The Philadelphia district court approved the deal, but it was appealed by several of Motley’s colleagues. Eventually, it landed in the Supreme Court where it was rejected in 1997. But in 1994, Gauthier knew that inviting Motley would be raising the expertise and noise level of the Castano action, which he wanted to do. It would also be inviting trouble. Caught in this bind, he decided against asking Motley to join. Instead, he let Motley make the request, which was, of course, accepted. It was the beginning of a turbulent relationship, as Gauthier had feared. But for Motley, the Castano case, prominent as it was, would be merely a stepping stone to his larger involvement with the attorneys general and their key state Medicaid cases, especially in Mississippi: cases that had not yet even been filed.
* * *
WHILE GAUTHIER ASSEMBLED his team from the comfort of his Metairie office, another front of the Third Wave was being opened up in Washington. On March 25, Congressman Henry Waxman, a Democrat from California and a veteran antitobacco campaigner, began hearings on Capitol Hill under the uncompromising banner, “Regulation of Tobacco Products.” Of all the congressional investigations into the industry over the years, and there had been many, these were to be the most hostile. The star witness against the industry was Dr. David Kessler, commissioner of the FDA. He would be building on the themes introduced in his February letter a month before—that nicotine is an addictive drug and that the industry manipulates nicotine levels. His staff had found several tobacco company patents that mentioned ways of “adding nicotine” or “maintaining or increasing nicotine content,” and of substances that might allow “the release of nicotine in controlled amounts.” Kessler admitted that none of his evidence meant the patents had been used, and the companies protested vigorously that they had not been. But Kessler’s point was that the industry had at least experimented with the idea. The technology was available.
The tobacco industry’s traditional congressional allies counterattacked. They complained of Kessler’s “precipitous and reckless conduct” in charging the companies with trying to hook customers. They said his goal was the prohibition of tobacco. His agency did not even have jurisdiction over the industry. That was Congress’s job, they said, and always had been. They also attacked Kessler for suggesting there was something new in saying nicotine was addictive. But Kessler’s point was that the companies knew this and appeared, from the patents, to be ready to manipulate the levels of nicotine in cigarettes to keep smokers hooked. But he had not yet demonstrated manipulation; that was to come. The FDA’s work would grow in intensity, bolstering Gauthier’s offensive.
On March 29, 1994, in the U.S. District Court on Poydras Street in downtown New Orleans, Gauthier and twenty-five plaintiffs’ law firms, only a handful of which had ever been involved in tobacco litigation, filed Castano v. American Tobacco Company, Civil Action No. 94-1044.
Besides Peter Castano, the names of four other local plaintiffs who had tried to give up cigarettes and failed were on the papers. Ernest Perry had tried hypnotic therapy, acupuncture, injections in the ear, an ear-clip device, and a variety of nicotine patches. George Solomon, one of Gauthier’s partners in the casino venture, had also used a hypnotist, injections, and other methods in unsuccessful attempts to shake off his desire for nicotine. Gloria Scott had started smoking Camels in 1958 and complained of headaches and stomach problems when she tried to give up. And Deania Jackson, a New Orleans attorney who had started smoking in junior high school in 1973, had quit for six years, but couldn’t keep off cigarettes and had taken up the habit again in 1992.
There were eight named defendants: the American Tobacco Company; the Philip Morris Companies Inc., the nation’s largest tobacco company and maker of the most successful brand, Marlboro; the R. J. Reynolds Company, which makes Camels and is the second-largest manufacturer; Brown & Williamson; Lorillard Inc.; the Liggett Group; and the United States Tobacco Company, the biggest maker of snuff. BATUS Inc., onetime owner of the Kentucky-based Brown & Williamson, was also named. (It is now owned by BAT Industries.)
The complaint charged that the companies engaged in fraud and deceit by misrepresenting that nicotine is nonaddictive; were negligent in not accurately describing their products; violated consumer protection statutes; breached an express warranty that their products were not addictive and an implied warranty that their products were fit for consumption; and caused intentional, emotional distress on those who smoked their cigarettes. The suit sought compensatory and punitive damages, plus funds to treat smoking-related diseases. The total amount was impossible to calculate; if each addicted smoker received only $5,000 for medical monitoring, it could run to $100 billion, or more than twice the annual revenues of the industry.
