The company also hired “consultants”: local leaders of the community who could advise the defense lawyers on reactions of the jury members once the trial began. Their job was to sit in the courtroom each day and act as a “shadow jury.” Earline Hart called them the “fan club” because they would turn up each day and sit on the tobacco company’s side of the court. The courtroom, which holds about 150 people comfortably, had up to 300 spectators each day. Local people stood in line to be sure of getting a seat. About fifteen or twenty were members of the “fan club,” and anyone who sat in one of “their” seats was promptly asked to move elsewhere. Dick Daynard, who came down from Boston to observe the trial, put his briefcase on one of the reserved seats, and went to get a drink of water. When he came back, his briefcase had been moved to the other side of the courtroom. He was told that this was where the defendant’s trial consultants sat. The effect was to let the jury know they were being watched by community leaders who had control over the welfare and economy of the county. “They always began the day shaking hands with the defense lawyers in full view of the jury,” he recalls. “I’ve been in lots of courtrooms in my life and nobody’s ever moved my briefcase from one bench to another.” Although the tobacco company never admitted paying them, some of the consultants received $50 an hour, more than many workers in Holmes County made in a week.
American Tobacco hired five Mississippi law firms to help defend the case. The leader of the team was James Upshaw of nearby Greenwood. The company’s New York lawyers were also present in force. They rented a wing of the local motel and sectioned it off with security guards. Room service meals were provided by the restaurant next door. The out-of-state lawyers quickly discovered that Holmes County is dry and the only local liquor store in Lexington was the Beveridge Shop. For years, the store’s supply of Bombay gin had been gathering dust on the shelves, since the locals preferred whiskey. Soon after the tobacco lawyers hit town, the gin disappeared. There also seemed no end to the company’s expense account. In Lexington, the defense team rented a house to serve as office space. The Federal Express delivery man made frequent visits there. On his last trip after the trial, he picked up a load of 1,500 pounds of documents bound for New York, at a cost of $5,000.
Barrett’s funds, by contrast, were severely limited and his operation was local. It included Fred Clark, a black lawyer from Greenwood, and Charles McTeer, another black lawyer, from Greenville. Clark had graduated from Ole Miss law school ten years earlier and had worked with Barrett on toxic waste cases. McTeer had graduated from Rutgers in 1972 and was a well-known civil rights lawyer.
To bolster his case, Barrett had deposed the company’s former chairman and CEO, Robert Heimann. During two hours of examination about his twenty-five years with the company, Heimann showed himself to be arrogant and uncaring. Among several arresting observations, Heimann claimed that the idea that smoking was hazardous to health had never occurred to him or to anyone else in the company and he could not recall his board of directors ever discussing the issue. Asked whether it had ever occurred to the company that one day researchers would establish that smoking was hazardous to health, Mr. Heimann simply said, “No.” Although he had never studied medicine and was not a statistician, the former chairman claimed that he was more qualified than a medical doctor to pronounce on epidemiological findings. The 1964 Surgeon General’s report that was the first to establish a causal link between lung cancer and smoking was based on “spurious statistics” and had been advocated in “a reprehensible propaganda campaign,” he said. Asked whether the Surgeon General was more qualified than he to determine if smoking is hazardous to health, Heimann replied, “No.” He said, “Most physicians have little or no knowledge of statistical nuances and would be easily taken in and misguided by their improper use.”
“So, is it your opinion that you are more qualified than a medical doctor?” he was asked.
“In that area, yes,” replied Heimann.
“Did any senior executive [of the company] ever consult with any professional medical association … to determine if there were health hazards associated with smoking?”
“Not that I know of,” answered Heimann.
Nearly a year after Horton’s death, the trial began on January 5, 1988. Barrett put up a brave front. “It won’t be long,” he said of the tobacco industry, “before the house of cards comes tumbling down … or we slink back into our little holes, never to be heard from again.” In his opening remarks, Barrett told the jury of the toxic cocktail of substances in cigarette smoke—from radioactive polonium-210 to high-phosphate fertilizers, residues of pesticides, and even microscopic particles “similar to asbestos.” How could Nathan Horton possibly have known all this? he asked. And, therefore, how could he be said to have accepted all the risks? Defusing the personal responsibility factor, Barrett admitted Horton had to some extent been negligent in smoking Pall Mall cigarettes. But so had the company for selling them. “We accept our responsibility. The American Tobacco Company refuses to accept theirs, and that’s what this lawsuit is all about.” The company’s defense ran to the usual argument. Horton was a strong-willed man totally in control of his life. If he chose to smoke and continued despite the 1966 warnings on the cigarette packs, advice from his family, his friends, and even his high school football coach—whom the company had tracked down—then that was his decision.
