The industry immediately denied the allegations, saying it never added any nicotine that wasn’t in the original leaf. Philip Morris, the largest of the U.S. companies, went on to sue ABC for $10 billion, the biggest libel claim on record. Their complaint focused on the word “spike.” ABC would eventually settle the case and apologize for mistakenly reporting that companies “add significant amounts of nicotine from outside sources.” The case would end up costing the TV company $15 million in the out-of-court settlement, but the publicity given to the case added to the changing public perception of what exactly does go into a cigarette, and it raised the question of whether the companies could control nicotine levels to keep smokers hooked. The program would also push Wendell Gauthier into action in New Orleans and trigger the world’s largest class-action suit. Don Barrett would get a call from Gauthier, whom he had never met, asking if he would like to join the Castano group. For a while, the Mississippi suit was to be overshadowed.
2
A DEATH IN THE FAMILY
Cry “Havoc!” and let slip the dogs of war.
—Shakespeare, Julius Caesar
THE METAIRIE CEMETERY is a splendid New Orleans landmark. Built six years after the Civil War on the former site of a race track, it has four thousand vaults and tombs, all above ground to protect them from the times when the flooding Mississippi rolls over its levees. Greek Revival marble crypts stand among lavish and ornate temples. Rotundas compete with soaring Egyptian obelisks. Metairie is the most elaborate burial ground in a city renowned for overdoing every aspect of life—and death.
Josie Arlington, who ran a brothel on Basin Street, was buried in a grand mausoleum of her own design made of pink granite imported all the way from distant Maine. Today, not even madams from the French Quarter can afford such elaborate memorials. The city’s recently dead rest mostly beneath bronze plaques like the ones in Plot No. 149. There, fixed in the coarse Southern grass beside a man-made lagoon, a plaque and a small metal vase of dried flowers mark the final resting place of Peter Castano, a local lawyer who died in 1993 at the age of forty-seven. Castano’s death certificate says he died from lung cancer due to smoking. He was a heavy smoker who started in his teens and even though constantly counseled by doctors and friends to give up the habit, he simply could not do it. His wife, Dianne, had agreed to marry him on condition that he stop smoking and, though he promised that he would and even swore on the Bible several times that he had done so, the truth, which was common knowledge to his wife and to his friends, was that he never gave it up. The best he could do for Dianne was not to smoke in front of her. She knew, of course. The evidence was the acrid smell of nicotine on his clothes. But Dianne was so fond of him that as the years went by she reprimanded him less and less. They had two children and lived in the pleasant middle-class section of Old Metairie at the back of the cemetery, on a street lined with oak trees laden with Spanish moss. He was a good provider who made a reasonable living from his criminal-law practice, but he had never expected to make legal history.
In the normal course of events, Castano’s untimely death would have been the tragic story of a smoker who had died prematurely from his daily pleasure. He would have become a mere government statistic, one of 425,000 smoking-related deaths recorded annually by public health officials at the Centers for Disease Control in Atlanta and at the National Center for Health Statistics in Maryland.
Like many tobacco widows, his wife, Dianne, was angry and wanted to sue the tobacco companies, even though she had been warned against such action by Peter’s lawyer friends. The tobacco companies, they told her, were too rich and powerful and had never lost a lawsuit. They were well known for bullying their opponents into submission with endless pretrial motions, armies of highly paid lawyers, and limitless funds. Don’t sue, they advised. You can’t win. For Castano’s widow it would be different.
Castano’s closest companion since law school at Loyola had been Wendell Gauthier. A venturer, Gauthier had shunned the orthodox legal career of his friend in favor of the riskier plaintiffs’ bar, with its potential for rapid fame and riches. For several years Gauthier had represented the victims of man-made disasters—hotel fires, airplane crashes, railroad accidents—and by the time of his friend’s death, he had amassed a small fortune.
The son of a Cajun construction foreman, Gauthier grew up in Iota, which is literally a dot on the map of the rice-growing region of southern Louisiana. His father served as a city councilman and his mother was a schoolteacher, but Gauthier was the first member of his family to attend college. To do so, he had to find his own funds. He sold cow manure and scrap iron and then taught high school and gave private driving lessons. Embarked on a law career, Gauthier used a formidable combination of diplomacy, cunning, and showmanship to become one of the leading members of the plaintiffs’ bar. His first break, a $1 million verdict against Louisiana Gas, came from representing a family whose home exploded due to faulty gas lines. Six more exploding homes gave Gauthier six more cases and eventually put him on a panel of experts to study the problem. They solved it. “They also put me out of the gas pipe business, but I was glad to be a part of the panel,” said Gauthier.
He went through what he called his “ego trip” of owning a Rolls-Royce and a Jaguar and developed a liking for sharply tailored double-breasted suits. Unlike his flashier colleagues, however, he had no yacht, no private plane, no vacation home in Florida. Instead, he lived in a large but modestly decorated house in Old Metairie, just around the corner from his friend Castano. And rather than have an office like other successful New Orleans lawyers in one of the skyscrapers erected by the oil companies downtown, Gauthier ran his law practice from a utilitarian two-story building in Metairie’s sprawling business district. His one indulgence was a small back room attached to his main office where he would play cards with friends on Saturday afternoons.
