Cornered
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The Fifth Circuit’s ruling came sooner than expected, but the findings were not a surprise. On May 23, the panel reversed Judge Jones’s certification. In a thirty-six-page opinion, the three judges agreed that variations in state law were too great—they adversely affected the conditions of “predominance” and “superiority.” They agreed with Starr that nicotine addiction as a cause of action needed to be tested in state courts before creating a national class. The addiction theory was too novel, said Judge Smith, who then took one extra step. He called the nicotine addiction claim an “immature” tort, which he defined as one that lacks a “prior track record of trials from which the district court can draw the information necessary to make the predominance and superiority analysis of Rule 23.”
This incensed Cabraser. In a paper for the American Bar Association, she would counterattack. In calling addiction an “immature tort” requiring experimentation in many trials, the judges, said Cabraser, had suited the tobacco companies’ “interests and preferences admirably.” It played directly into the industry’s legal strategy of wearing down the opposition. A single plaintiff was likely to find the cost of litigating an addiction claim so much greater than the prospective award as to be of “negative value.” It would cost much more than could possibly be gained in damages. Therefore, the plaintiff would be deterred from taking action. This had been the experience of the First and Second Waves of tobacco litigation. Cabraser concluded that scientific-sounding concepts such as that of “immature tort” were in fact attractive “catch phrases” that were “largely unsupported by any widely accepted body of evidence or jurisprudential consensus. In short, immature tort is an immature concept.”
The Harvard Law Review agreed. Judge Smith’s adoption of the maturity test was “decidedly premature,” said the Review. “More importantly,” it concluded, “Judge Smith’s ability to subsume his distaste for novelty within the ostensibly objective maturity label raises the concern that judges may use the maturity test to implement their personal beliefs about the appropriateness of the class action.” That was Cabraser’s point, too.
Concluding her attack, she said that it appeared, “at least to the ‘losing side,’ as essentially a value judgment, in which one court’s view of the merits of the case has become inextricably entangled with the neutral procedural principles of Rule 23.”
The companies were jubilant and used the Fifth Circuit decision to castigate the liability lawyers. R. J. Reynolds said the rejection of Castano sent “a strong message that class actions created by entrepreneurial plaintiffs’ lawyers will not be accepted by the courts”; Brown & Williamson said the signal was clear: “Stop the insanity in our nation’s courts”; the ruling had declared “loud and clear to those who would twist the process to their own advantage that the line, indeed, had been drawn.” Wall Street was happy, as well. “The class-action risk is gone,” declared Gary Black.
* * *
AFTER THE FIFTH CIRCUIT DECISION, the tobacco companies no doubt hoped that Castano would die: that Gauthier’s stunts would end and that the last had been heard from John Coale, Stanley Chesley, Ron Motley, and the others. But the Castano consortium had $2.2 million on hand and $1.5 million coming in every three months from the sixty law firms involved. Expecting to be turned down by the conservative Fifth Circuit, Gauthier and his colleagues had already prepared a contingency plan. They started to file “son of Castano” cases in every state in the nation. The Third Wave’s oracle, Professor Daynard, forecast it would be like the Sorcerer’s Apprentice—break one broom and two more appear, and then four and then sixteen and so on. Indeed, within five days, two such cases were filed—one in Louisiana and another in Maryland. Two months after the Fifth Circuit decision, there were seven such cases, including the District of Columbia, Indiana, Mississippi, New Mexico, and New York.
These cases would not recapture the media magic of the early Castano days; filing lawsuits in state courts is an uphill struggle, opposed at every turn by the industry. Gauthier held the line, even so. When the antitobacco forces massed in the spring of 1997 to negotiate a so-called global settlement with the industry, Gauthier, Stan Chesley, John Coale, and Russ Herman were all there, fighting for compensation for the nicotine addicted smokers of America—and, of course, for their attorneys’ fees. Ron Motley, the wild card in the Third Wave, would leave the Castano camp and become a leader of the mass offensive of the thirty-nine states suing the industry for Medicaid costs. As such, he would play a key role in the end game the attorneys general played in the summer of 1997.
14
THE MAN ON THE PINK BICYCLE
Somebody needed to take these people on. A lot of people are dying of cancer.
—Grady Carter, August 9, 1996
It’s hard for me to understand why this hasn’t occurred sooner.
—Samuel Gaskins, retired postal-service supervisor and foreman of the Florida jury that found Brown & Williamson guilty of negligence
THE PHONE CALL from the courthouse came in midafternoon. The jury had reached a verdict. On any other such day, Woody Wilner, a winsome, middle-aged lawyer in Jacksonville, Florida, might have mounted his shocking pink bicycle, stashed his court papers in the front basket, and peddled the four blocks, mostly downhill, from his law office to the Duval County Circuit Court. He had made this journey hundreds of times in the last twenty years. But August 9, 1996, would be different. Wilner’s career was at a turning point; so was the Third Wave of tobacco litigation.
