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CONTENTS
Title Page
Copyright Notice
Dedication
Acknowledgments
Prologue: Dinner at Antoine’s
1. A Novel Observation
2. A Death in the Family
3. The Drama Teacher
4. The Perfect Pleasure
5. A Fool’s Mission
6. The Sweet Smell of Gain
7. Kings of Concealment
8. An Orgy of Buncombe
9. The Science Teacher
10. Voyage of Discovery
11. The Fordice Saga
12. The Ides of March
13. The Sorcerer’s Apprentice
14. The Man on the Pink Bicycle
15. Field of Dreams
Epilogue: An Illusion of Surrender
Notes
Selected Bibliography
Index
Also by Peter Pringle
Copyright
For Victoria,
and her generation
ACKNOWLEDGMENTS
IN THE SUMMER of 1994, when a handful of American journalists were being sued for possession of stolen company documents by the British tobacco giant Brown & Williamson, I was given access to these papers for my reports to The Independent in London. When, finally, the U.S. courts ruled the documents were in the public domain and the unprecedented legal assault on the tobacco industry began, I found myself in the middle of the battle, and this book was born.
Nathan Abse was my invaluable researcher, who began in 1995 cataloging and annotating the vast amount of material that had suddenly become available. His inside knowledge of the medical-science libraries, his dissection of dense scientific argument, and his sharp analyses were outstanding contributions to this work. His ability to travel long distances on next to nothing, and still fulfill his goals, became legendary. After the first year of the project, The Washington Post lured him away to be their National News Researcher, but he gave the book his support until the end. His reading of drafts was most helpful, and I am grateful for his work and his friendship.
My hope, as always, was to talk to both sides in the war. Alas, this was not possible. The tobacco industry retreated into its bunker; rejecting repeated attempts over three years, during which I also made a documentary for British television, to discuss the view from the corner in which the industry had become trapped.
The anti-tobacco lawyers were only too eager to tell their story, of course; propaganda is one of their key weapons. But, even so, I could not have completed my task without hundreds of hours of interviews with members of the plaintiffs’ bar; I shudder to think what the billable time would add up to, had it not been freely given.
In Mississippi, my thanks to Don Barrett, Dick Scruggs, Mike Moore, Charles Mikhail, Steve Bozeman, and Lee Young, and the staffs of the Barrett Law Offices in Lexington, the attorney general’s office in Jackson, and of the Scruggs law firm in Pascagoula. Charlene Bosarge was magnificently patient with the demands of my film crew, as was Sally Barrett, who should have been a star in the documentary. In Lexington, thanks also to Ella Horton, Earline Hart, and the staff of the Lexington Courthouse, who gave up part of their weekend, and to Tom and Jerry Ann Gant, who gave up their shop for an afternoon. Morton Mintz kindly lent me his valuable file on the Horton case.
In New Orleans, Wendell Gauthier was especially helpful and, for some reason, spared me from being a victim of his practical jokes. Presumably, my turn will come. John Coale was so friendly as Castano’s publicity chief I often forgot he was a lawyer. Elizabeth Cabraser always shared a special insight. Also in New Orleans, Suzy Foulds answered innumerable document questions, and Sherill Horndorff, Russ Herman, Calvin Fayard, Joseph Bruno, Walter Leger, Ken Carter, Danny Becnel, and Christine Cox went out of their way to help.
In Minneapolis, Roberta Walburn interrupted her own punishing schedule to answer a flow of queries about the Minnesota case, and Mike Ciresi made himself available on a trip to London. Attorney General Skip Humphrey took time to explain his position. David Phelps of the Minneapolis Star Tribune and David Shaffer of the St. Paul Pioneer Press provided background material.
In Charleston, South Carolina, Andy Berly probably now has more confidential documents on the British tobacco giant BAT Industries than the company has itself—at least in one place.
In Louisville, Kentucky, Jeff Wigand said whatever he was allowed to say without breaching his confidentiality agreement, and Fox DeMoisey helped disentangle the web the industry had spun around its troublesome dissenter, Merrell Williams. And Williams himself spoke at length of his curious odyssey.