His business was mostly local, or mostly Louisiana. He became a confidant of the state’s governor, Edwin Edwards, part owner of the New Orleans Saints football team, and the head of a group of investors building a casino on the banks of the Mississippi. Although friendly and full of mischief, Gauthier was always working on a new case and rarely seen in public except when negotiating his Rolls-Royce around the narrow streets of the French Quarter where his wife, Anne, had an antique shop. Close friends shortened his surname and called him “the Goat.”
In court, Gauthier was known for unconventional tactics that would keep opponents off balance. He loved to play practical jokes, like the baked Alaska he sent to the tobacco lawyers. One day, after the Castano case was launched, an ABC News television crew came to interview him. He was late. The crew was waiting with John “Bhopal” Coale, who was acting as the Castano suit’s publicity director. Gauthier called from an outside pay phone pretending to be the sheriff. He told the crew there’d been a bank robbery and the robber had entered the office building. “Stay on the floor by a window, and put something over your face. We may have to use gas,” Gauthier told the crew. They believed him—until he called back to say the robber was on his way to their floor and Coale recognized his voice. “He had us all on the floor with jackets over our faces,” said Coale.
“You tend to discount him as just a clown, it throws you off your game,” said one past opponent. Another said, “What it takes to win within the system, he will do. Whether you call that fair, or unfair, I won’t characterize.” Among Gauthier’s booty could be counted millions of dollars litigated from a fatal explosion at a grain elevator, an airplane crash, the 1980 MGM Grand Hotel fire that killed eighty-five people in Las Vegas (settled for $208 million), and the Dupont Plaza fire in San Juan, Puerto Rico ($230 million). In a class action involving 200,000 women who had received breast implants, Gauthier was among seventeen liability lawyers who would be awarded a settlement of $4.2 billion, the largest single civil damages award in history.
Gauthier had never smoked and had been impressed as a youth by the work of Dr. Alton Ochsner, the New Orlea
ns surgeon who was an early proponent of the idea that smoking was linked to lung cancer. Gauthier had pleaded with his own children not to take up the habit. That was one case he lost. He had often been tempted, in the years before Castano’s death, to enter the minefield of tobacco litigation, but rich and adventurous as he was, the odds of a courtroom victory against the tobacco industry were too great, even for him.
When Dianne Castano asked him after the funeral to file a claim on her husband’s behalf, he refused. In any event, Gauthier feared that Castano’s smoking history would not stand up to the tobacco industry’s standard defense that smokers choose to smoke, even though they know it could kill them. Intelligent people like Castano know the risks. Since 1966, when the government warning labels went on cigarette packs, juries had bought the “personal choice” argument. Frustrating though it was for Gauthier to lose his best friend, he thought it was just a waste of his time and money to pursue a claim. But he assured Dianne Castano that he would keep looking for a way. Almost a year would go by before Gauthier found it.
The night ABC aired the Day One program on “spiking” cigarettes with nicotine, Gauthier was at home in Metairie. From what little he knew of the tobacco plant and the manufacturing process, Gauthier was struck by the tobacco companies’ response. They said they never added nicotine that wasn’t in the leaf, but that still left open the possibility that they manipulated the levels of nicotine by varying the kinds of leaves in the tobacco “blend” to keep a smoker hooked. For years, the companies had openly blended cigarettes, and different brands had different levels of nicotine that were advertised on the pack in milligrams, alongside the level of so-called tar. The companies had long had the expertise to extract nicotine from tobacco; they could put it back in, or keep it out, whenever they chose. In its report, ABC had interviewed an industry official whose identity was not revealed and who appeared only in silhouette but who had said, “They put nicotine in the form of tobacco extract into a product to keep the consumer happy.” The official was said to have worked as a manager for R. J. Reynolds, the second-largest tobacco company and the maker of Camel cigarettes.
Gauthier saw a new way to sue the tobacco companies. Kessler’s letter and the ABC program were an invitation to file a lawsuit based on nicotine addiction. If only part of what the program had alleged was true—that companies manipulate the nicotine content of cigarettes to keep smokers hooked—then how could the tobacco companies claim smokers choose to smoke? At least some, if not all, are addicted to nicotine. In Gauthier’s experience, Peter Castano was one of them.
Over the next few days, Gauthier ran and reran the thirteen-minute ABC tape in his office. The more he saw, the more he was tempted. But if he brought a liability suit based on addiction, he would have to prove something that the tobacco companies had always denied, namely that nicotine was an addictive substance. And he would have to prove that they knew it. The question was, How much of their private research on nicotine had the tobacco companies managed to conceal over the years? One of the most recent of the tobacco cases suggested the companies still had a lot of dirty secrets to tell.