The jury had been deliberating for more than a day on a claim for damages by Wilner’s client, Grady Carter, against the tobacco company Brown & Williamson. Carter, a retired air traffic controller, had lost the upper lobe of his left lung to cancer after smoking for forty years. It was the first tobacco case of the Third Wave to come to trial; the first time the Merrell Williams documents had been used in evidence, and it was Woody Wilner’s first-ever cigarette lawsuit. Wilner thought he had presented his case well. The jury seemed to have understood the issues and was not obviously inclined one way or the other. The judge had been fair, and Florida’s consumer laws were on his side. Even so, Wilner remained deeply respectful, even fearful, of the unbeaten record of the tobacco industry. He rated his chances of winning at only a little higher than fifty-fifty. As befit the seriousness of the occasion, Wilner left his bicycle at the office and drove to the court with Carter and his wife, Mildred.
The tiny courthouse, old and worn from decades of use, was packed with journalists, television crews, stock analysts, and lawyers. The tobacco company’s representatives looked confident, letting journalists know they would be available for comment when it was over.
Shortly after three o’clock, the six jurors, five men and one woman, ended nine-and-a-half hours of deliberation, and Judge Brian Davis asked the foreman, Samuel Gaskins, a retired postal-service supervisor, to read the verdict. The jury found the tobacco company negligent in selling Grady Carter an “unreasonably dangerous and defective product,” and they awarded Carter and his wife $750,000 in damages. The courtroom murmured with disbelief. It was only the third time a tobacco company had been ordered to pay damages. The first award was for $400,000 to the family of Rose Cipollone, and that had been reversed on appeal. The second was a $2 million award to a California smoker who had developed mesothelioma, a fatal form of lung cancer, which the smoker had attributed to the asbestos fibers in the Micronite filters of Kent cigarettes. That award was on appeal.
A smiling Grady Carter leaned back from his chair at the plaintiff’s table and squeezed Mildred’s hand. “Somebody needed to take these people on,” he said outside the court. “A lot of people are dying of lung cancer.” Wilner congratulated his client and thanked him for being courageous under fire from the tobacco company’s defense counsel. Wilner felt it was a close call, but he didn’t show it. “We proved ninety-nine percent,” he told reporters outside the courthouse. “I think you will hear carping about the one percent. Nobody’s perfect. You can’t prove ev
erything.” The tobacco representatives didn’t stay to be interviewed, after all.
The shockwaves hit Wall Street immediately: Philip Morris stocks tumbled 14 percent, RJR Nabisco dropped 13 percent. American Brands, which sold the Lucky Strikes brand to Brown & Williamson in 1995, and BAT, Brown & Williamson’s British parent, were also down. Overall, tobacco stocks lost $14 billion in value in a few hours.
In official statements, the companies were defiant. The verdict would be appealed, promised Brown & Williamson. The company claimed the judge had allowed inadmissable evidence, such as permitting Carter to speculate about what he would have done if there had been a warning before 1966 on cigarette packs. They also complained about Wilner’s insistence that the company should have marketed a “safer” cigarette. He had failed to offer any evidence of a design alternative, “much less one that would have avoided the plaintiff’s injury,” they said.
Philip Morris dismissed the verdict as an “aberration,” implying that this small-time lawyer was merely lucky, and it wouldn’t happen again. Stock analysts basically agreed. They thought that the Carter verdict would survive an appeal, but nothing in the Carter case necessarily meant Wilner could go on to win other individual cases. But questions remained: Had the antitobacco propaganda really changed the way juries viewed smokers? And what influence did the new evidence have on juries?
The only certain result was that if the verdict survived on appeal, Woody Wilner would receive his percentage of the award—he won’t say exactly how much—and scoop up $1.8 million in fees that the judge ordered the tobacco company to pay separately. He had become a star of the plaintiffs’ bar.
* * *
UNTIL THE CLOSING STAGES, the Carter trial had received little attention. It had seemed to most observers that Wilner was pursuing an old ritual that had been shown to be a failure too many times for any radical departures. For almost three weeks, Wilner, a partner in the small eight-lawyer firm of Spohrer, Wilner, Maciejewski, Stanford & Matthews, had stood alone against one of Big Tobacco’s largest law firms, Chadbourne & Parke, of New York. This was not only Wilner’s first time against the industry, it was his first time on the plaintiff’s side of the court. For the last fifteen years he had made a good, but not spectacular living defending asbestos companies. Some members of the plaintiffs’ bar scoffed at Wilner’s switching to the plaintiffs’ side just as the tide seemed to be turning against the tobacco industry. But Wilner could not be accused of hopping on someone else’s bandwagon. He had created his own casebook.
Since 1995, Wilner had been advertising in Florida newspapers for smoking victims and had built up an inventory of more than two hundred individual cases, involving different tobacco companies. He planned to bring them to court one at a time, if possible once a month. “Every tobacco company will get their turn,” he had said with a chuckle.
