Authors: Richard Kluger
V
MARC EDELL’S
youthful stamina was put to the test throughout the final pretrial year of the
Cipollone
case. He had moved from his old firm to the posh offices of Budd Lamer Gross Rosenbaum Greenberg & Sade in suburban Millburn by the time the trial began in February 1988. While Budd Lamer’s partners, hopeful of large future rewards, were willing to sustain Edell’s effort to humble the lords of tobacco, the unreimbursed bill for time and expenses had passed $2 million and was still mounting. Yet Edell’s was a minimal operation; his team consisted largely of his dedicated legal associate, Cynthia Walters, and a gifted paralegal, Nelson Thayer. Nonstop twelve-hour days became routine as they struggled with a constant flurry of court papers, industry documents grudgingly released after last-minute hassling, and draining skirmishes over the defense’s ceaseless efforts to narrow the plaintiffs case.
Ranged against Edell’s tiny band was the industry’s legal legion, numbering close to a hundred people including the support staff, drawn primarily from three firms: Arnold & Porter in Washington, representing Philip Morris; Webster & Sheffield, the white-shoe Manhattan firm that had long handled Liggett’s legal business; and Shook, Hardy & Bacon, the Kansas City firm specializing in tobacco cases and arguing now for the Lorillard division of Loews. The defense’s unanointed chief strategist, Murray Bring, had by then joined Philip Morris as an associate general counsel; within half a year he would become general counsel, senior vice president, a board director, and one of the most powerful figures in an industry now facing unprecedented legal challenges.
Judge Sarokin’s courtroom, in a nondescript federal office building on Newark’s once flourishing Broad Street, held seats for only seventy-five spectators, many of them occupied throughout the trial by tobacco industry observers and members of the defense team supplementing the five or six litigators involved in the proceedings on any given day. Because media attention had been lavished on the
Norton
trial, which had just come to an aborted end, the press by and large gave slim coverage to
Cipollone
until its final stages. Hardly a dozen reporters were on hand as the trial opened, and neither
The New York Times
, arguably the nation’s foremost daily, nor
The Wall Street Journal
, its most widely read financial publication, saw fit to provide running coverage of the sharpest challenge ever mounted against an industry accused by medical science of being the deadliest on earth. Only the Washington
Post
, among national media, paid continuous attention, due in large measure to the
insistence of its veteran consumer affairs specialist, Morton Mintz, who grasped the significance of the documents Edell was introducing.
His main problem, Edell understood, would be to convince the six-member jury, only one of them a current smoker, that anyone who, in that day and age, had continued to smoke and then fallen fatally ill from the habit deserved to be compensated monetarily. Edell thus opened his long-rehearsed remarks by telling the jury this case was about an industry that, instead of warning the plaintiff and her fellow smokers of the dangers of its product, said, “Mrs. Cipollone, if you trusted us … if you believed our statements in the press, if you believed our advertisements—if you were stupid enough to believe us, then you deserve what you get.” Conceding that Rose Cipollone had had a choice in electing to smoke, he argued that it was not an informed choice but one made when she was a teenager and that quickly led to a powerful addiction. The tobacco industry, Edell insisted, had also made a choice: it could have chosen to warn its customers long before the U.S. government made it do so in 1966—by which time Rose had been smoking almost twenty-five years. The cigarette makers, “unlike Rose Cipollone,” knew all the facts about the health hazards of smoking, but instead of warning the public, “they embarked on a campaign to deceive, confuse and mislead people.”
Opening for the defense was its lead courtroom performer, Peter Bleakley, a former FTC and Justice Department litigator before joining Arnold & Porter, where he had tried a number of complex corporate cases. At fifty-one, he was easily the most accomplished trial lawyer in the courtroom, expertly wielding a soft tenor voice that could be quickly honed to a nice cutting edge to menace hostile witnesses. Tobacco was as old as the Western Hemisphere, Bleakley told the jury, and reports of its harmful effects had been prominently spread since the days of James I nearly four centuries earlier. Everyone was familiar with the term “coffin nails,” referring to cigarettes, he said, thus blurring the distinction between the almost entirely anecdotal notoriety of tobacco over much of its history and the body of evidence that medical science had uncovered only since the midpoint of the twentieth century. The tobacco industry, once apprised of the serious charges against it, had begun research in earnest in 1954 and had continued ever since, but even a third of a century later, the defense lawyer said, the causes of cancer remained a mystery to science. Rose Cipollone knew all about the health charges against smoking, Bleakley asserted; she was “an intelligent, inquiring, well-read woman aware of what was going on around her in the world,” and therefore “that is the issue” in the case.
