Cornered
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Whatever was discussed, and whoever was present, the facts are that on April 15, Williams and Scruggs flew in Scruggs’s private Learjet to Orlando, where Williams had deposited a copy of his documents with a friend for safekeeping. Williams arranged for the friend to bring the three boxes of documents from her house to the airport and have them transferred to the hold of Scruggs’s plane. That way, technically, Williams did not personally hand over the documents and, therefore, technically was not in violation of the Louisville court order. Scruggs also found his own reason for not returning copies of the papers to B&W—which would have been the proper legal thing to do. Instead, he relied on an important exception in the law. If private company documents show evidence of fraud, then legal niceties covering their return to company headquarters, including the sanction of attorney-client privilege, go by the board. Scruggs asked Mike Moore and Don Barrett down to Pascagoula to join him when he opened the boxes and, in their minds at least, there was evidence of possible criminal wrongdoing.
Williams was later hired by Scruggs’s own law firm. Scruggs also arranged for Williams to have a car and a small sailing boat. “I wanted to make sure Merrell was protected,” Scruggs would say. “Merrell was penniless and very ill from his surgery. He was frightened. I wanted to make him secure in Mississippi from the retribution and the revenge of the tobacco industry, so I’m glad I have been able to play a role in that.”
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ON APRIL 14, the day before the document exchange in Orlando, seven CEOs of tobacco companies testified before the Waxman committee in Congress. One by one they took an oath and swore their belief that nicotine was not addictive. Now, with Williams’s documents in hand, Scruggs told his colleagues, “These guys are toast.” The official version of what happened next is that Scruggs showed the papers to Moore, who quickly understood that the documents suggested a massive fraud against the public health. The two men then hopped into Scuggs’s Learjet and flew a copy of the documents to the Waxman committee in Washington. They actually flew to Washington with the papers on May 6, but a copy of the documents was with Waxman by the time they got there—courtesy of John Coale and Wendell Gauthier.
Uncertain how to handle the documents initially—after all, they were under a gag order—Scruggs and Barrett called Gauthier in New Orleans. Gauthier suggested Barrett bring the documents to the next Castano executive committee meeting and read out some of the better ones. There would be nothing wrong in that because the meeting included only lawyers and everything was privileged. They would then decide what could be done with them. Scruggs was not a member of the Castano group, but Barrett was. At the second meeting of the Castano executive committee in Coconut Grove in Miami on April 21, Barrett got up and started reading from the more sensitive documents. There was silence in the room. Barrett said he planned to give the documents to a state official (actually Mike Moore, although he didn’t say so) and perhaps a newspaper in Biloxi. Coale, hearing the documents for the first time, grabbed Wendell and took him out into the hall. “You’ve got to get me a copy,” he told him. “I can make hay with these in Washington. Taking them to a state official is crazy. This is information, and in D.C., information is currency.” At the time, neither Coale nor anyone else outside the tightly knit Mississippi group of Scruggs, Moore, Barrett, and Motley knew that Moore was getting ready to file the first Medicaid lawsuit.
Gauthier and Coale copied a set of Barrett’s documents. Neither Gauthier nor Coale knew at the time where they had come from, and the first time they heard the name Merrell Williams was several weeks later from another Phil Hilts story in The New York Times. Coale thought the documents had probably come from another case, maybe Cipollone in New Jersey. Coale had a contact in the office of Congressman Ron Wyden, Waxman’s deputy on the committee. Coale called the contact and said, “These are the smoking guns you guys want.” In return, Coale said he wanted a line to the committee hearings to know what was going on. The next day, Coale FedExed a copy of the documents to Wyden’s office. Back in Washington, Coale then ran off several more copies and started sending them to the media. This was not yet the full set, only a few hundred pages of the best documents Barrett had pulled from the three boxes of material.
The first member of the media to get the documents was Phil Hilts, who reports on medical and science matters for The New York Times. In late April, he received a call in the Times’s Washington bureau from a government official who said he had internal documents about the tobacco industry. He asked Hilts to his house that evening; he didn’t want to come to the Times. When Hilts arrived, the documents, about a hundred of them, were laid out on the official’s dining-room table. They appeared genuine, and Hilts set about checking names, dates, and events. In fact, they were copies of the ones Coale had given to Wyden. On May 7, Hilts wrote what was to be the first of several newspaper stories about Williams’s documents. This one was headlined, “Tobacco Company Was Silent of Hazards,” and was based on the Addison Yeaman memo that had so shocked Scruggs, among others. Hilts’s story said only that the documents had been stolen by a former employee of a law firm doing work for Brown & Williamson. Regional papers—including the Louisville Courier-Journal—picked up the story. It was Kentucky Derby day, and Williams got a call from his estranged wife, Sherry. “You’re all over the papers where the horses normally are,” she told him.
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BROWN & WILLIAMSON tried desperately to plug the leak. At the company’s request, the Superior Court of the District of Columbia issued subpoenas to Congressmen Waxman and Wyden to appear before B&W’s attorneys “for the purpose of inspection and copying of all alleged B&W and affiliated companies’ documents” in their possession. Members of the media who had written stories about the documents also received subpoenas, including The New York Times, The Washington Post, National Public Radio, CBS, and the National Law Journal. Waxman was stunned. “It was quite remarkable, not only had I never received such a summons, I had never heard of a committee chairman being subpoenaed by the target of its own investigation.”