For almost a month the arguments went back and forth. All the while, the “fan club” dutifully turned up and made their observations for the defense lawyers: the jury was clearly confused by some of the medical evidence, and the word around town was that some of them thought that Barrett had asked far too much in damages. It was an amount of money only dreamed of in Lexington. In its closing speeches, the company charged that the medical experts who testified for Horton were suspect because they were zealots on a crusade against the company and that the plaintiffs’ lawyers were out to make big bucks from the industry and out of the controversy over smoking and health. Barrett retorted that he was “proud to be on a crusade to clean up the tobacco industry.”
The jury retired on January 28 with a key instruction from the judge that the company could not be held responsible in comparative fault unless the jury agreed it had been selling cigarettes it knew to contain harmful contaminants. As to the $15 million punitive award, the judge told the members of the jury—eleven blacks and one white—that they would have to find that the company had a reckless disregard for the public health in failing to test their cigarettes properly if they wanted to award punitive damages.
On the first day of deliberations, the jury deadlocked, eight in favor of the plaintiff and four for the company. Agreement seemed a long way off, and they were sequestered for the night in a motel in Greenwood, fifteen miles away. By the afternoon of the next day, the jurors were split seven to five in favor of the company and told the judge they couldn’t agree. The judge declared a mistrial. The company declared victory, and the plaintiffs cried foul.
Barrett tried to open a judicial inquiry into whether the company’s consultants had tampered with the jury. The judge’s finding was that one of the consultants had made an improper call to two of the jurors but there was no criminal wrongdoing. The judge also blocked Barrett’s efforts to subpoena all the consultants to determine exactly why they had been hired and how much they had been paid. Such a process, the judge ruled, could have a “chilling effect” on their future efforts to take on consultant work—a job that was perfectly legitimate. The two sides dispersed—American Tobacco with a legal bill estimated to be around $10 million and the Barrett Law Offices with a debt of $260,000 in out-of-pocket expenses and $2 million in billable time. Don Barrett had taken out a second mortgage on his house to cover the costs, but he vowed to fight on. “We came so close,” he said, “once you slap the bully in the bar … you’re in for the whole fight.” But he could not have imagined where that fight would eventually lead him. The retrial was moved to Oxford, the site of Ole Miss, hi
s alma mater, because the judge ruled there had been so much publicity and so much public sniping between the two sides that a new Lexington jury would be prejudiced. After hearing eleven days of evidence in the Oxford trial, the jury decided that cigarette smoking had caused Nathan Horton’s lung cancer but refused to award damages, saying both the company and Horton were at fault. Each side put its own spin on the verdict. Barrett claimed victory because the jury had found Pall Malls were dangerous and Horton had not been fully aware of the risks. A lawyer for the tobacco companies said that when a jury awards no damages the tort isn’t complete, and he claimed victory, too.
* * *
DON BARRETT HAD NEVER SMOKED but during the Horton trial he developed what he called his “cigarette habit”; he became addicted to suing the tobacco companies. He was bitter about the $2 million he had lost on the trial and wanted revenge. But he also wanted justice. If you live in Lexington, Mississippi, you have a worm’s-eye view of the capitalist state whatever your politics. Barrett is a mixture of Southern populist, traditional Republican, and devout Methodist. He had seen who was smoking cigarettes and who was being harmed by them, mostly poor working people. He believed the tobacco companies should be forced to be more socially responsible. Beating them up in court was one way to make them do their public duty.