Edell first put on the stand his most remarkable and useful witness, one who had no personal connection with Rose. A tall, slender associate professor of economics from Massachusetts Institute of Technology, Jeffrey E. Harris was also a Harvard-educated physician who for twelve years had devoted one day a week to primary in-patient care at Massachusetts General Hospital. Over the
four previous years Harris had also immersed himself in libraries, sopping up everything he could on the chemical, medical, and economic aspects of the tobacco business and conveying the essence of his findings to Edell.
Though he was not a board-certified practitioner in any field of medicine or the author of notable books or articles on any subject, Harris was accepted by Judge Sarokin as an expert witness on almost every aspect of the tobacco industry and, over repeated objections by the defense, Sarokin granted him immense latitude to tell the jury what he had learned. What followed was, in effect, nearly a weeklong lecture, on what science had come to know about the health effects of smoking, what the tobacco industry knew or should have known about it, and what it did and did not do in response. Like a lively classroom instructor, Harris used graphic aids in the form of blowups or slide-projected copies of important scientific articles, from which lie cited highlights, then bounced off the witness stand to enter their titles at the appropriate spot on a “time line” of Rose Cipollone’s life. Edell would cut into Harris’s presentation from time to time with a question about terminology or a request for an elaboration in order to maintain the appearance of a question-and-answer exchange, but essentially the bearded MIT professor was laying out Edell’s case for him. The more substance it took on with Harris’s almost clinical delivery, the more the defense lawyers objected to his performance. But Sarokin would not rein him in, and Harris tellingly contrasted the tobacco companies’ conduct with that of the canning industry, which had adopted new sterilizing methods when botulism was traced to its careless procedures, and the pharmaceutical industry, which had put a skull-and-crossbones warning on preparations found to be toxic when ingested. Such measures were in marked contrast to the conduct of Philip Morris, Harris said, which in the ’Thirties had introduced the humectant diethylene glycol—a compound later found to be harmful to the kidneys—based on a minimum of testing (see chapter 4, section
iv
).
Harris proved even more effective on cross-examination. The young professor never grew flustered and gave pointed questions long, detailed answers that only made the defense look worse. When Bleakley asked him, for example, if early Argentine investigator A. H. Roffo’s studies into the carcinogenic properties of burned tobacco (see chapter 4, section
vii
) were not compromised by his stated hatred of smoking, Harris replied, “As a doctor who saw a lot of people dying of cancer, I think that would be understandable.” And when asked if Ernst Wynder’s skin-painting bioassays with mice (see chapter 6, section
vi
) were not fatally marred by unrealistically high dosages of tobacco smoke condensate, Harris asked in turn why the tobacco companies’ researchers had utilized the same testing technique for carcinogenic activity for so many years. The industry as a whole, he declared, should have initiated serious research into the health charges by the late ’Thirties, and since the scientific case firmly
establishing cigarette smoking as a lethal health hazard was
a fait accompli
by the late ’Fifties, there was no justification after that for the industry’s holding out for unquestionable “proof”. “Do we have to know the cause of lung cancer in order to do something about it?” he asked.
