Authors: Richard Kluger
In truth, she read and understood the cautionary articles and grew concerned as her hacking cough persisted. “I was saying novenas I was so scared sometimes that I was getting sick,” she said at her deposition, “and I used to make all kinds of promises to God if he didn’t let me have cancer that I wouldn’t do this and I wouldn’t do that. … But I never kept the promise, and that’s terrible … .” Her denial made everything simpler. “I didn’t want to believe there was a risk. You’ve got to remember—I was addicted. I smoked. I smoked a
lot … . You just don’t stop smoking like that. It’s very difficult.” She told the drug abuse expert whom Marc Edell sent to question her, “I didn’t think about quitting because I didn’t think I could bear it.”
By attributing her smoking to an addiction, Rose had convinced herself she was the victim of a pathological condition. But medical science stopped short of characterizing drug dependency as a diseased state; there was no readily determinable threshold beyond which one could be pronounced as addicted. The 1982 statement to Congress by the National Institute on Drug Abuse (NIDA) had listed as the four most common characteristics of addiction a psychoactive effect on the user’s brain and body chemistry, compulsive use despite knowledge of the possible consequences, physical and psychological symptoms of distress during abrupt withdrawal, and a strong tendency to relapse. But the layman’s understanding of the word sufficed: to the public, “addiction” meant an activity that once begun was very difficult to stop.
Nobody, though, in or out of science said addictions were impossible to break. In the case of cigarettes, it was estimated that one-third of users tried to quit each year, and probably no more than one-fifth of those who tried succeeded for good. But that amounted to somewhere between 30 and 40 million Americans who had stopped smoking in the span between the issuing of the 1964 Surgeon General’s report and Marc Edell’s first meeting with Rose Cipollone nearly two decades later. By then a whole literature of smoking cessation had grown up, testifying that tobacco dependency was not a disease but a form of self-destructive behavior that could be remedied. Jane Brody of
The New York Times
summed up the consensus in a February 23, 1977, article in her paper: “No matter how strong this habit [of smoking] or how frequently it is reinforced, anyone who wants to badly enough can break it.” “Wanting to,” not the knowledge that it was bad for you, was the key; the rest was largely a matter of technique. Many articles and books were written on how to break the mechanics of the habit, how to intrude on its rituals and substitute others, how to satisfy the oral craving that contributed to an average six-pound weight gain by quitters during their first year off cigarettes (frequent drinks of water, carrot sticks, dried prunes, and sugar-free hard candy being the most often recommendet replacements for nicotine).
Cigarette makers could thus justifiably argue that the charge of addiction was an excuse by the weak-willed, who based the fact that they
had
not quit smoking on the claim that they
could
not quit, as if they were in the unbreakable clutches of an iron monster, and therefore deserved forgiveness for, or at least understanding of, their behavior. By calling it addiction, in short, smokers were denying responsibility for their conduct. And how did this differ fundamentally from the alcoholic motorist who caused a fatal crash and then blamed it on the liquor manufacturer? Or the junkie who robbed, maimed, or killed in the process of feeding his habit and then claimed that he himself had been victimized
by the degraded social condition of his life? In the end, the tobacco industry held, no individual could blame societal forces, and certainly not the allurements of the marketplace, for the consequences of smoking when quitting was plainly possible. Rose Cipollone, moreover, was not merely asking to be excused for her smoking by attributing it to an addiction—she was going to court to ask reparations from those who had, she claimed, knowingly foisted it on her.
Rose’s luck ran out in 1981, when a routine chest X ray disclosed a three-centimeter lesion at the rear of the upper lobe of her right lung. A bronchoscopy with a flexible tube proved negative, but Rose returned soon for a thoracotomy, in which the lung is deflated, an incision is made between the ribs, and the chest spread open. This time the surgeon found the tumor by feeling it and removed a piece for biopsy; the tissue was judged malignant, though there was some dispute over whether the cancer was an atypical carcinoid, a rare form of the disease, or the more common, fast-growing small-cell type. The affected lobe was removed in August. For eight months Rose had no further symptoms, but then she began wheezing and coughing up bloody sputum. Diagnosis showed that her middle and lower right lobes were now involved as well—the surgery had not got all the cancer. In a second operation they took out, with the rest of her lung, lymph nodes and major pulmonary arteries and began a course of chemotherapy to minimize the chances of recurrence. The chemo treatment induced an overwhelming nausea, and though Rose, unable to eat for days sometimes, tried hard to endure it—“she wanted to live so bad,” Tony later said—she called off the regimen.
