On Tobacco by ps94506


									August 28/ September 4, 1995                              The Nation.                                                           193

_     WHERE THERE'S SMOKE                                              What frightens the financial community almost as much
                                                                    as a plaintiff's verdict in Castano-which Black says could

Breathing FiJre                                                     drain the combined assets of Philip Morris and R.J. Reynolds,
                                                                    depending on the size of the class and the amount awarded
                                                                    per plaintiff-is the notification campaign. A good portion

On Tobacco                                                          of Castano's $6 million war chest will be spent on this pre-
                                                                    trial media bombardment notifying 45 million current smokers
                                                                    and the same number of former smokers of their right to sue.
                                                                    To join would mean simply clipping a coupon from a full-page
            eter Castano couldn't quit smoking. It was humil-       newspaper ad or responding to one on TV or the Internet.

P           iating. He first lit up at 16, and swore to stop when
            his fiancee insisted on it as a condition of their
            marriage. But he just couldn't do it. On their honey-
moon, Dianne Castano caught him sneaking one and threw
a drink at him. She never relented, and Castano spent ten
                                                                       By certifying an enormous class that includes al1 nicotine-
                                                                    dependent people, as well as the survivors of deceased
                                                                    smokers, U.S. District Judge Okla Jones II acknowledges he
                                                                    has embarked "on a road certainly less traveled, if ever taken
                                                                    at all." And although he allowed a classwide trial on key is-
years of marriage trying-with a spectacular lack of success-        sues such as whether the companies conspired to hide infor-
to hide his habit from his wife.                                    mation from smokers, he didn't permit that trial to determine
   In 1993, Castano died of lung cancer at age 47, and an           how much to compensate victims. That means a way has to
angry Dianne Castano approached the couple's best friend,           be found to determine damages based on the facts of indi-
Wendell Gauthier, a product liability lawyer in New Orleans,        vidual cases or groups of cases. "That's a hel1 of a problem
about suing the tobacco companies. Gauthier looked into it,         with 30 million or more plaintiffs," said Ronald Motley, one
but decided it was almost impossible to win a traditional           of the Castano lawyers.
wrongful death claim against the industry. Indeed, in more             The story of Castano is also the story of the 800 other suits
than 800 suits since 1954, the cigarette companies have gone        defeated by the corporate world's most ferocious litigator,
to trial only twenty-three times, lost twice, and spent not a       an opponent that never settles and spends whatever it takes to
dime in damage payments.                                            exhaust the usually small plaintiffs' firms. (The manpower of
   But in February, a world-class group of lawyers led by           tobacco's three biggest defense practices outnumbers all the
Gauthier received certification from a federal court in New         attorneys from the sixty-odd Castano firms combined.) The
Orleans to bring a class-acti0n suit on behalf of Peter Castano     industry put up $50 million to defeat the Cipollone case in
and three living, allegedly aadicted smokers, thus launching        New Jersey, dragged it out for ten years and finally took it
Castano v. American Tobacco, the largest product liability suit     to the Supreme Court. It buried the other side in paper, fil-
in American history. If the case goes before a jury, it will be
the first national class action for product liability ever to do
so, one that could represent 90 million current and former
smokers, who could win damages of $40 billion or more. To
pull it off,more than sixty of the most prominent personal-
injury law firms in the country have banded together to attack
the tobacco industry in one mega-suit. As Gary Black, a to-
bacco specialist for New York financial analysts Sanford
Bernstein and Co., characterizes it, "This case on a scale of
one to ten is a nine-and-a-half."
   Castano immediately stole the spotlight in a year that seems
to be building toward an all-out assault against cigarette mak-
ers: Four states-Florida, West Virginia, Mississippi and Min-
nesota-are suing to recover billions in public health care costs
for cigarette-related disease. Congress is considering addition-
al restrictions on youth-oriented cigarette marketing, as is the
Clinton Administration, which just accepted a recommenda-
tion by the Food and Drug Administration that nicotine face
regulation as a drug. And a federal grand jury is investigating
alleged tobacco company misrepresentations about the con-
tent and effects of cigarettes. Another may probe whether
cigarette executives lied to Congress.

