Hardy, by contrast, had formed his opinions in the American heartland, in his hometown of Kansas City. He took up the challenge to defend the tobacco industry as though he were going to war, with plaintiffs’ lawyers as “the enemy.” His solutions were rigid and authoritarian: as far as he was concerned, the only way for the industry to survive legal challenges and governmental regulation was to put severe restrictions on the flow of company information. Company scientific research should be locked up, he believed. He saw no place for the radical solution offered by Yeaman.
The debate spread throughout the industry, and the result set the tobacco companies on a course that assured their legal superiority throughout the First and Second Waves of tobacco litigation.
* * *
IN EARLY 1963, the tobacco companies were in urgent discussions about how to deal with the upcoming report on smoking and cancer from President Kennedy’s Surgeon General, Luther Terry. Several thousand studies had by now been published, and the word was that Dr. Terry’s report would declare that smoking was not only bad for you but would declare officially for the first time in America that it was the cause of lung cancer. It was the most devastating attack on the industry since Ernst Wynder’s mouse-painting study, a decade earlier.
At the same time, two of the latest BAT research reports on Yeaman’s desk explored nicotine’s strange dual action on the brain as a tranquilizer as well as a stimulating drug. This function was to become known as “Nesbitt’s Paradox,” named for the young Columbia University student, Paul Nesbitt, who first measured this phenomenon under laboratory conditions using a group of college students. The new British research, which had been carried out in private at the Battelle Memorial Institute in Geneva, Switzerland, was codenamed “Hippo.”
The Hippo study involved animal experiments that observed the action of nicotine on the hypothalamus, a part of the brain then attracting much attention among medical researchers because of its apparent control over the pituitary gland, the body’s so-called master gland. The body’s normal defense against stress is to release hormones, known as corticosteroids, from the adrenal system through a complex joint action of the hypothalamus and the pituitary. Determining exactly how all this happens was then at the cutting edge of medical research. What concerned the tobacco industry was whether the adrenal corticosteroids, introduced as wonder drugs to cope with stress, might be better than nicotine, perhaps even replace it one day. The results of Hippo, however, showed nicotine was superior because it had fewer side effects, as long as it wasn’t smoked, of course. As a bonus it also proved to be an appetite depressant, a property not exhibited by the other tranquilizers.
Although it had been known for years that smoking reduced the appetite—a fact army generals had observed since World War I—the complex chemical changes were not fully understood. It was now clear that nicotine degraded fatty acids. The Hippo experiments, which concluded that “nicotine is actually one of the most potent drugs against obesity,” were well ahead of their time and preceded published accounts by two decades.
At the same time the Hippo results reached Yeaman, the research labs at Brown & Williamson produced a new filter that showed real promise in being able to keep out some of the more harmful constituents of tar. Straying well beyond his legal brief, Yeaman now seized on the seemingly beneficial effects of nicotine, plus the new filter, as a way to make a radical shift in the industry’s defensive public relations strategy and create its “first effective instrument of propaganda.”
In a two-thousand-word memo on company policy dealing with the upcoming Surgeon General’s report, Yeaman made it clear that he had never been a fan of Dr. Little’s approach because it seemed that sooner or later some combination of the constituents of tobacco smoke would be found to produce cancers. If the industry wanted to preserve its present “earnings position,” it should either “disprove the theory of the causal relationship, or discover the carcinogen or carcinogens, co-carcinogens, or whatever, and demonstrate our ability to remove or neutralize them.” If the industry admitted what had become clear to the rest of the medical and scientific community, it could then move on to the business of producing a cigarette with fewer harmful substances and begin to extol the virtues of nicotine as laid out in the Hippo reports. At that point, said Yeaman in the most oft-quoted sentence from the Merrell Williams collection, “We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.”
