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I’d Walk a Mile for a Fee

In parts of the country where labor unions are weak, especially the Deep South, the organized left consists mainly of personal-injury lawyers. They obtain, in a few dramatic cases, the economic redistribution that is out of reach by legislation. The leading personal-injury lawyers are rich, confident, aggressive people who are big political contributors and therefore are in close consultation with Democratic politicians. They try wholeheartedly to influence the direction of government and often succeed. The form of the tobacco-control legislation now before Congress makes sense only if the bill is understood as a product of the power of trial lawyers.

The true father of the tobacco bill is not its author, Senator John McCain, but a lawyer in the Gulf Coast town of Pascagoula, Mississippi, named Dick Scruggs. Scruggs made a substantial fortune suing asbestos companies, on behalf first of workers with lung disease and then of the state of Mississippi’s program to remove asbestos from public buildings. Plaintiffs’ lawyers generally charge their clients no fee up front but collect a big share of the damages if they win. Scruggs made $5 million from the state asbestos case alone. By the early Nineties, the time of the opening of Peter Pringle’s Cornered, he owned a Learjet, two mansions on the beach in Pascagoula, another house in Key West, and two yachts—a typical array of possessions for a leading member of the plaintiffs’ bar. He is an active Republican, but in 1996 he contributed $40,000 to national Democratic Party campaign organizations, and his law firm contributed another $20,000. He has no trouble getting the attention of officials in either party.

It is exemplary of the clubby relationship between trial lawyers and politicians that Scruggs is close to Mississippi’s ambitious young attorney general, Michael Moore—their friendship dates back to their student days at Ole Miss. Moore hired Scruggs to try the state’s asbestos case and was pleased with the result. In 1993, another Mississippi trial lawyer called Moore to suggest that the state sue the tobacco companies to recover the Medicaid expenses associated with smoking. Moore put him in touch with Scruggs, who by now was well acquainted with the ins and outs of lung disease litigation. By the end of the year Scruggs was working on a Mississippi lawsuit against the tobacco industry. S. 1414, the Universal Tobacco Settlement Act of 1998, is a lineal descendant of this suit.

The first scientific experiment to demonstrate that tar from cigarette smoke causes cancer in mice was conducted by Ernst Wynder of Memorial Sloan-Kettering Cancer Center in 1953. During the forty years between Wynder’s study and the Mississippi lawsuit, cigarette manufacturers had an amazingly successful run in the courts. As Pringle says: “The figures spoke for themselves. Eight hundred and thirteen claims filed against the industry, twenty-three tried in court, two lost, both overturned on appeal. Not a penny paid in damages.” The industry’s strategy was a tobacco version of the Colin Powell doctrine in military affairs: clear mission, overwhelming force. The mission was to demonstrate that smokers know they are taking a health risk, so if they get sick it’s their fault, not the tobacco companies’. The force included multiple law firms on every case, extensive research into the backgrounds of potential jury members, the hiring of local eminences as “consultants” to the defense, and the filing of so many requests and motions that the understaffed plaintiff’s side couldn’t possibly keep up. The best plaintiffs’ lawyers are individually much richer than their counterparts on the defense, but they don’t run large law firms and so can’t match a full-dress corporate defense effort.

The situation changed in the early 1990s for several reasons. The idea of a state rather than an individual suing the tobacco industry was a breakthrough. It offered a way around all the case law the companies had built up on the premise that smoking is a matter of individual choice. Juries and judges have consistently been persuaded by tobacco-company lawyers that the principle of caveat emptor applies to cigarettes. But Mississippi hadn’t decided to smoke, and smoking was nonetheless costing it a lot of money in health benefits to people with smoking-induced lung disease. Also, the plaintiffs’ bar was coming off a fabulous run of successful cases: the hotel fires at the MGM Grand in Las Vegas and the Dupont Plaza in San Juan, the asbestos litigation, the Bhopal disaster, the Dalkon Shield, and silicon breast implants, among others. These victories generated not only a certain boldness, but also a pool of capital. A lawyer in New Orleans named Wendell Gauthier performed the considerable diplomatic feat of talking sixty strutting trial lawyers into each putting $100,000 a year into a fund to pursue tobacco litigation. Gauthier’s alliance gave the plaintiffs’ side the wherewithal to operate in the labor-intensive fashion of a big corporate law firm, which leveled the playing field between the trial lawyers and the tobacco companies considerably.

