Authors: Richard Kluger
“Put yourself in our place back then,” Bring reflected after the
Cipollone
case had ended. Tobacco was a big, prospering industry, a part of American folklore and basic lifestyle, when there was a sudden burst of publicity highly critical of its chief product. The manufacturers’ first response, Bring said, was “to initiate research and to support independent investigators” to look into the charges. The skin-painting bioassays with mice were the only real substantiation for the view that cigarette smoke might be carcinogenic, but the dosages administered to the laboratory animals were “totally unrealistic” and many researchers
believed that almost any organic substance when burned and made into a condensate might cause comparable tumors in mice. Yet the industry adopted the skin-painting technique itself because “you don’t ignore the possibility” that its findings were applicable to the human smoking experience, “and so you continue to test and try to … modify your product” to reduce the tumors in test animals, “but that doesn’t mean you admit that causation has been proven—only that it might be true.” There was “unrest among the smoking public, and the industry felt it was possible” that tobacco tars were a cause of lung cancer, “and if there was such a possibility, we ought to reduce the tars,” a process that had evolved over the years and met with the public’s approval. But in so doing, “the industry wasn’t conceding that its product was the culprit—only that the charge could be true. … The industry is justified in saying that the link hasn’t been proven. But we don’t deny that the risk exists, nor have we said that smoking doesn’t cause lung cancer—we’ve never denied the statistical association. Anything short of the industry’s concession that the case has been proven is not considered news. … We’ve been operating in a constant state of siege.” Not a day had passed since 1955 when lawsuits were not pending against the industry, and its lawyers, highly conservative by nature, tended to urge their clients to concede as little as possible for fear that plaintiffs’ counsel “will twist anything you say or use it against you.”
This neatly evasive positioning failed to address one further plaintiffs claim for which the industry had no ready legal defenses. What if, instead of dealing in a forthright way with the public, as Bring contended they had done, the cigarette companies had striven ceaselessly, as Houston law professor White had suggested a decade before, to subvert the warnings by medical science and the U.S. government? What if, in order to confuse the public, the industry had nitpicked the findings of public-health investigators for minor imperfections while distorting the major—and undeniable—thrust of such studies? What if it had misrepresented the virtues of its products in seductive advertisements while failing to acknowledge the true severity of the risks? What if it had, through joint undertakings by its trade association and committees, conducted research it claimed sought answers to the health charges against it but in fact skirted the issue—or even terminated investigators who came uncomfortably close to evidence that incriminated smoking? What if the tobacco companies had knowingly suppressed important health information while continuing to protest that the case against them was unproven? What if what they were saying all along was at odds with what their own scientists believed to be the case—scientists who failed ever to offer a halfway plausible alternative explanation for the overwhelming body of corroborative evidence linking smoking and disease? Marc Edell set out to establish just such a case of conspiracy against the industry through the pretrial discovery process.
The task required, more than anything else, tireless pursuit. The industry
lawyers rigorously fought Edell before yielding up a single document, filing endless motions and objections while insisting that the plaintiffs requests amounted to harassment, invasion of privacy, and nothing more than a fishing expedition for anything that might appear remotely embarrassing to the tobacco merchants. The trick for Edell, beyond perseverance, was to avoid a pyrrhic victory in the form of a blizzard of paper of the sort that had nearly buried FTC investigators in the late ’Seventies after a similar court battle for documents. But Edell’s experience representing an asbestos company had taught him that corporations did save sensitive and potentially revealing documents if one knew where to look for them; his requests were thus not of an umbrella type but for the files of specific executives dealing with specified subjects. Defense lawyers succeeded in getting Edell’s requests, put before a magistrate hardly sympathetic to his case, narrowed to documents generated within the forty-two years that Rose had smoked and dealing only with the brands she smoked, the diseases she suffered, and corporate activities within the New York metropolitan area where she lived. Even so, that amounted to a great deal of terrain to probe. More than half a million documents were eventually produced for Edell’s examination; he ordered—and his firm had to pay for—copies of 100,000 of them.