Yeaman suggested the industry should embark on “massive and impressively financed research into the etiology of cancer as it relates to the use of tobacco.” This research should probably be a cooperative effort with the Surgeon General, the Public Health Service, the American Cancer Society, the American Heart and Lung Associations, the American Medical Association, and any and all other responsible health agencies or medical or scientific associations concerned with the question of tobacco and health. Once that was set up, the industry would be “free to take a much more aggressive posture to meet attack.” It might, for example, stress the gaps in the scientific knowledge while showing it was doing all it could to close them—not just being party to a public relations front like Dr. Little’s old TIRC. It could stress the “benefits” of nicotine over the new tranquilizers. B&W’s new filter offered a “bridge,” Yeaman argued, over which the industry might pass from its present defensive position to a counterattack.
There was a legal danger, of course. By admitting a health problem, the industry might worsen its chances in lawsuits. But Yeaman pointed out that with one exception the lawsuits against the tobacco companies had all been won relatively easily by the traditional defense of placing the assumption of risk on the smoker. The exception was Green v. American Tobacco Company.
Edwin Green had started smoking Lucky Strikes in the 1920s, when he was sixteen, and smoked up to three packs a day until 1956, when he was diagnosed with lung cancer. In 1957, Green filed a $1.5 million lawsuit in a Florida state court against Lucky Strikes’s manufacturer, the American Tobacco Company, charging that by selling the product, the company had implied a warranty of fitness and should be held liable for any damages incurred. The jury concluded that Lucky Strikes had in fact caused Green’s lung cancer, but awarded no damages because, they said, the company could not have known prior to the date Green’s cancer was discovered that smoking Lucky Strikes would cause it.
The verdict was appealed on the grounds that Florida state law did not require the defendant to be aware of the dangers of its product in a suit involving implied warranty. A new trial was ordered. This time the judge ruled that the company could only be held responsible for breach of warranty if the cigarettes endangered an important number of smokers, not just one. In other words, Green’s case was not enough to condemn an entire industry. Faced with finding whether cigarettes were dangerous to the general public, the jury found for the company, but it was a narrow escape for American Tobacco and the case caused great concern in industry boardrooms.
The question Yeaman had to address was how to ensure continued success in lawsuits after an admission that smoking caused disease. Not wanting to be, as he put it, “tarred and feathered” by his colleagues, Yeaman made what he called the “shocking” suggestion of putting a warning label on the cigarette pack. (As yet there were no labels; they were introduced in 1966 as a result of the Cigarette Labeling and Advertising Act, 1965.) Yeaman thought a suitable legend might be something along the lines of “excessive use of this product may be injurious to the health of susceptible persons.” The companies could then point to the warning as evidence that the smoker had assumed a known risk.
People who smoked prior to the 1966 labeling date could and would continue to make claims, but the Green case suggested the companies could put up a viable defense that they could not have known of the dangers before the labels were put on cigarette packs. Yeaman recognized that there was another problem: although the buyer might be found negligent in smoking a product he kne
w was dangerous, he could still claim that the seller’s negligence was the greater in failing to make his product safe. In that case, it was important to establish a new “massively financed” joint research organization with independent research groups to produce a “safe cigarette.”
Yeaman had not suddenly turned into a public health advocate. As he had said, his plan was to find a way of keeping “earnings up.” As the industry was in the “nicotine business,” whatever kind of new, cleaner, and more acceptable type of cigarette was produced would, he suggested, be one that removes “whatever constituent of smoke is currently suspect while delivering full flavor—and incidentally a nice jolt of nicotine.” This combination of admission plus commitment to new research would put B&W at a tremendous advantage over its competitors, said Yeaman. In case the marketing department of B&W had not got the message, Yeaman added, “And if we are the first to be able to make and sustain that claim, what price Kent?”