In Washington, D.C., David Kessler gave two long interviews in the midst of his very personal battle with the industry, and FDA officials Jim O’Hara, Jeff Nesbitt, and Mitch Zeller filled in the blanks. Phil Barnett and Ripley Forbes (before they moved on) and Alison Waldman were extremely helpful in Congressman Henry Waxman’s office.
Thanks to Susan Sherman at the Labor Department for help during the OSHA hearings; also to Sherri Watson of the American Lung Association and to Rhett and Suzanne Klok for their assistance with OSHA transcripts. Matt Myers gave me a long historical overview of the confrontation between the health groups and the industry.
At the Advocacy Institute, Karen Lewis opened the institute’s files. Also in Washington, a special thanks to Claudia MacLachlan for guiding me to a variety of legal sources. Muriel Sanford at the University of Maine Library, Special Collections, and Douglas Macbeth at the Jackson Library were guides to the Clarence Cook Little papers. Karen Miller offered her excellent dissertation study on Hill & Knowlton.
At three Mealey Tobacco Conferences, Ron Motley, Andy Berly, Charles Mikhail, Susan Niall, Hugh McNeely, and Madelyn Chaber helped simplify the complexities of tort law in unusually palatable ways. Separately, so did Don Garner and Carl Bogus. Clifford Douglas invariably had new information. And it was always a pleasure to bump into Gary Black, of Sanford C. Bernstein & Co., and check the latest price of Philip Morris stock. Sam Crawford guided me on Wall Street investment procedures.
In Boston, Dick Daynard, Mark Gottlieb, and the staff of the Tobacco Products Liability Project invited me to their own invaluable conferences and gave me access to their files. At Harvard Law School, my thanks to Laurence Tribe and also to Jon Hanson, who put on the most useful post–June 20 settlement conference. Tom Sobol was very helpful on company law.
In Jacksonville, Florida, Woody Wilner and Ginny Steiger explained the intricacies of their guerrilla tactics. In San Francisco, Stan Glantz and Chris Patti documented the industry’s assault on the University of California at San Francisco.
The staff at the Centers for Disease Control provided many reports. The library staffs of the National Institutes of Health, the Library of Congress, The Times-Picayune, Minneapolis Star Tribune, Louisville Courier-Journal, and the National Formulary were most helpful, as were, especially, Edward Abse, Bryson Clevenger, Elizabeth Crocker, and Sajjad Yusuf at the Alderman Library in Charlottesville, and George Griffenhagen at the American Pharmaceutical Association.
In London, Martyn Day and Martin Jervis provided insights into the British civil action, and in Oxford, Sir Richard Doll recalled the strange beginnings of the scientific understanding of the harm smoking can do.
A few weeks before he died of smoking-related cancer, Victor Crawford, a former industry lobbyist in Maryland, told me how tobacco lobbyists work at the state level.
Julian Norridge, the producer of my television documentary, gave helpful advice for the book, as well.
For their hospitality, I am indebted to John and Barbara Pringle, Curtis Wilkie, John and Mary Acton, Alexander and Susanna Chancellor, and Philip and Ann Jacobson.
My agent, Robert Ducas, persevered when publishers told him either that they did not have the resources to take on the tobacco industry or that the Third Wave litigation would come to nothing.
My editor, Marian Wood, said neither of those things, and it was a pleasure to work with her again. She was as inspiring and progressive as ever, despite her eccentric boycott of computers. My thanks also to Nancy Clements, Kenn Russell, and Chuck Thompson for their professional calm during the accelerated production schedule.
My family put up with an apartment stuffed with documents for longer than was fair. Eleanor Randolph, as always, lent unwavering support throughout the project and read the first draft, inserting her magical touches. Whatever mistakes my small band of helpers missed are, of course, my own.