Dan Zegart, a freelance writer and reporter, is at work on a
book about the tobacco industry.
194                                                      The Nation.                               August 28/ September 4, 1995

ing 100 motions. One witness was questioned for nine days.         cluded cigarette smoking is a dtsease-causing "habit of ad-
The exhausted plaintiff's firm, having spent $5 million in a       diction," and outlined a coordinated cover-up of this explo-
losing cause, finally quit.                                        sive knowledge.
   Cipollone points up why the future of legal attacks on the         Despite all this, few attorneys will take on the cigarette com-
industry is very much in doubt in the current political climate.   panies, which have a reputation for doing virtually anything to
Tobacco has poured money into national and state tort reform       win. The defense kept Rose Cipollone for four depositions-a
efforts, knowing that bills making it more difficult to bring      total of almost twenty-four hours-as she withered in the final
product liability suits, like those awaiting approval in Con-      months of an agonizing death from lung cancer. Burl Butler,
gress, would be the death knell for the individual tobacco         a Mississippi barber and the plaintiff in a second-hand smoke
plaintiff. The effect of such bills on class-action suits like     suit, was lying on his bed the day before he died when a
Castano is less obvious. But tinkering with the contingent fee     helicopter began hovering over the house. The tobacco lawyers
system or limiting awards for pain and suffering or punitive       were apparently waiting for Butler to die so they could
damages will have a severe impact on the ability of the plain-     immediately make a motion to autopsy the body.
tiff's bar to go after any large, well-funded corporate adver-        But the single biggest reason for the plaintiffs' losing record
sary, particularly tobacco.                                        is the fact that juries in most tobacco lawsuits have blamed
                                                                   the smoker for not having the willpower to quit what every-
                                                                   one believed was no more than a dangerous habit. The smoker
Castano seeks to prove a conspiracy                                had "assumed the risk" and the consequences were his or her
                                                                   responsibility. By March 1994, a year after the death of Peter
to bring offthe deadliest, longest-                                Castano, the emerging evidence of tobacco industry nicotine
                                                                   manipulation had convinced Wendell Gauthier that he could
running fraud in business history.                                 beat the cigarette makers with a suit based solely on the
                                                                   addictiveness of cigarettes, because addiction cancels out the
   At the state level, the $47 billion industry quietly gutted     assumption-of-risk argument. If the industry lied about nic-
dozens of suits in California and New Jersey in 1987 (one was      otine, the smoker was suckered. He couldn't have assumed
Cipollone) by having more restrictive tort laws passed. Cali-      a risk he didn't know existed.
fornia's statute retroactively abolished suits that target "in-       "I think the attitude now is, We were deceived. The Amer-
herently unsafe" products, and listed butter, sugar, castor oil,   ican public was deceived, because those rascals knew it was
alcohol and tobacco.                                               addicting and they been knowing it was addicting," said the
   If ever a substance deserved the designation "inherently un-    52-year-old Gauthier. The addiction claim has another major
safe," it is nicotine, the psychoactive ingredient in tobacco,     advantage. The suit doesn't ask for damages for lung cancer
and the casus belli for Castano. This poisonous alkaloid has       or heart disease or emphysema, so no link to them has to be
been studied since the late nineteenth century, when biolo-        proven. Anyone diagnosed as nicotine-dependent or who
gists used it to help define the modern concept of drug toler-     couldn't stop after being advised by a doctor to do so could
ance, a key criterion for judging addictiveness. Contemporary      sign on to Castano.
researchers have found that after just two hours without cig-         Gauthier's class action wi]l try to make a jury believe a
arettes, the brain wave activity of a heavy smoker is so badly     corporate crime story: that for at least thirty years the tobacco
disrupted that the brain's ability to process information vir-     companies knew nicotine was addictive, learned precisely how
tually shuts down. Such disruption is associated with extreme-     to control the dose and hid what they knew from the Ameri-
ly addictive drugs.                                                can people. Making the charge stick means proving a con-
   The cigarette companies learned early that nicotine was ad-     spiracy to bring off the deadliest, longest-running fraud in
dictive and left an extensive trail of internal memos that prove   business history.
they knew. The American Tobacco Company did more than                 Most of the lawyers on Gauthier's team were seasoned in
ninety studies on the pharmacological and other effects of         successful struggles with manufacturers of asbestos, breast
nicotine, beginning in 1940. By the sixties and seventies, to-     implants, the Dalkon shield and other hazardous products.
bacco industry scientists were "way ahead of the outside" in       Gauthier himself chaired the plaintiffs' committee in the
their understanding of nicotine, according to Jack Henning-        DuPont Plaza Hotel fire case in San Juan in the late eighties-
field, a researcher at the National Institute on Drug Abuse.       a $250 million award-and the MGM Grand Hotel blaze in
In 1977, Philip Morris wanted its researchers to explore such      Las Vegas. A global suit on breast implants netted $4.3 bil-
questions as, "Given a fixed quantity of nicotine in the to-       lion. But as the jackpots got bigger, so did the plaintiffs' com-
bacco, what factors in cigarette design determine its availabil-   mittees, which led to vicious infighting. Determined not to
ity ... to the smoker?" "Does the smoker seek spike effects        let this happen in Castano, Gauthier handpicked the attor-
or bloodstream constancy?" and "What are the fundamental           neys. After decades of futility, the top rank of the country's
differences between the habit oftobacco smoking and heroin         personal-injury lawyers would be taking on the cigarette man-
injection?" The New York Times has published excerpts from         ufacturers for the first time.
Brown & Williamson Tobacco Corporation internal docu-                 One Castano lawyer calls Gauthier "Ike" for marshaling
ments describing decades of clandestine research that con-         this unprecedented invasion force, whose member firms are
August 28/September4, 1995                                   The Nation.                                                               195