“It was like having a great pile of candy to feast on,” Edell recounted. The industry files were produced on a rolling basis, not all at once, so the tiny plaintiffs team of Edell, a pair of associates, and a few paralegals could sift through them over several years while other pretrial skirmishes were fought out. The industry provided copies as far as possible removed from the original documents, because, as Edell noted, “the original has a texture that can be revealing—a front, a back, either with notations on it, or it may come in a manila folder where there are notes—it’s been handled.” Often he was given incomplete or illegible documents and had to press to obtain a copy that was whole and readable. He and his team had to travel down a lot of empty roads as they pored over their booty, but they acquired skills along the way that facilitated their quest. They became adept, for example, at finding and filling in gaps in correspondence, learning how to check for a letter from the files of Company A for which they had found a response from Company B—an advantage they enjoyed over the defendant companies who were reluctant to pool their files. There was nothing magical about the process; it was mostly a matter of ceaselessly pushing onward. “He’s like a bulldog,” plaintiffs paralegal Michele Brown said of Edell during the pretrial phase. “He never gives up—he’s so damned compulsive. He strives to be perfect at work and at play—in karate he had to be a black belt, a brown belt wasn’t enough. … ”
Edell’s adversaries, to quote one leading tobacco attorney, viewed him as “a very good, very ambitious young lawyer who saw the case as his avenue to a national reputation. He was so driven in his desire to be the first plaintiffs
lawyer to score a big hit against the tobacco industry that he’d put in almost any amount of work necessary to get the job done.”
Edell was vitally helped in the early pretrial stages by the rulings of the U.S. district court judge whom fate had dealt him to preside in
Cipollone
. H. (for Hadden) Lee Sarokin, a high-domed jurist with a fringe of remaining pale hair and horn-rimmed glasses, had brought with him to the federal bench in 1979 a nimble mind, a patient and gracious courtroom manner, and a supple, sometimes barbed pen. A Dartmouth graduate who had helped pay his way through Harvard Law School by playing the drums for bands in the Boston area—and a recreational drummer he remained afterward—Sarokin became a prominent New Jersey private practitioner whose clients included former college and professional basketball star Bill Bradley. When Democrat Bradley made his bid in 1978 for the U.S. Senate, Sarokin served as finance chairman of the campaign; Bradley’s triumph was followed within the year by Sarokin’s nomination as a federal judge. Critics found him an overly liberal and opinionated jurist; admirers saw in him a staunch defender of civil rights and liberties and champion of social justice. He drew attention by holding that the Kiwanis International could not terminate a local chapter for admitting women in a state that banned sex discrimination by statute and won still more fame for freeing the once prominent boxer Rubin “Hurricane” Carter, after nineteen years in jail on a triple-murder conviction, following disclosures that the prosecution had withheld material evidence and that the trial process had been racially poisoned.
The tobacco industry lawyers felt Sarokin’s sting in July 1985 when, after he had ruled a number of times to open up the discovery process beyond the dictates of the magistrate assigned to oversee it, he approved of Edell’s use of the documents in seven other liability cases he was by then handling for smoking claimants as well as of his sharing them with other litigators and making them public. Sarokin wrote that while he was passing no judgment as to whether the documents in question—Edell would eventually introduce some 300 of them as evidence in
Cipollone
—disclosed any conspiracy or chicanery on the defendants’ part, the court could not be a party to their suppression. Product formulas, marketing strategy, and other matters affecting the day-today operations of the cigarette companies could remain private, but what part, if any, the companies played “in concealing or misrepresenting information regarding the risks of smoking is not entitled to such protection.” Then, noting the David-and-Goliath nature of the legal encounter before him, Sarokin added, “The court cannot ignore the might and power of the tobacco industry and its ability to resist the individual claims asserted against it. There may be some claimants who do not have the resources or such able and dedicated counsel as in this case to pursue the thorough investigation which these cases require. To require that each and every plaintiff go through the identical long and expensive process would be ludicrous.”