* * *
AT THE END of the 1980s, the tobacco companies came as close as they had ever been to losing a lawsuit. A New Jersey woman named Rose Cipollone, who had had begun smoking at sixteen during the Depression, had developed a three-centimeter lesion at the rear of the upper lobe of her right lung by 1981. Operations and chemotherapy followed, but nothing could stop the onward march of cancer cells, which eventually invaded her liver and then her brain. In 1983, she sued the tobacco companies, seeking unspecified damages from three of them, Philip Morris, Lorillard, and Liggett & Myers, all makers of the brands she had smoked: Virginia Slims, True, and Chesterfield.
Her complaint was that all three companies had failed to warn her properly of the health risks of smoking. The companies’ defense was, as usual, based on the idea that Rose, who was a regular reader of the newspapers and a viewer of television, would have known about the dangers of smoking for decades—at least since the 1950s. If smoking had caused her cancer, which the companies did not accept, then it was her fault for smoking. She died in 1984 before the case came to trial, but her husband, Antonio, carried on the suit.
Rose’s lawyer, Marc Edell, had defended asbestos companies in their fight with plaintiffs’ lawyers in the 1970s and 1980s. Now he saw an opportunity to make a name for himself as the one who ended the tobacco companies’ winning streak. For almost a decade, he fought the companies on Rose’s behalf. He went further than any lawyer before him in forcing the companies to delve into their archives to produce internal memos and research papers on smoking and health. In all, Edell made the tobacco industry spend an estimated $50 million in legal fees.
But in the end, he, too, was beaten. The jury agreed that Rose’s cancer had been caused by smoking and that one company, Liggett & Myers, whose Chesterfields Rose had smoked more than any other, had failed to warn her of the harmful effects of tobacco prior to the 1966 government warning labels on cigarette packs. But the jury awarded Rose’s estate no damages because they found the company only 20 percent responsible for her death and New Jersey law requires a finding of at least 50 percent responsibility. Philip Morris and Lorillard were let off because Rose had smoked their brands after 1966. The jury, however, took pity on Tony Cipollone, awarding him $400,000 as a sort of consolation prize for being a dutiful and concerned husband. It was the first time a jury had awarded any damages in a tobacco lawsuit, but it was an odd, unconventional gesture from the jury with no legal basis, and the award was overturned on appeal.
That was not the end of the case, however. Various court irregularities gave an opportunity to each side to appeal and the case went to the Supreme Court. The justices eventually agreed that Edell had been prevented from trying a big part of his case because the industry, post-1966, had concealed or misrepresented the truth on the smoking and health issue. The Court allowed a retrial on that issue, but by then Edell’s law firm had had enough. They had been representing Rose on a contingency fee basis and they had spent nearly $3 million. They pulled out of the case, and the tobacco industry declared victory.
For Gauthier, the important lesson was in Edell’s unfinished business. In the course of pretrial discovery—when each side can delve into the history and document archives of their opponent and question its research scientists, engineers, and managers—Edell had tried to force the companies to surrender 1,500 documents. They had refused on the grounds that these were communications between client and counsel, and therefore privileged. The judge in the case, H. Lee Sarokin, a liberal-minded jurist given to moral indignation about corporate wrongdoing, had ordered a private review by the court to see if the companies’ claim of privilege was justified. In his ruling, Sarokin issued one of the sternest judgments ever made from the bench against the industry. It included the following two paragraphs:
All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity?
As [the facts of the case] disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.
To Gauthier, Sarokin’s allusion to hidden documents was like a croupier spinning the wheel for the start of play. Forcing companies to reveal incriminating internal papers is a key element of the liability lawyer’s art. Gauthier would later recall, “That comment alone made me take another look at the case.” And the handful of documents actually released during the trial bolstered Gauthier’s theory that addiction—not failure to warn of the health dangers of smoking—was the new legal issue.
Those internal memos and research reports from the Cipollone trial r
ecords showed how tobacco industry scientists, contrary to company statements, believed that most people smoked to get a shot of nicotine, not for the pleasure of the act of smoking nor for the taste of the tobacco smoke, as the companies had asserted for so long. One of the more explicit memos, dated 1972, came from Philip Morris psychologist William Dunn. In it, he concluded, “The cigarette should be conceived not as a product, but as a package. Think of the cigarette pack as the storage container for a day’s supply of nicotine. Think of the cigarette as a dispenser for a dose unit of nicotine.”
Given such memos, Gauthier decided to go ahead and put together a suit on behalf of Castano. But though it would carry his friend’s name, it would be a massive class action on behalf of all nicotine-addicted smokers, potentially tens of millions of Americans. The case had an attractive simplicity about it: the injury was addiction and the cause was nicotine. Gauthier would ask for two kinds of damages. The first was the establishment of a medical monitoring fund—to pay for checkups of addicted smokers for lung and heart disease and help them to quit the habit. The second would be punitive damages. Gauthier had in mind asking the courts to force the companies to pay fines from the sale of cigarettes. With 45 million smokers, an estimated half or more able to qualify as addicted to nicotine, the total amount the industry would be asked to pay, Gauthier figured, would come out to hundreds of billions of dollars.
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