She remained clinically free of disease for fifteen months, until August 1983, when, soon after having met Marc Edell, she began complaining of pain in her abdomen and legs. High-resolution X rays detected a ten-centimeter mass behind the liver, just above the kidneys; when removed, the malignancy was diagnosed as metastasized lung cancer. Now chemotherapy was mandatory. Rose suffered no less wrenching nausea than earlier, as well as chronic intestinal upset, hair loss, and an esophagal spasm so severe she feared that she was having a heart attack. Frightened and anxious, she underwent hypnosis to still anticipatory fears of the chemo treatments, which she took from September through June 1984. At the end of February, near the close of the four-day deposition by tobacco lawyers that had utterly drained what little strength remained in her, she had begun to display symptoms of metastasis in her brain; she had trouble speaking, and bright light bothered her. Edell, finally understanding how far gone his client was, did not have the heart to depose her himself on tape, to be played eventually in the courtroom. Soon Rose’s enlarged liver was found to be riddled with multiple cancers; in September, radiographic studies of her head showed similar effects. “She had tubes all over her, drainage, everything—it was a mess,” Tony recalled. She survived on
morphine now, screaming for it an hour and a half after the last shot. Tony, who rarely left her bedside, learned how to administer the painkiller so that he could take Rose home for a while. But she could not remain there.
Tony got to her room by five in the morning on October 21, 1984, and the doctor said she did not have long. Rose and Tony talked until the priest came a little after nine. The doctor made a final visit, and then Tony took Rose in his arms, and she said, “Tony, I love you,” and he said, “I love you, too,” and Rose said, “I know,” and tears fell from her eyes until she closed them, forever. Tony sent the doctor away, screamed and cried, and when the doctor later proposed an autopsy, Tony said no, “because too many times she had been stabbed and cut and everything. I [didn’t] want nobody to touch her. … We had a beautiful relation.”
Several times during the later stages of her illness, Rose had told her young attorney that she wanted out of the liability suit he had filed in her behalf, but in the end she told Tony she wanted the case to go forward after she was gone. More than three years would pass before she got her posthumous day in court.
II
THREE
days after Rose Cipollone died, her attorney arrived at the Park Avenue offices of Philip Morris to depose the newly crowned industry leader’s retired chairman—Joseph Cullman. Half Cullman’s age and looking younger still despite his neat mustache, Marc Edell was ushered into a very large conference room and shown to a chair at one end of a very long table; the senior statesman of the tobacco business sat at the other. Deployed between them was a squadron of company lawyers, their sheer number enough to intimidate a fainthearted adversary. Edell, unaccompanied, scanned the scene and decided that he had better let his massed adversaries know he was no pushover. He moved his chair the length of that immense table until he was sitting directly across from Cullman, with whom he proceeded to have “a nice, friendly chat,” as the young attorney recalled it, before interrogating him.
While Philip Morris appeared to have the least exposure of the three defendants in
Cipollone v. Liggett Group, Philip Morris, and Loews
(the hotel and insurance conglomerate that had purchased Lorillard in 1969) since Rose Cipollone had smoked its brands for only six years, all of them after the warning label was required by law, its allies in the case were by now relatively small potatoes in the industry, so no one complained about PM’s assumption of the role as
primus inter pares
. The captaincy of their joint effort was assigned to Murray H. Bring, a partner from Arnold & Porter, Philip Morris’s formidable Washington counselors. A 1956 Phi Beta Kappa graduate of the University of Southern California, Bring served as editor in chief of the
New
York University Law Review
and a law clerk for two years to Earl Warren, Chief Justice of the United States, before joining the State Department as a junior officer and then the Justice Department, where he rose to director of policy planning in the antitrust division. A partner at Arnold & Porter since 1967, he excelled as a strategic thinker adept at orchestrating legal talent in complex cases, defining the terrain, and melding the sometimes contentious views of his colleagues. “He’s simply a brilliant lawyer,” commented Robert Pitofsky, of counsel to Arnold & Porter, and Georgetown law dean before chairing the FTC. “He’s the most careful, thorough lawyer I’ve ever run into—for him everything is in the details.” Bring was also a lover of theater and opera, a collector of modern art, highly active in civil liberties, the Legal Aid Society, and other professional causes, and a onetime heavy smoker who had tailed off in the years before he began to represent Philip Morris and took up the habit anew. There was no hint of hesitancy in the vigor with which he coordinated the efforts of the two dozen or so lawyers, with all the supporting paralegal, clerical, and expert advisory personnel they needed, to deny the heirs of Rose Cipollone compensation for the suffering and shortened life that her love affair with the cigarette had cost her.