Paragraph 32 of the fourteen-page Castano lawsuit listed the reasons why the lawyers believed it should be clear to anyone that nicotine is an addictive drug: at least two-thirds of adults who smoke say they wish they could quit; 17 million Americans try to quit each year, but fewer than one out of ten succeed; eight out of ten smokers say they wish they had never started smoking; after surgery for lung cancer, almost half of the smokers resume smoking; among smokers who suffer heart attacks, 38 percent resume smoking while they are still in the hospital; even when a smoker has his or her larynx removed, 40 percent try smoking again; 70 percent of young people between the ages of twelve and eighteen who smoke say they believe they are already dependent on cigarettes; and 40 percent of high school seniors who smoke regularly have tried to quit and have failed.
Although Gauthier was the unchallenged leader of the group, he deferred to his old friend Melvin Belli when the moment came for a press statement. “Thirty years ago,” Belli bellowed, “I filed the first suit against these same tobacco companies in the same city, New Orleans. We lost because we couldn’t prove the addiction of nicotine then, but now we will prove that the tobacco industry has conspired to catch you, hold and kill you … all without a moment of self-examination.”
The tobacco companies, defiant and confident as ever, predicted the suit would fail. It was being brought by a band of money-grabbing plaintiffs’ lawyers, they said, and was no different from previous attempts. Gary Long, a Kansas City attorney and spokesman for Philip Morris, said the company was “not surprised that a group of plaintiffs’ lawyers had quickly jumped on the bandwagon created by ABC’s television program and the comments of David Kessler. Addiction claims have been made previously in many cases against cigarette companies, and the companies have prevailed,” he said. Peggy Carter, manager of media relations for R. J. Reynolds in Winston-Salem, North Carolina, also rejected the claims in the suit. She said government and industry research showed the amount of nicotine in cigarettes had dropped by 60 percent over the last forty years as consumers had demanded lower levels. What she failed to explain was that this process is automatic; when tar levels are reduced with filters, nicotine levels drop, too. The companies, long concerned that the nicotine would fall below a level that kept the smoker “satisfied,” as they put it in the internal reports, had made the necessary adjustments.
The launching of Gauthier’s suit, then the biggest legal challenge the industry had ever faced, was greeted with jubilation among the antismoking groups. “I think the moment has come,” forecast Professor Richard Daynard. A more sober view was that Gauthier’s group, with all its celebrities in the plaintiffs’ bar, would get a lot of publicity, but that the issue was still one of smokers and choice. Gauthier’s group would indeed make a lot of noise, and its contribution would be invaluable to the antitobacco forces trying to soften up the enemy, a process that continued throughout the spring of 1994.
Two weeks before the Castano case was filed, the Florida District Court of Appeal had given the green light for the first class-action suit on so-called secondhand smoke. A flight attendant named Norman Broin, who was battling cancer, represented the suit brought by 60,000 flight attendants and filed originally in 1991 by a Miami lawyer, Stanley Rosenblatt, at the end of the Second Wave of tobacco
litigation.
Then, on May 7, 1994, The New York Times ran the first of a series of articles based on thousands of pages of internal company documents that had been stolen from Brown & Williamson, the nation’s third-largest tobacco company. B&W, which makes Viceroy and Kools, is a wholly owned subsidiary of the British tobacco company BAT Industries. The story, headlined “Tobacco Company Was Silent on Hazards,” focused on a 1963 memo from B&W’s general counsel, Addison Yeaman. In an admission that was contrary to all public statements ever made by tobacco industry officials and was to become the most oft-quoted sentences from the whole collection of documents, Yeaman wrote, “Moreover nicotine is addictive. We are then in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.”