Such radical thoughts appalled B&W executives, not to mention BAT officials in London. None of them would admit to selling harmful products. Nor did they want their private research papers made public in any joint venture with a government or other research body. That much had already been made clear. All the tobacco companies had been invited by Dr. Terry to submit research papers to his review committees. There had been an anxious discussion inside BAT and B&W as to whether the Hippo reports and the B&W filter should be presented. In London, BAT executives had been impressed by their laboratory confirmation of the tranquilizing and antiobesity effects of nicotine but wanted to do more research before they told anyone. In Louisville, B&W’s CEO, Ed Finch, worried about the Hippo report’s mention of cardiovascular disorders. Researchers already knew that nicotine could increase heart rate and contribute to high blood pressure. The carbon monoxide in cigarette smoke was found to encourage the formation of atheromas, the fatty plaques found in the arterial walls that contribute to the blockage of blood supply to the heart. At this point, researchers didn’t know how significant smoking was in the creation of heart disease. In the end, none of BAT’s or B&W’s expert knowledge was passed to the Surgeon General’s committee.
Six months after Yeaman’s memo, in January 1964, Surgeon General Luther Terry published his report declaring cigarette smoking was causally related to lung cancer in men and cigarette smokers had a higher rate of coronary heart disease. The in-house lawyers of the six biggest tobacco companies, R. J. Reynolds, the American Tobacco Company, Brown & Williamson, Philip Morris, Liggett & Myers, and Lorillard, began immediate action to counter what they expected would be a flood of new lawsuits. They formed a new policy body known as the Committee of Counsel to guide company policy on research into smoking and health. This body was supported by six lawyers from outside firms who formed what was known as the ad hoc group, which was chaired by David Hardy. These outside law firms began compiling lists of medical and scientific literature specifically for use in litigation. R. J. Reynolds, then the company with the biggest market share (36 percent, American was second with 23 percent, and B&W was third with 11 percent), had more than 20,000 scientific papers on record by the summer of 1964.
That fall, the two British tobacco-industry researchers, Philip Rogers and Geoffrey Todd, who had toured the companies and interviewed officials, wrote of the dilemma posed by the lawsuits in the United States. “The manufacturers have to choose,” they said, “between (a) doing no smoking and health research and being represented in lawsuits as negligent … [and] (b) doing smoking and health research and being forced to admit in lawsuits that their experiments have caused cancer in animals and yet they have made no changes in tobacco smoke to eliminate the tumors. The manufacturers have chosen (a).”
Like Clarence Little, Hill & Knowlton would find themselves ignored in the aggressive lawyer takeover. The PR agency found it increasingly difficult to provide workable counterattacks to what was now the consensus of scientific thought: that smoking was a cause of lung cancer and probably also of heart disease. But the Hill & Knowlton executives also found the industry increasingly reluctant even to talk about their problem. “We had influence on policy at the beginning,” recalled Loet Velmans, who had begun working at the agency during the health scare of the mid-1950s and later became H&K’s chief executive officer. “We could consult with [the client], on what areas of research more specifically to look at, in terms of lung disease and, later, heart disease [but post-1964] the client shut us out after a couple of years, because he probably knew more than he would ever admit.” The agency’s original enthusiasm for defending the tobacco industry quickly faded. Velmans recalled, “Hill & Knowlton’s position was, ‘What are we doing in all this? We are only raking in money. But we are a privately owned company; we’ll get another account or two, and we’ll replace that.’” After a decade of promoting the U.S. tobacco industry as a caring concern that spent millions ensuring that smokers were not taking undue risks, the agency closed the account. Another Madison Avenue firm, Leonard Zahn, took over but they were never as important as H&K had been. The lawyers were now in charge.
The decade following the Surgeon General’s report would see the rise to extraordinary prominence of a group of industry lawyers led by David Hardy. There would be no admission of the harmful effects of smoking, no acknowledgment that nicotine is addictive, no massive research to find the cancerous substances in tobacco smoke, and no policy to develop a “safe cigarette” as free as possible from carcinogenic compounds. Instead, in-house scientific reports would be monitored, censored, and hidden from public view in a scheme to keep the fabulously lucrative enterprise alive and free of government regulation.
* * *
HOW A SMALL LAW FIRM located hundreds of miles from the tobacco fields and cigarette factories of Virginia and the Carolinas became the industry’s favorite defender was a chance affair.
