
Tobacco in History: The Cultures of Dependence.
London: Routledge, 1993.

Paul Johnson,
The Economics of the Tobacco Industry.
New York: Praeger, 1984.

Daniel Kevles,
In the Name of Eugenics.
Cambridge, Mass.: Harvard University Press, 1985.

Richard Klein,
Cigarettes Are Sublime.
Durham, N.C.: Duke University Press, 1993.

David Krogh,
Smoking: The Artificial Passion.
San Francisco: W. H. Freeman, 1991.

Robert Sobel,
They Satisfy: The Cigarette in American Life.
New York: Anchor Books, 1978.

Larry White,
Merchants of Death: The American Tobacco Industry.
New York: William Morrow, 1988.

INDEX

The index that appeared in the print version of this title does not match the pages in your eBook. Please use the search function on your eReading device to search for terms of interest. For your reference, the terms that appear in the print index are listed below.

ABC News

libel suit

Abrams, Floyd

acetaldehyde

acetylcholine

Action on Smoking and Health (ASH)

“addiction hypothesis”

Addiction Research Foundation

additives

Ad Hoc Group

advertisers, suit against FDA

advertising

bans proposed by FDA

Liggett settlement and

national settlement

targeted to blacks

targeted to children and youth

television prohibited

Advocacy Institute

“aggregation,” immunity and

Agriculture Department

Alciatore, Antoine

Alciatore, Jules

Althaus, William

American Association of Advertising Agencies (Four A's)

American Brands

American Cancer Society

American Federation of Women's Clubs

American Heart Association

American Lawyer

American Lung Association

American Medical Association

American Psychiatric Association

American Society for the Control of Cancer.
See also
American Cancer Society

American Tobacco Company

BAT and

Carter suit and

Castano suit and

documents

Green suit and

Horton suit and

legal bills

patents, FDA investigation and

Surgeon General's report and

Waxman committee and

Wilks suit and

American Trial Lawyers Association (ATLA)

ammonia

“Analysis of Cigarette Smoking Condensate, The” (Rodgman)

Anderson, Jack

Anderson, Tommy

Angelos, Peter

antitrust violations

Arizona Medicaid suit

Arlington, Josie

asbestos litigation

assumption of risk

attorney-client privilege.
See also
“privileged” documents

attorneys fees, national settlement and

Auerbach, Oscar

“backdoor prohibition” charge

Baker, Howard

Ballin, Scott

Banzhaf, John

Barfield, Rebecca

Baron, Fred

Barrett, Don

Gauthier and

Horton suit and

Liggett settlement and

Mississippi Medicaid case and

Motley and

Scruggs and

Wilks suit and

Williams documents and

Barrett, Pat

BAT (British American Tobacco) Industries

Minnesota case and

national settlment and

research and documents

safer cigarettes and

stocks

BATUS Holdings, Inc.

Becnel, Danny

Belli, Melvin “King of Torts”

Benson, Dan

benzpyrene

Berger, Florie

Bergman, Lowell

Berkson, Joseph

Berly, Andy

Berman, Steve

Bhopal disaster