The congressmen protested to the D.C. court and Judge Harold Greene ruled that B&W could not order members of Congress to appear anywhere, and certainly not before the attorneys of a corporation under investigation by Congress. Judge Greene noted that the Constitution gave immunity to members of Congress “for any speech or debate in either House” and that the so-called speech or debate clause had been broadly read to include everything “generally done in a session of the House by one of its members in relation to the business before it” as well as “those matters that are an integral part of the deliberative and communicative processes.” That included material gathered for the investigation, said Judge Greene, and he agreed with Waxman and Wyden that forcing them to release the documents could reveal the identity of their source to whom they had promised confidentiality. Breaking this promise would deter other sources from coming forward.
B&W had argued that it was only trying to recover stolen documents, but Judge Greene wasn’t buying that explanation. As no one had been found guilty of any criminal activity and the congressmen had not been involved in the acquisition of the documents, Greene focused instead on Williams, the whistle-blower. Here was a man trying to make public documents that were a matter of concern for the public health. That’s what the case was about, he said. B&W’s “simple yet ingenious strategy” of concentrating on the theft of the documents could have been obscuring a public health threat. He concluded, “One may well doubt, to put it charitably, that B&W would be mounting a tremendous and costly effort in Kentucky and in the District of Columbia, in proceedings against members of a Congressional committee and against the mass of the media, if the documents at issue did not represent the proverbial ‘smoking gun’ evidencing the company’s long-held and long-suppressed knowledge that its product constitutes a serious health hazard.” It was apparent, he said, that B&W was using the subpoenas “to intimidate and, in a sense, to punish” both Williams and the congre
ssmen for their efforts to reveal the truth. The D.C. court should have no part in “so high-handed a course of conduct, and one so patently crafted to harass those who would reveal facts concerning B&W’s knowledge of the health hazards inherent in tobacco.” For its part, the media claimed First Amendment privileges and the subpoenas against them were not pursued, but the threat of legal action remained against anyone who revealed the contents of the documents.
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MEANWHILE, Gauthier, Scruggs, and the fast-growing band of plaintiffs’ lawyers joining the antitobacco bandwagon were thinking of ways in which the Merrell Williams documents could be cleared for use as evidence in court. In January 1995, Ron Motley, the most persistent and energetic document hunter of the plaintiffs’ bar, was the first to refer to them in a court motion. Motley was representing Burl Butler, a nonsmoking, clean-living, God-fearing barber from the small town of Laurel, Mississippi (population 9,000). In 1992, Butler had been diagnosed with lung cancer, which he claimed he had contracted from the cigarette smoke of his clients in the barber shop. He sued R. J. Reynolds, Philip Morris, Brown & Williamson, and ten other companies, claiming personal injury, fraud, and negligence.
As in the Horton case, industry lawyers and private investigators descended on Laurel. Before they had finished, everyone who had ever known Burl, or been into his barber’s shop, his church, or his home, had been interviewed, and in the midst of chemotherapy, even Butler himself had undergone four days of depositions—the whole operation designed to find out if there was anything in his life that might have caused his lung cancer other than the smoke from his clients’ cigarettes. The company sought information about everything from his wife Ava’s recipe for gravy to the types of chemical fertilizers Butler might have been exposed to while plowing his father’s farm with mules as a child. One of the defenses used by the tobacco companies is that cancer is a “lifestyle” disease—people who are “risk-taking personalities” tend to develop cancers more easily than the shy and retiring types. The companies noted that Butler liked to hunt and, as if these might be factors, worked with power tools and had been known to eat red meat. The tobacco lawyers found that cancer ran in Butler’s family and they also discovered traces of cancer-forming fibers of talc in Butler’s lungs. In the past, Butler’s lawyers would probably have ended the suit right there; to pursue a case where talc, not tobacco, might be the cancer-forming agent looked even harder to win than many of the cases that had been lost. But the Merrell Williams papers had given the lawyers new confidence. Instead of dropping the tobacco companies, Motley added the talc companies to the suit.
Whatever had caused his cancer, Butler was dying from it, and tobacco lawyers wanted to be as close as they could to that event. On the day Butler died, a helicopter hovered over his house for no apparent reason and the unconfirmed story is that it was flown by agents for the tobacco company who were waiting for the ambulance to arrive to take away the body so that the company could be present at the autopsy. The company did ask to be present at Butler’s autopsy but later withdrew the request, apparently deciding that it wouldn’t look so good from the public relations viewpoint. Coincidentally, Butler died on May 7, 1994, the same day The New York Times published the first report on the Merrell Williams documents. His claim was continued by his wife.
Motley wanted to use several of the Williams documents in his case and argued in the brief that he should be able to because they had already been widely distributed by the media and also by the University of California at San Francisco, which had placed a full set of the documents in its library. Until Motley mentioned the university library, it was not generally known there was a copy in the archives. Certainly, Brown & Williamson had not known copies of the documents were there, and they lost no time in trying to get them back—and trying to discover how they had got there in the first place.