This ruling, which the industry appealed to the Third Circuit and lost, capped off Edell’s chief triumph in the case. The documents he obtained and ventilated represented the first glimpse by outsiders into the cigarette industry’s internal understanding of the health issue and substantiated the suspicion that what company executives were apprised of by their scientists varied markedly from their pronouncements on the subject. Perhaps the most illuminating documents were the memoranda in the early 1960s by Philip Morris R&D chief Helmut Wakeham, who had urged his superiors to allow his department to develop a “medically acceptable” cigarette (see chapter 8, section
iv
) and not to waste the company’s energies denying the heart of the charges in the 1964 report to the Surgeon General in the absence of persuasive evidence to the contrary (see chapter 9, section
iv
). Through his depositions of high-ranking company officials, Edell also succeeded in obtaining disclosures of the industry’s inability or unwillingness to face up to the health issue. Liggett’s former president and CEO Milton Harrington, who headed the company when the pioneer Surgeon General’s report appeared in 1964, was the very model of insouciance on the subject.
Q. What, if anything did you do in response to the Surgeon General’s report … ?
A. I read the report.
Q. What else did you do?
A. Nothing.
…
Q. You didn’t discuss it any further with any other executive at Liggett & Myers?
A. Not that I recall.
Q. Did Liggett & Myers do anything in response to the Surgeon General’s report?
A. Not that I recall.
Q. Did you form any impression as to … the validity of the Surgeon General’s report?
A. No, because that wasn’t up to me to do that. … I wasn’t asked what my personal opinion was.
Q. Was there anyone at Liggett in 1964 who was responsible for setting policy for the company with respect to cigarette smoking and health?
A. I don’t know. I didn’t have that responsibility at that time.
…
Q. Well, did Liggett & Myers have a corporate position with respect to the issue of cigarette smoking in 1964, 1965?
A. Well, I don’t know of any policy we had about it.
…
Q. What does the phrase “smoking and health” mean to you, sir?
A. Not anything particularly, really. The only time that really I began to think about—if you are talking about smoking and health—what is the warning labeling and all that stuff. I didn’t think about anything about smoking and health other than smoking was not harmful to you in any way.
Q. Was it your understanding you could not warn the public further about the potential health hazards of cigarettes because the warning was mandated by Congress?
A. We didn’t care to warn the public about anything. We just had to put that warning on. It wasn’t because we liked to, it was just something we had to do …
Still more precious to Edell than this confession of nonfeasance was the testimony of two whistle-blowers he uncovered in an industry noted for its secrecy even on the part of disgruntled former employees. One whom Edell solicited was James Mold, the retired head of Liggett’s long-running and ultimately abandoned palladium cigarette project. When Edell telephoned Mold at his home in Durham, North Carolina, the town where Buck Duke got his start, the scholarly and dedicated scientist indicated that he was willing to recount how the company had spent nearly twenty years and millions of dollars on the “safer” cigarette, only to keep it off the market out of fear of liability claims against the company based on the inference that the rest of the product line was therefore unsafe (see chapter 14, section
iii
). “Am I really hearing this stuff right?” Edell said he asked himself as Mold spun his startling tale. The young lawyer, unused to asking questions of a tobacco industry official who actually wanted to tell him something damaging, was so fearful that the palladium story and his witness would evaporate that he asked the court stenographer to provide him with a copy of the tape recording she had made as a backup before he left North Carolina. Liggett lawyers would first try to show up Mold in court as a tattler nursing sour grapes because he was never promoted to the top R&D job at the company and then argue that the palladium cigarette’s safety advantages were unproven. Independent investigator Freddy Homburger told his almost equally harrowing story of how he had been cut off by the Council for Tobacco Research after reporting evidence of laryngeal cancers in his laboratory hamsters and being pressured not to publish his findings; he, too, was disparaged by the industry lawyers as a scientist of dubious competence (see chapter 11, section
ii
).