The strength of his commitment to tobacco litigation was as sturdy as his roots in Lexington. One summer’s day in 1996, Barrett and I were driving out of town to visit Ella Horton. When the kudzu vines are at their peak in high summer, the landscape is stifling and you long for the open plain of the Delta, and the cotton fields. I asked Barrett why someone such as himself, who was relatively wealthy, despite his loss to American Tobacco, would stay in tiny Lexington. He replied that he had never had any plans to leave. As Faulkner had said of his treasured native state, “You don’t love because; you love despite.” But there was something else. Barrett said he had come to believe that he was doing God’s work. He thanked the Lord that he had been given this opportunity to fight the wrongdoings of the tobacco companies; he was a crusader, just as the tobacco company lawyers had painted him in the Horton trial. He didn’t want to put the tobacco companies out of business; he wanted to hurt them—as they had hurt Nathan Horton, and as they had hurt him.
The image he portrayed was oddly out of place with the picture of the unscrupulous courtroom brawler that most often comes to mind when thinking of personal-injury trial lawyers. A similar religious fervor could be found in two other Mississippi lawyers who would join Barrett in his campaign against Big Tobacco and eventually become the prime movers in bringing the tobacco industry chiefs to the negotiating table in the spring of 1997.
One was Mike Moore, Mississippi’s attorney general, whose youthful good looks and instant charm belie the rough and tumble politics of his office. The other was Dick Scruggs, a courtly, bespectacled country lawyer with a ready smile, who had been a navy pilot, otherwise living most of his fifty years in the port town of Pascagoula, on Mississippi’s Gulf coast. Scruggs and Moore had grown up in Pascagoula, but six years apart. Scruggs, whose parents were divorced and whose mother was a secretary at the Ingalls Shipbuilding Company, learned early the meaning of money; the shipyards were booming in the ’60s making vessels for the navy, and the owners were very rich. As a teenager, Scruggs would spend many days hanging out at one of their grand antebellum houses on the beachfront, which had been converted into a club for families of shipyard employees. When he later made his own fortune through asbestos lawsuits, Scruggs would buy two of those houses. He had wanted to turn one into a reception hall for the town, but the neighbors opposed the idea. “Some of them are concerned the bubbas will be down there peeing in the flower beds,” Scruggs would tell American Lawyer in his first big media interview in the spring of 1996.
Mike Moore grew up in a strong Catholic family in a comfortable middle-class neighborhood. One small setback he mentions in an otherwise easy childhood was that it took him longer than most to grow to his full height of five feet, eleven inches. He was only five feet, three inches when he graduated from high school, with the result that he was pushed around by his peers more than he would have liked. The suggestion is that this in part accounts for his congeniality and his reluctance to say no to people; and that it also left him with an uncontrollable ambition to succeed and an irrepressible desire to look after the “little guy.” Certainly, he has been a great cheerleader for his small state. When he talked about “li’l ole Mississippa takin’ on Big Tobacca,” it was said with deep feeling—from a Southerner who was determined to make his mark on the Northern Establishment and, if possible, on the rest of the world.
In 1974, Scruggs and Moore met at the law school of Ole Miss. Moore was a keyboard player in a rock band and a Little League coach. Scruggs, six years older and straight off the flight deck, was more mature. He never had much time for nonacademic pursuits. He continued to fly in the navy reserve to help pay his tuition. Of Moore in those days, he says, “We were friends, but not close.” After law school they went their separate ways, Scruggs to a law office in Jackson, the state capital; Moore home to Pascagoula. Still only twenty-seven, Moore became a district attorney, stirring up the local community during his first year in office by pressing charges and winning corruption convictions against four of the five county supervisors. As he moved up to Jackson to seek wider political office, Scruggs returned to Pascagoula to set up his own business. They met infrequently.
By chance in the late seventies, Scruggs encountered Don Barrett, on opposite sides of the Lexington courthouse. Barrett was a plaintiff’s lawyer seeking damages for a domestic electrical fire and Scruggs was representing the power company. Barrett won the case but they became friends and later, when Barrett took up Nathan Horton’s smoking case, Scruggs encouraged him.