Within days of Motley’s brief being filed with the Mississippi court, the prevailing air of calm and scholarship at the university library was suddenly disrupted by the presence of two strange men seen hanging around outside the library’s special collections department, where the documents were stored. They were recording researchers coming and going. One of the men accompanied a woman colleague into the reading room to look at the papers. It turned out she was a paralegal from the local law firm representing Brown & Williamson. The men were private detectives. As the archivist, Florie Berger, came to work one morning, one of them said to the other, “That’s her.” Berger was so upset she called the university lawyer’s office, claiming the men, whoever they were, were intimidating her. University officials threatened to have campus police remove the detectives. They were withdrawn that day, but reappeared a few days later.
B&W filed a claim in San Francisco Superior Court to have the documents returned on the grounds that they had been stolen. The company sent Ernie Clements, who had been Williams’s supervisor at the document room at Wyatt, Tarrant in Louisville, to review the archive collection. He claimed all of them were confidential. The university refused to give them back, citing the company’s “cloak and dagger” operation as well as the academic and public interest value of the documents. Arguing that the documents had already been well aired in the media, the university lawyers said that to take them away from public view would be like “using a tin cup to bail water on the Titanic.” Eventually, the two sides reached an agreement that the documents would not be available to the public until the claim could be resolved. The university added that the documents had been sent anonymously to a member of the faculty.
That faculty member was Stan Glantz, a longtime antitobacco professor of medicine. Glantz is the very model of a sixties campus professor—witty, slightly rumpled, somewhat mischievous, and unashamedly political. He still drives the Dodge Dart convertible he bought in 1969. He trained as an engineer, actually a rocket scientist, and he had helped put men on the moon as a member of the space agency. He earned his doctorate at Stanford in engineering and economics, studying the heart muscle and other pump mechanisms. He is an editor of the Journal of the American College of Cardiology, one of the world’s leading heart journals, and he cares deeply about the public health, particularly that part of it which has been so consistently damaged by tobacco. At some point in his heart research, he looked at drugs that affect the pump rate, including nicotine. That’s how he came across the tobacco companies, and the more he learned about how they had concealed their own research and what they knew about nicotine’s effects on the heart, the more he began to despise them. Like other academics of his generation, he decided to step beyond the laboratory and the classroom and, in his case, devote his life to exposing the way the tobacco companies have consistently lied about their product.
For their part, the tobacco companies call him a zealot, a derogatory term for any scientist because it suggests a biased and messianic approach. On the other hand, it does describes the gusto with which Glantz goes about his work. He is a crusader, a progressive academic who believes fervently that big corporations must be made to act in the best interests of the public, and not simply of their shareholders. In the case of tobacco, this means stricter government regulation of the industry. To this end, Glantz has lectured, written papers, and attended conferences all over the world. In recent years, he had been interested in the effects of secondhand smoke—whether nonsmokers can be seriously harmed by being in the presence of others who smoke. He has also exposed the industry’s support of so-called grassroots smokers’ campaigns, and their funding and lobbying efforts in local state legislatures.
To Glantz, May 12, 1994, was a turning point in his mission. A Federal Express box containing four thousand pages of Merrell Williams’s stolen documents arrived at his office on the San Francisco campus at eleven o’clock in the morning. He had no idea where the box had come from. The sender’s name was “Mr. Butts,” the cartoon character in “Doonesbury.” No return address was given but, although Glantz didn’t bother to investigate who Mr. Butts was, he thought
it was probably Dick Daynard, from Northeastern University. So did B&W. The company tried to depose Daynard to find out if he had copies of the documents and whether Williams had violated his gag order in giving the professor another set. But the redoubtable Daynard was not to be intimidated and refused to comply with the court order. He argued that copies of the documents had been in circulation for almost a year and he could supply no material evidence. Moreover, he ran an information collection center for lawyers and public health officials and whatever information he obtained was private and of vital concern to government and congressional inquiries and, therefore, should be accorded First Amendment protection. B&W wanted the Massachusetts court to hold Daynard in contempt and compel him to appear, but the court declined. In fact, Mr. Butts was not Daynard; it was Don Barrett. He had sent a copy of the documents to Glantz after Scruggs had delivered them to the Waxman committee on Capitol Hill.
Glantz immediately saw how embarrassing the documents were to the industry, and to B&W especially. Many of them were about nicotine addiction. Others detailed a sophisticated legal and public relations strategy to ensure that the tobacco companies kept chalking up victories in court. His first thought was to send them to colleagues working in these areas, but word soon got out through the antitobacco grapevine that Glantz, as well as Waxman’s committee and the media, had copies of the documents. Because there was no single source of the documents, no one was quite sure—especially Brown & Williamson—whether anyone had a full set. Academics and reporters began arriving at the university to see if Glantz’s box of documents contained papers or memos that they hadn’t seen before, or read about in the media. His tiny office was hopelessly inadequate as a viewing room, so he decided to put them in the archives of the university library and there they stayed, available to anyone who cared to take a look, until Brown & Williamson discovered them.