New York
November 19, 1997
PROLOGUE
DINNER AT ANTOINE’S
BEFORE HE LEFT his native Marseilles in 1840 for the steamy New World on the mouth of Mississippi, Antoine Alciatore learned the secrets of such rich, buttery delights as pommes de terre soufflées from the great French chef Collinet. Armed with this knowledge, he opened a small pension on the Rue St. Louis in the French Quarter of New Orleans, which over the years became one of the South’s most famous restaurants. A lush, extravagant place, run for the city’s finest, richest, and most notorious citizens, the menu changed to suit the era and the clientele. At the turn of the century, when there was a shortage of snails from Europe, Antoine’s son, Jules, introduced oysters Rockefeller; sometime later there appeared a new dessert called omelette Alaska Antoine, or baked Alaska. This wobbly mass of meringue, pound cake, and ice cream can be created in monstrous proportions, if the occasion warrants, up to two feet long by one foot wide—all served on a gleaming silver platter. Such an occasion occurred shortly before Christmas in 1994 when the tobacco lawyers came to dinner.
It was December 13, and Antoine’s large open dining area was bulging with pre–Christmas party revelers. The private President’s Room at the back had been booked by a local lawyer of Cajun descent named Wendell Gauthier, known to his friends as “the Goat.” His list of some fifty guests included many of the most famous and feared members of the plaintiffs’ bar, that despised group of personal injury lawyers who make their vast fortunes off human catastrophe. Gauthier’s list included “the King of Torts” (Melvin Belli from San Francisco); Stanley Chesley, “the Master of Disaster,” from Cincinnati; John “Bhopal” Coale of Washington, D.C.; Russ “the Girth” Herman of Louisiana; and “the Asbestos Avenger” (Ron Motley of Charleston, South Carolina).
Over cocktails in the President’s Room the question was who from Gauthier’s honors list of legal warriors was actually going to turn up.
Stanley never comes to dinners, they had said of Chesley. He’s far too grand. He makes contributions to the Democratic Party, and he’s always talking about his latest visit to the White House. Melvin Belli couldn’t come. At the age of eighty-seven, he was too frail. Pity, they sighed. Belli had the big name, the flair, the memory. The irrepressible Ron Motley, who could sniff out a corporation causing harm to the citizenry from half a continent away, was coming in his private jet, but he would be late. He was busy arranging a party for his fiancée on his yacht in Florida.
“Who cares about them?” muttered “Bhopal” Coale, sipping his Diet Coke. “All of them basically hate each other.”
Some of them hated him, too. Or they used to. Russ Herman had once called Coale a “cesspool.” In print.
“I’m not a cesspool; I’m a pirate,” Coale said, recalling that he had once sailed an ancient British sloop from England to Spain and had been shipwrecked in the Bay of Biscay. Now, appropriately, he was in the home of the notorious French pirates, New Orleans.
“He’s not a real pirate, he’s a buccaneer like Jean Lafitte,” interrupted the robust Mr. Herman, whose jolly face would fit well on the quarterdeck of an old galleon.
The real wonder of the evening was that any of these powerful lawyers had agreed to meet under one roof. Such is the fiercely competitive nature of their business that under normal circumstances they never hunt together. But there had never been such circumstances.
The greatest tort prize of all time—the treasures of Big Tobacco—suddenly seemed to be within the grasp of these risk capitalists of adversity. (One of the nicer descriptions of how they make a living.) For forty years, the tobacco companies had repelled all claims for damages caused by cigarettes. A sad parade of smokers had filed into court, trying to extract compensation for their lung cancers and their heart disease, but one after another they had been beaten back by the industry’s powerful legal machines, leaving the plaintiffs’ lawyers shell-shocked and occasionally even broke. The wiser members of the bar had stayed away. Now, however, they smelled blood.
In Louisville, Kentucky, a $9-an-hour law clerk had brazenly lifted thousands of pages of confidential tobacco company documents and handed them over for use in court. In Washington, D.C., the Food and Drug Administration had launched an inquiry into the tobacco industry with the aim of regulating nicotine as a drug. The White House was in the hands of America’s first antismoking president. In New York, ABC News had aired a program charging the tobacco companies with “spiking” cigarettes with nicotine to keep smokers hooked. The network had been immediately served with a libel writ—for $10 billion, the largest in history.