In 1984, Scruggs started handling asbestos cases. The Johns-Manville Corporation had already filed for bankruptcy, leaving 16,500 asbestos lawsuits pending and an estimated 130,000 claims yet to be litigated. For a decade, the plaintiffs’ lawyers had been winning or settling virtually every asbestos case they filed. Pascagoula shipyard workers came knocking on Scruggs’s door. They all had lung diseases of various types caused by asbestos. Scruggs had read up on pulmonary medicine and put up his own money, a few thousand dollars, for the men to have medical exams, an initial expense other local lawyers involved in asbestos cases had balked at. Scruggs started winning cases. The result: Scruggs got the most clients, about 4,000 of them in all.
With some deft footwork he also managed to try his cases more quickly than others. The asbestos companies had succeeded in transferring most of the local cases from state to federal court, where they would have to wait in a long line to be heard. But Scruggs seized on a Mississippi Supreme Court ruling on strict product liability that for the first time gave plaintiffs the chance to include local distributors in personal-injury claims. The big asbestos companies had headquarters elsewhere, but by naming a local distributor as a defendant, Scruggs was able to get his cases returned to the state court, a much quicker route to trial. Scruggs was lucky to have a local populist judge, Darwin Maples, in charge of his local court. Maples wanted to get the cases in and out of his court as fast as possible.
As it turned out, Scruggs was also a master at cutting deals. While his colleagues looked on and scoffed, Scruggs slipped through settlements for much lower awards—but clinched the deals before the companies declared bankruptcy. Scruggs also consolidated thousands of claims into a single trial—a type of class action that had been pursued before by two other trial lawyers prominent in asbestos litigation, Ron Motley of Charleston, South Carolina, and Walter Umphrey, of Beaumont, Texas (now both on Wendell Gauthier’s class-action committee). In Pascagoula, Scruggs left his colleagues standing on the courthouse steps, pockets empty. His average client received between $50,000 and $60,000 and Scruggs took his 25 percent.
Moore, meanwhile, was running hard for attorney general. He was elected in 1987
with a class of yuppies who had taken over state government. Energetic, bright, and charming, Moore was soon being spoken of as a future governor of the state, something he did not discourage. He would win reelection in 1991 with 75 percent of the vote. Scruggs was a major contributor to his campaigns.
One of Moore’s first tasks as attorney general was to add the state of Mississippi to the nationwide lawsuits against the asbestos companies to recover the cost of removing asbestos from public buildings. The attorney general’s office had no staff to do the litigation, so Moore hired Scruggs to represent the state. In five years, Mississippi recovered $20 million and Scruggs received his 25 percent fee.
From his modest beginnings, Scruggs had already become a Southern gentlemen of considerable means. “I happened to be in the right place at the right time,” he acknowledges modestly. By the ’90s, Scruggs had two yachts, a holiday home in Key West, and his own Learjet. But to meet him you wouldn’t know that his take-home pay is over a million dollars a year. Unlike some of his more colorful brethren in the plaintiffs’ bar, Scruggs works out of cramped, spartan headquarters in a bleak shopping mall in the middle of Pascagoula. He drives a dark-green, two-seater Mercedes convertible, but it’s parked outside the back door because there’s no room at the front. In place of the usual English barrister or hunting prints on his law office walls, there are pictures of sailing boats and of Scruggs piloting his navy jets. He is almost apologetic about his boats and jet plane, although he clearly enjoys both.
* * *
SCRUGGS HAD now become an elite member of the plaintiffs’ bar. While many of its members promote themselves as private attorneys general righting civil wrongs, stepping in to help the common man through the court system when government either can’t or won’t be of assistance, actually they participate in a litigation lotto. How much they are motivated by money and how much by social conscience or even guilt is a question hard to answer. But in the spring of 1994, the fact is that as a group these self-made men and women had never been so well placed to conduct a crusade. In New Orleans, Gauthier would say of his class action, “I know the outside world thinks we’re greedy hogs. As I see it, this is our chance to do some good for society and give something back.” Scruggs felt it was time to “reinvest” his capital. “If we don’t use a substantial part of that money to reinvest in our clients and reinvest in the people that we represent, then the criticisms of us are justified.… We had a war chest and it was our duty to reinvest it.” To Scruggs, it was a straightforward equation; spend some of your money in a good cause or keep your money and be despised for how easily you made it. This did not mean a rush to “invest” without prospects of a return, but none of them, especially the trio that emerged in Mississippi—Scruggs, Barrett, and Moore—imagined how much would eventually be on the table.
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