involved in almost every important tobacco lawsuit. If Gau-            health care costs of indigent smokers. Three other states filed
thier is Eisenhower, then Ronald Motley is Patton, a charis-           similar actions, and Motley is trial counsel for two of them.
matic, acid-tongued, cowboy boot-wearing legal warrior. He
is the man some say the industry should fear most in a court-                o understand what the anti-smoking movement is up
room and the leading candidate to try Castano. The son of
a South Carolina gas station owner, the 50-year-old Motley
                                                                       T     against in court, you have to see a cigarette lawsuit in ac-
                                                                        tion. At a Castano hearing a year ago, no fewer than thirty
is arguably the best plaintiff's trial lawyer in the country--'-cer-    industry lawyers were dispatched to New Orleans to press for
tainly one of the richest, having won billions of dollars in as-        immediate dismissal. In the legal trade it's called the "wall
bestos awards since the mid-seventies. But friends say money           of flesh."
has little to do with his interest in tobacco litigation.                  Despite the fact that four months earlier the heads of the
    "My mother died of emphysema from smoking, and after               tobacco companies swore to Congress that they believe nico-
that I swore I'd get 'em," said Motley. "Now you asked why              tine is not addictive, one of the lawyers began arguing that
I'm in this? That's why. And I'll tell you something else,"             the case should be thrown out because the plaintiffs knew for
he said, a vein in his neck bulging as he warmed up in his              years they were nicotine addicts and should have sued earlier.
New Orleans hotel room. "You can't find a family in this                "The Surgeon General told the nation in 1988 that nicotine
country they haven't touched. That's why we're going to win             was the substance in tobacco that caused addiction and that
this thing."                                                            tobacco addiction was similar to hard drugs such as cocaine
    He smiled. "Eventually."                                            and heroin," boomed the lawyer. "It was on the cover of
    While Gauthier unleashed the class-action approach on to-           Time," he said. "Couldn't be clearer than that, Judge."
bacco suits, Motley put his energy into finding a more sympa-              The key to any tobacco suit is documents, the DNA evidence
thetic plaintiff than a smoker who'd puffed himself to death.           of product liability cases. The critical turning points in asbestos
His search led him to Burl Butler, who.never smoked a ciga-            litigation came when corporate reports were unearthed that
rette but apparently died from inhaling the smoke of his cus-           unequivocally demonstrated the industry knew the hazards of
tomers. Motley reasons that a jury may find it easier to bring         its product. In another cigarette case in New Jersey, Motley
a verdict against the industry if all the victim did was breathe       is trying to unlock 1,500 explosive documents now under court
the air. He thinks another way around the blarne-the-smoker             seal in the hope that they may show the tobacco companies
tactic is a Mississippi state suit he helped design that would         concealed potentially unfavorable health studies by bypassing
force the tobacco companies to reimburse the state for the              the Council for Tobacco Research, their supposedly independ-
196                                                       The Nation.                                AUgl