Then, during one week in February 1994, both the commissioner of the Food and Drug Administration, David Kessler, and an ABC News program called Day One accused the tobacco companies of deliberately manipulating the nicotine levels of cigarettes. Logically, this should be a far less important issue than the inherent dangerousness of smoking, which nobody disputes. If cigarettes contained only naturally occurring levels of nicotine, they still would be deadly; the Centers for Disease Control estimates that they kill 420,000 Americans a year. But the issue of nicotine manipulation was tactically important. It gave the FDA a rationale for declaring cigarettes to be a drug and seeking the authority to regulate their production and sale. Gauthier’s group used addiction as the basis for an enormous national class-action lawsuit against the tobacco companies that, like Scruggs’s Medicaid suit on behalf of the state of Mississippi, was supposed to get around the tobacco companies’ legally crippling argument that smoking is voluntary. As Benjamin Weiser, writing recently on the anti-tobacco legal strategy in the Washington Post Magazine, put it, “Addiction was a risk that the industry had not warned about. If the industry secretly maintained nicotine at addictive levels, smoking was no longer a matter of personal choice; the industry was seeing to it that smokers could not stop.”1

Oddly, although the dangerousness of cigarettes themselves had never turned the public against the tobacco industry, the idea of nicotine manipulation (along with the idea that some tobacco advertising is aimed at teenagers) somehow did. As Pringle points out, the tobacco companies had become politically more vulnerable anyway, both because the number of tobacco-producing states had shrunk to three (Virginia, North Carolina, and Kentucky) and because the companies in the 1990s foolishly dropped their practice of contributing equally to politicians of both parties and became an essentially Republican lobbying group. In the spring of 1994 Representative Henry Waxman of California, a Democrat, created the enduring picture of tobacco executives as bad guys by holding a hearing at which the chief executives of the seven major cigarette manufacturers stood up, raised their right hands, swore to tell the truth, and then said one by one that they did not believe nicotine is addictive. By 1995 President Clinton’s Republican political Svengali, Dick Morris, was urging him to attack the tobacco companies because it would be popular to do so.

Once tobacco-company perfidy, rather than the inherent deadliness of cigarettes, became the master narrative, evidence of the companies’ misdeeds was required. Therefore the anti-tobacco forces needed internal documents demonstrating the industry’s awareness that nicotine is a drug. The first important document cache they obtained was provided by Merrell Williams, a paralegal for a Louisville law firm that represented Brown & Williamson, who had surreptitiously made copies of tobacco-industry research materials and brought them home. The most damning of Williams’s finds was a memo written in 1963 by Brown & Williamson’s general counsel, which said, “We are in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.” In the winter of 1994 Williams came to the attention of Dick Scruggs, who immediately realized what a valuable asset he was. Scruggs relocated Williams to Pascagoula, gave him a job, bought him a car and a boat, and took possession of his boxes of pilfered documents. Soon the contents of the documents were appearing in the press, notably in The New York Times, and on the Internet.

Thanks to the efforts of Williams and other leakers, including Jeffrey Wigand, a former head of research at Brown & Williamson, and Hatsy Heep, the spurned lover of a researcher at Philip Morris, there were soon enough documents to create a coherent picture of the tobacco companies’ behavior. Pringle strikes an appealing balance between playing up the raffishness of the leakers and explaining clearly what the documents they made public actually say. Beginning in the mid-Fifties, the tobacco companies had adopted a posture of intransigent resistance to criticisms of smoking. Some people within the companies, such as the Brown & Williamson executive who wrote the memo quoted above, wanted the industry to be accommodationist, and to work to develop a safer cigarette. They lost. (In fairness to the companies, safer cigarettes are available and most smokers don’t like them. As Pringle observes, even people who buy reduced tar and nicotine cigarettes often cover the holes that have been put in the filter to dilute the smoke, thus obviating the relative safety of the cigarette in order to get a richer dose of smoke.)

The tobacco companies have sponsored and monitored research on smoking and health for decades, but the guiding principle has been legal defense, not the pursuit of scientific truth. The year after the Ernst Wynder study on smoking and cancer, the companies set up a Tobacco Industry Research Committee. Its scientific director was a strange character named Clarence Little, a biologist who had been a rising young star in university administration until he was forced out as president of the University of Michigan for making eugenicist speeches. In 1929 he opened an independent cancer lab in Maine, which over the years sank into penury. When he attracted the patronage of the tobacco industry, the implicit bargain was this: Little would get a grand title and funds to keep his lab going in exchange for dropping his previous view that smoking causes cancer. The Tobacco Industry Research Committee gave money only to studies, by Little and others, that would claim to disprove the danger of smoking. Researchers who came to inconvenient conclusions, Pringle convincingly demonstrates, had their grants cut off.

When Jeffrey Wigand was head of research at Brown & Williamson, matters had proceeded to the point where all scientific material would go first to company lawyers for vetting, and then (if it was deemed safe from a legal point of view) to him. Anything that might look damaging if made public in the course of a lawsuit would be shipped overseas, out of subpoena range. Inside the tobacco companies, words like “cancer” and “addiction” were banned even from interoffice memos, lest they wind up bolstering a smoker’s lawsuit.

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    December 8, 1996.

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