Edell took perhaps his biggest chance in the case by calling to the stand the tobacco industry’s leading figure since the death of American Tobacco’s George Washington Hill. Joseph Cullman was just a few weeks shy of his seventy-fifth birthday when he appeared in Judge Sarokin’s court for a grilling that lasted more than two days. At the time, the retired chairman of Philip Morris held 325,000 shares of his company’s stock, worth about $30 million. Cullman remarked after the trial, “My conscience was absolutely clean—we didn’t conceal, delude, or withhold anything from the public.” The industry, he said, had handled itself “in an exemplary way … and in this landmark case I was glad to stand up and be counted.” He savored the challenge that Edell represented, “but he didn’t make my life easy.” If the defense lawyers were concerned about whether Cullman could, at his age, stand up to Edell’s relentless questioning, they were soon put at ease. Shook, Hardy’s young lawyer Steven C. Parrish, then representing Lorillard but later to become general counsel for Philip Morris’s U.S. tobacco division, remembered how, during one break in the trial, Cullman had become so engaged in conversation in the marbled hall outside the courtroom that he failed to notice that the jury had reassembled and was awaiting his return to the witness stand. Alerted, “Joe nearly sprinted all the way from the hall back to the stand,” Parrish said, “and gave a little jump into his chair at the end,” to the jurors’ amusement.
Certainly compared to the other two retired chief executives of the defendant companies who testified in the trial—Liggett’s Milton Harrington and Lorillard’s Curtis Judge—Cullman seemed a model of corporate civility and candor. Surely, he said, he and his fellow Philip Morris executives were fully aware of the health charges against smoking and had, accordingly, set in motion research into the chemical properties of tobacco, but the carcinogenic initiators and promoters found in the smoke were “minuscule;” even so, the company undertook to reduce the tar and nicotine levels in its brands, although he insisted, “There was nothing at that time—and there still isn’t—that proves causally that cigarettes cause lung cancer.” He conceded that smoking was a difficult habit to break but denied that it was addictive, and when shown a report by Philip Morris researcher William Dunn calling cigarettes mostly a delivery system for nicotine (see chapter 13, section
ii
), Cullman simply said he disagreed with that characterization.
But Edell began to bore in on him, pressing to learn why exactly the company had modified its products in the wake of scientific findings that they posed a serious health hazard. “We reduced the tar and nicotine because there
was a demand in the marketplace for a cigarette that reduced tar and nicotine—smokers wanted it,” Cullman said.
Q. That’s the purpose—that was your motivation—so you could sell your cigarettes. There was a demand out there, you knew it from your consumer surveys that people wanted a filter cigarette with less tar and nicotine, correct?
A. I think that’s a fair statement.
Q. And that’s why you put them on the market. It wasn’t in an effort to reduce heart disease and reduce cancer—isn’t that right?
A. … I think we were trying to do anything we could to satisfy the large market of smokers out there and also their desire to continue to smoke and also to give them a cigarette that would be reduced in tar and nicotine which they would view as being somewhat better for them.
The company was thus responding to its critics by lowering the yield numbers without knowing of or claiming any health benefit in the process, he said, adding, “and we were doing it all the time, but we were not allowed to advertise [the fact]. We were prevented from doing this by the FTC. … It was my distinct understanding that the FTC prevented us from making any health claims about the cigarettes.” Edell pounced on that.
Q. But you could have told them there were health detriments—there was no prohibition to tell your customers that there were detriments, that there were hazards to your cigarettes, right?
A. I don’t know. I was there, and I’m not sure that you were there, and I don’t recall—
Q. I’ve looked at the law, Mr. Cullman.
A. … My answer is we abided by the regulations of the Federal Trade Commission—they were very tough—and that we had to abide by their instructions to us.
Q. And that is your testimony, Mr. Cullman—that those instructions by the Federal Trade Commission prevented you from advising your consumers of the potential health hazards of your products? A simple yes or no, sir.
A. My answer to that is yes.
There was, of course, no such FTC prohibition—only a rule against making affirmative declarations of health benefits that could not be documented. Asked if Philip Morris could not have told the public about its internal research into the properties of tobacco smoke, Cullman said that statements made outside its formal advertising might nonetheless be taken for such and would have been similarly forbidden. This, too, was either an invention or misinterpretation.
Edell put it more baldly in his summation, calling Cullman “very smooth, very polished, very sophisticated … probably one of the greatest marketing men the tobacco industry has ever known, [yet] he sat there and looked you straight in the eye and told you, ‘We didn’t warn them because the FTC wouldn’t let us’”—and that, declared Edell, was “a straight lie.”