Bring’s defense strategy was not particularly innovative; there were just many more operatives than usual to carry it out. In essence, the defendants’ position was that (1) smoking had not been absolutely proven as the cause of any disease, including Rose Cipollone’s lung cancer, and (2) even if there was a strong statistical association between them, she had a rare kind of lung cancer not often found in smokers. But (3) even if her smoking had caused her premature death, by her own admission she had long known all about the health charges against cigarettes, had been warned repeatedly of the risks by various relatives starting with her mother, and had never made a serious effort to stop smoking even after the government-mandated warning label was put on each pack and in every cigarette ad. Therefore, (4) what reason was there to believe that any warnings that the manufacturers of her brands might have given before Congress had required them would have in any way deterred her from smoking? (5) Congress, moreover, in fashioning the warning label and defining it as adequate to meet the public-health concerns of the nation, had implicitly intended to block liability suits under state common law; damages awarded by juries sitting in such cases were tantamount to state regulation. To allow state judges and juries to determine the adequacy of the congressionally mandated warning and the propriety of the industry’s advertising and promotion efforts as they related to health questions was to promote precisely the “diverse, nonuniform, and conflicting” array of warnings nationwide that Congress had explicitly intended to prevent from hobbling the industry’s ability to conduct its business. The Supreme Court had on several occasions struck down the award of damages by state courts which served to frustrate the legislative
purposes of Congress. As to the application of strict-liability standards favored by the New Jersey courts, the three defendants asserted that (6) cigarettes readily passed the risk/utility test for unfixably dangerous products on the grounds that they provided succor for millions around the world as their pacifier of choice, yielded a rich harvest of excise and income taxes at the federal, state, and even local levels, and contributed significantly to the American economy all the way from Tobacco Row to Madison Avenue.
The one obvious hole in this cluster of defenses was the question of how Rose Cipollone could be said to have made an informed decision to smoke, and thus to have assumed the full risk of her behavior, when her thinking was colored by the manufacturer’s longtime contention that the scientific case against the perils of smoking remained unproven. Why should she have understood for a certainty what the tobacco companies would not admit to be so—namely, that smoking killed a lot of the people who enjoyed it? It was a classic blame-the-victim defense by an industry that had spent billions of dollars in advertising, promotion, and written rebuttals to the Surgeon General in order to allay the anxieties of their customers and becloud the consensual scientific case that had convicted cigarettes as slow-motion killers. The heart of the industry’s defense could have been paraphrased, “Rose Cipollone knew the risks, even if we do not accept the medical community’s conclusions about them.” The cigarette makers insisted on having it both ways.
As the defendants’ lead counselor, Bring recognized this apparent contradiction in their argument but had little trouble finessing it. He had mastered the industry’s knack for selective citation of the evidence and used that aptitude with lawyerly precision. It had never been scientifically established that smoking was the cause of any human disease, Bring said, at once adding that “any honest scientist will admit that a statistical link doesn’t establish causation … .” This contention airily disregarded the linkage as massively elaborated by two decades of chemical and biological studies, clinical observations, and laboratory investigations since the original, and compelling, advisory report to the Surgeon General. But for the tobacco industry to concede anything beyond a statistical correlation between smoking and disease—the risk that Bring called “common knowledge”—would have been to chance being sued out of business.