These events had created a new antismoking era and set off an explosion of lawsuits that became known as the Third Wave of tobacco litigation. The first, from 1954 to 1973, came after the big lung cancer scare of the early ’50s, when laboratory research linking smoking to cancer in mice was first published. Sick smokers went to court, but proving their cancer was caused by cigarettes was much more difficult than their lawyers had imagined; the companies had little problem creating a doubt in the minds of the juries. In the Second Wave, from 1983 to 1992, the scientific evidence was more firmly established, but the industry still successfully beat back any claims for damages by persuading juries that a smoker chooses to smoke knowing the risks. By this time, the industry had built up the most sophisticated legal defenses of any U.S. commercial enterprise and wore down its opponents by outspending and outlasting them. A tobacco lawyer had once boasted, paraphrasing General Patton, that he won cases not by spending his company’s money, but by “making the other son-of-a-bitch spend all of his.” Even the most determined and wealthy members of the plaintiffs’ bar were unable to sustain the costs of bringing a case.
But in recent years, the plaintiffs’ bar had won a series of spectacular awards in cases involving the asbestos industry, silicone breast implants, and the makers of women’s contraceptives. The lawyers had accumulated a war chest and were prepared to put it to good public use, intending no less than to bring the tobacco industry to its knees and stop its pollution of the hearts and lungs of Americans. They also expected to take their cut, of course; 25 percent of billions of dollars, or so they hoped.
Wendell Gauthier, a multimillionaire member of the plaintiffs’ bar, was the first to file suit. He would eventually persuade sixty other members to pledge $100,000 a year each to launch the largest-ever class-action suit against the tobacco companies. It was open to tens of millions of American cigarette smokers addicted to nicotine. Under an unlikely flag of friendship and cooperation, Gauthier had invited his comrades to Antoine’s to mark the beginning of hostilities. The next morning they were due in court to argue the worth of the class action that would become known as the “Mother of All Lawsuits.”
“Yes, I think the moment has come,” observed the earnest Boston law professor Richard Daynard, fingering his graying beard and giving his latest forecast of when the
tobacco companies would be paying out money for their past misdeeds. He was a veteran antitobacco activist and had been made an honorary member of Gauthier’s group because of his encyclopedic knowledge of tobacco litigation and his legendary steel-trap mind. His dinner was free. In return, he could always be relied upon for a prediction of when the industry would collapse under the weight of lawsuits.
“How about the spring of 1996?”
“How about 2001?”
“How about the date of Motley’s next wedding?”
“Which one?”
“Fish or steak?” interrupted the waiters. No pigeonneaux royaux sauce paradis for this crowd. Not yet, anyway.
* * *
ON THE OTHER SIDE of the restaurant, by coincidence as it turned out, the Rex Room had been booked by a group of lawyers representing the tobacco companies. Wood-paneled and hung with portraits of the past kings of the Krewe of Rex of Mardi Gras, the room was an appropriate place for the blue bloods of the legal profession who had flown in for the court hearing: lawyers from Chadbourne & Parke of New York; Jones, Day of Cleveland; King & Spalding of Atlanta; and Shook, Hardy & Bacon of Kansas City, all old campaigners for the tobacco barons. In contrast to Gauthier’s guests, they sat restrained and somber at a long pine table. They were war weary.
The First and Second Waves of the campaign had been hard fought. 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 tobacco barons showed no sign of compromise in the face of the new enemy. They had retreated into their bunkers, predicting the furor would pass and accused Gauthier and his followers of jumping on a “publicity bandwagon” created by the media. Victor Schwartz, of the Washington, D.C., law firm of Crowell & Moring, which advises clients on tobacco litigation, said, “It’s déjà vu, except for very powerful attorneys whom I have great respect for.”
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