ent scientific funding organ. Instead, dangerous research was         journals and attend tobacco-spon~~~ ~    ..            _
supervised directly as "special projects" by the companies and        the Occupational S,afety and Health Administration began
their law firms to cloak the work in attorney-client privilege        hearings this past fall on a proposed rule that would ban
and prevent its discovery in a lawsuit.                               smoking in about 6 million workplaces, the well-oiled indus-
   The manipulation of science is a key issue in Castano and          try machine simply buried the agency under testimony-
other suits because schemes like "special projects" are power-      . R.J. Reynolds alone was responsible for more than 15,000
ful evidence of fraud, and fraud can trigger a crushing series        pages of submissions.
of punitive damage awards. For that reason, the cigarette com- .         Working pro bono, the Castano attorneys represented health
panies have fought tenaciously to keep the special projects           and labor groups and cross-examined tobacco-funded wit-
documents sealed. Motley is now challenging the privilege             nesses, which gave them a sneak preview of experts who might
under a crime/fraud exception.                                        later testify for the cigarette makers. One target was Duke Uni-
   The fear of product liability suits evidently led Brown &          versity economist W. Kip Viscusi, who expounded on his theo-
Williamson, makers of Kool, Viceroy and other brands, to              ry that cigarette smokers who die prematurely save society
create a comprehensive coding system to organize sensitive            money in pension and nursing-home costs. Another witness
documents. A fifty-four-page master summary of the system             conceded his testimony had been edited by cigarette company
prepared in 1989 offers an intriguing glimpse into how the            lawyers. R.J. Reynolds toxicologist Chris Coggins had to ex-
company rated its own vulnerabilities, with the most delicate         plain why his company spent millions of dollars developing
material being marked with a "I." The summary includes sub-           the smokeless Premier cigarette if the industry is confident
ject headings such as "Manipulation of Research/Data" and             tobacco smoke is innocuous. Unhappy with the way things
"Document Retention/Destruction." Another was titled "Sig-            were going, Philip Morris withdrew in November.
nificance-Target Markets" and read: "Unless there is a slur              Given a choice, the tobacco lawyers would rather talk about
or an otherwise significant issue contained in a document or
                                                                      nicotine and addictiveness than what everyone calls "the youth
discussing a minority target market, apply normal signifi-
                                                                      issue," the most emotionally charged segment of struggle over
cance to these documents.... If the document targets per-
                                                                      tobacco. Some lawyers believe that Castano is most likely to
sons who are 18 to 21, i.e., 18 through 20, assign a significance
                                                                      win if it can convince a jury that the industry targets children
of '2.' Assign a significance of '1' if the document targets
                                                                      to replace the over 400,000 smokers who die of cigarette-
persons under 18." Documents dealing with "lawyer involve-
                                                                      related disease each year and the thousands of others who
ment with scientists" also got a rating of 1.
                                                                      quit. There's plenty of anecdotal evidence to support the
   In the end, many things were hauled under the mantle of
                                                                      charge. Ad campaigns like that featuring Joe Camel have dra-
attorney-client privilege, including industry lists of cigarette
                                                                      matically boosted the size of the illicit youth market, to the
additives. One company list of more than 200 ingredients,
                                                                      point where a study released last month found that almost
stamped "Attorney Work Product" on every page, shows
flavorings and their code names. Coca flavor was BINNET;              one of every five eighth graders smokes, up 30 percent in three
pulverized deer tongue was CARPAS; propylene glycol was               years. Another survey showed that 25 percent of the high
GRELANTER. All three were marked with an asterisk for "po-
                                                                      school seniors who tried cigarettes had done so by the sixth
tentially hazardous."                                                 grade. In 1977, a Canadian cigarette maker studied why chil-
   It was tobacco's manipulation of science that brought the          dren begin smoking: "Ads for teenagers must be denoted by
Castano lawyers to Washii:lgton, D.C., last year. In order to         lack of artificiality, and a sense of honesty. Attempts at the
maintain its position that nicotine is not addictive and that         use of celebrities like Farrah Fawcett or O.J. Simpson do not
no "causal link" has been shown between cigarette smoke and           really click. If freedom from pressure and authority can be
disease, the industry has funded a stable of scientists who cite      communicated, so much the better."
one another, gain credence through publication in scholarly              All four of Castano's class representatives started smok-
                                                                      ing as teens, as did Gauthier's three daughters, a defiance by
                                                                      otherwise obedient children that puzzled and infuriated him.
                                                                      "We're going to show the American people they went after
                                                                      children knOWing that it's going to addict them, knowing full
                                                                      well it's going to cause cancer, emphysema and cardiovascu-
                                                                      lar disease," said Gauthier. "They choose to kill our kids. I
                                                                      think that's a strong argument."
        - BULLETINS FOR POLITICAL ACTION -                               With tort reform brewing, the tobacco industry may yet
                                                                      dodge even these harpoons. However, disgust at the world's
             This month's Action Alert:
                                                                      most profitable and peculiar product is growing. As two ar-
                UNIUNBUSTINO                                          mies of lawyers gird for battle in New Orleans, the issue of
              IN LATIN AMERICA                                        youth targeting is a mystery weapon that could decide the
                                                                      outcome. The difference between a sinister ad campaign and
 For a copy. send $2 to NationAlert, 72 Fifth Avenue, New York,       making the youth charge stick in court is considerable. But
 NY 10011. For more information, call (212) 242-8400, x207.           somewhere in the dark world of cigarette company memos,
                                                                      there just could be a folder of proof.                        0

To top