That was only the beginning. Yeaman had made another observation that was very important for the antitobacco forces. He suggested that B&W own up to the fact that cigarettes cause cancer, remove the offending substances through a filter or by other means, and sell a safer cigarette. This was exactly the kind of evidence Gauthier was looking for.
* * *
IN MISSISSIPPI, on May 23, Mike Moore filed his four-count charge against the industry in Pascagoula. In the complaint, Moore contended the “tobacco cartel” had been reaping billions of dollars from Mississippi’s citizens by selling them cigarettes without informing them of the “true carcinogenic, pathologic and addictive qualities” of those cigarettes. “Instead of honestly disclosing the genuine risks of smoking cigarettes, the tobacco companies have spent billions in slick, sophisticated marketing techniques designed to make smoking appear to be glamorous to our youngsters. In equity and in fairness, it is the defendants, not the taxpayers of Mississippi, who should pay the costs of tobacco-related diseases.”
Moore went on to warn that the lawsuit would cause a “public relations and legal onslaught by the tobacco companies the likes of which Mississippi has never seen. These people wrote the book on dirty tricks … watch out for lies and slander. The tobacco companies will try to hide their fingerprints by creating front groups with innocuous-sounding names like ‘Mississippians For Truth and Justice,’ or ‘Mississippians for Fair Public Health.’ Don’t take a name at face value. Follow the money trail. Look at the background and business interests of the people doing the attacking.”
Moore was right. The industry would oppose him with all the forces they could muster. Moore’s own governor, Kirk Fordice, whose political campaigns had been supported by the industry, would become Moore’s main opponent. But the new front had been opened up. Florida would be next, with a special state law authorizing the state to recoup Medicaid costs from the industry. Massachusetts would pass a similar law. West Virginia, Louisiana, and Texas would follow with Medicaid suits within a year. With the Castano case now leading the charge, the Third Wave was rolling across the continent.
3
THE DRAMA TEACHER
A man may see how this world goes with no eyes. Look with thine ears. See how yond justice rails upon yond simple thief. Hark in thine ear. Change places and, handy-dandy, which is justice, which is the thief?
—Shakespeare, King Lear
THE OLD MUSTANG CONVERTIBLE looked a little seedy. Its driver appeared to be in his fifties, plump with unkempt sandy hair and a boozer’s ruddy complexion, the description I had been given, more or less. But the car did not stop at the French café where I had been told to wait for him. It kept going down the street.
A few minutes later, the car passed by again and I got a better look at the driver. I was now convinced he was the man I had come to meet. This time the car stopped. The man got out and walked toward the café, wearily. He looked like someone who’d been up all night.
“I’m Merrell Williams,” he said as we shook hands. “Sorry I’m late, but I had to see if anyone was following me.”
“They’re still following you?” I asked, surprised.
“Oh yeah,” he said, “they’re there. They’ll probably always be there. They like to know everywhere I go and everyone I meet; essentially everything I do.”
* * *
TWO YEARS after he had been hailed as America’s most famous secret “leaker” since Daniel Ellsberg released the Pentagon Papers, Merrell Williams was still on the run. He believed that the tobacco company Brown & Williamson of Louisville, Kentucky, from whom he stole thousands of confidential memos and research papers, would never leave him alone. And he had good reason to be concerned. Since 1993, when he gave the papers to the Pascagoula plaintiffs’ lawyer Dick Scruggs and they had ended up on the World Wide Web, the company had chased him out of Kentucky with a court order so strict that he couldn’t even talk about the documents to his legal counsel. The tobacco lawyers had deposed him eight times to try and find out exactly what documents he had taken and what he had done with them. The more Williams refused to answer the company’s questions, using his Fifth Amendment right against self-incrimination, the more the company pursued him. He was convinced they tapped his phone, followed him, watched him come and go through binoculars from secret hiding places. He was sure they would find a way to put him in jail one day, if he didn’t meet with an “accident” before somebody nabbed him.