In 1962, a Missouri man named John Ross, a heavy smoker of Philip Morris brands, lost his larynx to cancer and filed suit against the company in Kansas City. The first local lawyer chosen by Philip Morris as lead counsel for the defense was appointed a federal judge and had to withdraw. So their second choice, Dave Hardy, got the job. A native of rural Tipton, Missouri, Hardy was the epitome of a small-town American—wholesome, comfortable, confident, and driven. He worked such long hours that his nickname was “Fourteen-hour-a-day Dave.” He had become a successful trial lawyer, and by the time Philip Morris came along, his firm had a score of partners.
For the Ross case, Hardy’s long hours of homework paid off. By the time he had finished his defense, it took the jury of twelve smokers only an hour to conclude that Ross had not proven his cancer came from Philip Morris cigarettes.
From that moment, Philip Morris basically adopted the firm of Shook, Hardy & Bacon. With this lucrative tobacco business, the firm blossomed from a modest practice into an international enterprise with 175 lawyers and scores of specialist researchers, biochemists, statisticians, and veterinarians—the full arsenal of the tobacco defender—making it the largest law firm in Kansas City. Soon, there would be offices in London and Zurich. The firm would successfully represent five of the Big Six tobacco companies—American, Brown & Williamson, R. J. Reynolds, Philip Morris, and Lorillard, plus the Tobacco Institute, the industry’s PR arm in Washington, D.C.
The firm’s offices reflect its success, with tasteful furnishings in mahogany and marble. Security is tight, especially on the twenty-fourth floor, where the tobacco lawyers meet. The elevator leads to a long corridor with locked offices and a reception area with no receptionist.
Dave Hardy, who was a Marlboro smoker, died of a heart attack in 1976 at the age of fifty-nine. A portrait of him hangs in the attorneys’ lounge. Hardy’s son, another David, now leads the tobacco team. About one hundred of the firm’s lawyers work in the tobacco division and over the years they have always commanded the respect of their colleagues. There was a time when even nonsmoking Shook, Hardy partners carried cigarette packs in their shirt pockets or
briefcases out of solidarity. Even now antismoking gestures are frowned on. The story is told that when a Shook, Hardy lawyer showed his colleagues a Doonesbury antismoking strip of Mr. Butts, his superiors “looked at him like he’d brought out a dead animal.” Moral pangs about the ethics of tobacco work, if indeed there are any, are not supposed to surface. “You don’t buck tobacco,” said one former partner.
Dave Hardy’s service to the industry spanned the First Wave of tobacco litigation—from the mid-fifties into the seventies. It was a period that included the time when BAT’s British laboratories were busy experimenting with the effects of tobacco tar on mice and also researching the effects of nicotine. The results were openly discussed at BAT research conferences and copies of the scientific papers were sent to B&W’s Louisville headquarters for distribution among its research staff. These internal “leaks” of potentially damaging research caused concern on both sides of the Atlantic.
Changes in the Federal Rules of Civil Procedure governing pretrial discovery had made it easier for plaintiffs’ to get copies of such documents. The tobacco company lawyers worried that a smart plaintiffs’ counsel might uncover embarrassing reports by deposing a company employee, or by imaginative “interrogatories”—written questions that require answers under oath. These procedures could put BAT itself at risk. Even though the British company was in London, it was not free of the American states’ “long-arm” statutes and could be brought into litigation if a plaintiff’s lawyer had enough resources to try. BAT had already been named in one tobacco case in Chicago, but the anti-tobacco lawyer had made a mistake in the filing, alleging that BAT manufactured, marketed, and sold B&W brand cigarettes in the state of Illinois, which BAT did not. If the plaintiff’s lawyer had used some other legal language, such as “by and through its agent and wholly owned subsidiary, B&W,” then BAT might have remained a defendant in the case. In any event, B&W’s legal department in Louisville had asked Dave Hardy, by now a veteran defender for the industry, to write a legal opinion on these tricky issues. Hardy was sent a number of BAT research reports to help him formulate the best approach. His reply not only advocated continuing the cover-up started by Dr. Little, but also suggested that research scientists who made “careless” comments about their work should be warned of the “consequences.”
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