He was famous in this little seaside town of Ocean Springs on Mississippi’s Gulf Coast, far from the commercial and political centers of the United States where he had caused such a stir. Before I met him, I had been round the corner from the French café to a little shop called Favorites: Books, Art, Etc. and had bought Smokescreen, a new book by The New York Times reporter Phil Hilts, who was the first to track Williams down and to write about the documents he had stolen. “Williams was in here yesterday and bought a copy of the book,” said the nice woman who owned the store. “He lives here, you know,” she added quietly as though this was privileged gossip. “Won’t say a word,” I felt like replying, marveling at how the exploits of Merrell Williams were still fostering an air of mystery and intrigue.
Like most corporate whistle-blowers, Williams was viewed as part hero, part fool, and always regarded with suspicion. Is he mad, or does he really have a social conscience? Is he out for personal gain? Or does he simply crave attention? In the 1960s and 1970s the first American whistle-blowers exposed toxic chemical dumping, unsafe drugs, and asbestos diseases and were often branded as leftist troublemakers: Karen Silkwood and her documentation of unsafe practices at the Kerr-McGee nuclear power plant in Oklahoma is one case.
Merrell Williams’s stolen documents were certainly in this category. What he extracted from Brown & Williamson’s confidential files had never been unearthed in forty years of litigation against the tobacco industry. The papers would be vitally important to those seeking to change the way the industry does business and especially to the anti-tobacco lawyers in the Third Wave. But tobacco was not nuclear power; Williams was a dissident in an industry that most people readily accepted as an essential, even desirable part of human culture, a big taxpayer and a key prop of American agriculture.
By liberating evidence of wrongdoing from the files of the tobacco industry, Williams was not destined for instant social sainthood. There was no guarantee that he would even become a national hero; just the grim prospect of prolonged litigation as the industry tried to make him the issue, not the documents. His decision to steal them in the first place was filled with conflicting motives, and then his second decision to hand them over to plaintiffs’ attorneys suing the tobacco industry was complicated and probably will always be somewhat unclear.
* * *
IT WOULD BE FAIR to say that prior to 1993, little in Merrell Williams’s half century of existence gave any hint that he would one day be famous. He was born in Louisiana into a middle-class family. After leaving high school, he had drifted in and out of colleges, jobs, and marriages. At one point, he was enrolled in drama classes at Baylor University, Waco, Texas, and dedicated himself to acting. Although he was, and clearly still is, rather accomplished at theatricals, he has not been
on stage since his college days. Then, his appearances were interspersed with bouts of drinking and carousing as a member of a group of campus rebels who had united under the banner of the Brazos River Society, named after the river that flows through Waco. Among other pleasures, Williams smoked cigarettes—one of his favorites was Kools, a Brown & Williamson brand. He had a brief spell in the army, where military discipline and his own freewheeling lifestyle clashed in a terminal fashion one day only four months after he had joined up. Williams wanted to help a fellow private whose thumb had got stuck in the trigger mechanism of his M-1 rifle. The drill sergeant thought the unfortunate soldier should bear the pain without aid. Williams thought otherwise. The sergeant won, of course. Williams showed his disgust by rushing the sergeant and beating him on the head with his helmet, an act of foolishness that was put down to the excessive heat that day. He was honorably discharged shortly afterward.
Out of the service he went to Ole Miss (a decade before Scruggs and Moore). He showed promise in the liberal arts, earning a bachelor’s and a master’s degree in the same year, 1966. He met Noni, a law student, on a Tuesday and married her the following Saturday. The marriage was to last for nine years while he went on to the University of Denver and earned a Ph.D. in drama. He returned to Mississippi and taught at small colleges but was bored and unmotivated—by the subject and the students and by the meager financial rewards. He soon gained a reputation for being late for class and leaving early. In the late ’70s he lost his job and moved to Oxford, an elegant university town. An old-car enthusiast, he tried importing classic cars from England and for a brief period ran an Irish-style pub. There he met his second wife, Mollie, a singer twelve years his junior. That marriage was to last ten years, and there were two daughters. The pub went bust, and Williams moved down to the Gulf Coast, where he then dreamed of becoming a shrimper.
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