The Carter case received little attention until the final days. Grady Carter was anything but the perfect client. At seventeen he had started smoking unfiltered Lucky Strikes. They were made by the American Tobacco Company, which had been bought in 1995 by Brown & Williamson. Carter’s family had pleaded with him for years to give up cigarettes. They had sent him newspaper and magazine articles on the dangers of smoking, but Carter kept smoking. He even declined an offer by his government employer, the Federal Aviation Administration, to send him to no-smoking classes. When his doctor advised him to give up, he switched to a doctor who smoked. Finally, he quit when he was told he had cancer and started coughing up blood. “I liked smoking,” he admitted under oath. “I liked the taste, and I didn’t like how I felt when I didn’t smoke.”
The telltale shadows had shown up on Carter’s chest X ray in 1991. Doctors had removed part of the lung, and at the start of the trial the cancer was in remission and Carter himself was in reasonably good health. At sixty-six he was robust and had enough energy to ride a motorcycle for pleasure around the backstreets of Jacksonville on Sunday afternoons. He was not the most likely smoking victim to elicit much sympathy from a jury, and Wilner’s lawyer colleagues had advised him against taking the case. It sounded like a typical one that the tobacco industry loves to fight: a smoker who knew all the risks and had made a personal choice to take them. In previous trials, jury after jury had balked at giving such smokers much sympathy, or any damages.
But the climate was changing and Wilner felt it was worth the test. The antitobacco propaganda of the Third Wave had been in full swing for more than two years. Liggett had defected and settled its case with the Castano group and five of the states that were suing the industry for Medicaid costs. Most importantly, Wilner had won the court’s approval to use the Merrell Williams documents, stolen from Brown & Williamson’s own confidential files in Louisville. Wilner said later that he thought they had made a big difference, reinforcing the claim that Carter was addicted to nicotine and that the company had been negligent in not telling their customers they were “dealing with a deadly product.”
At the trial, Wilner had preempted the tobacco company’s traditional “choice” defense by admitting early that the smoker shared responsibility. “Selling is a two-way street,” he said, using the tactic adopted by Barrett in the Horton trial in Lexington, Mississippi. Wilner preferred to call it “breaking the ice” with the jury. Once that admission was out of the way, he focused on the company’s liability.
Under Florida state law, it’s the manufacturer, not the consumer, who is required to possess expert knowledge of their products, and to warn the consumer if the hazard is not obvious—or not as well known to the user as to the manufacturer. The consumer could be blamed if he misused a product, but Carter had not done that, argued Wilner. “Do they maintain that Mr. Carter smoked wrong? That he smoked too many cigarettes, that he smoked them too fast, that he smoked them too far down? No, Mr. Carter purchased the product, and used it as it was intended to be used,” he told the court. It is the product, the cigarettes, that are “defective,” argued Wilner. “Cigarettes are ‘dangerous’ to an extent beyond that which would be contemplated by an ordinary customer with the ordinary knowledge of the community.”
Blaming the company for failing to warn Carter of the hazards of smoking before warning labels went on cigarette packs in 1966, Wilner accused the company of a dereliction of duty, a failure of civic responsibility. “Brown & Williamson has a debt to pay and it’s time they paid it,” said Wilner.
One of his exhibits was a videotaped deposition of Robert Heimann, former chief executive of the American Tobacco Company, which made the Lucky Strikes Carter had smoked. This was the same tape used by Barrett in the Nathan Horton trial.
In the tape, Heimann appeared arrogant and aloof, saying it had never occurred to him that one day researchers would establish that smoking causes cancer. Asked whether the Surgeon General was more qualified than he to determine if smoking is hazardous to health, Heimann replied, “No.”
Shrewdly, Wilner did not ask for an outrageous sum. He wanted $1.5 million in compensatory damages and no punitive damages. In the Horton case, the jury had not responded well to Barrett’s excessive recommendation that the jury award Horton’s widow $17 million ($2 million in compensatory and $15 million in punitive damages) in one of the poorest counties in the nation. Wilner aimed at a more digestible level; he doesn’t try his cases on sympathy. “My feeling has always been it’s not the amount; it’s establishing the process that the tobacco companies have been negligent that matters,” he says. Wilner suggested $600,000 for Carter for past pain and suffering and another $400,000 for his future health problems, including the loss of six to seven years of life expectancy. Carter’s wife, Mildred, should receive half her husband’s award, or $500,000, he argued.
The company’s defense was traditional. Even though the ground had shifted with the new evidence, the company’s counsel, Bruce Sheffler, continued to claim that there was no scientific evidence that smoking causes cancer; Carter chose to smoke and assumed the risk. “This case is about Mr. Car
ter, his decisions, his choices, why he made them, why he didn’t,” said Sheffler. Had Carter quit when he was advised by his doctor and his family, he would have lowered his risk of developing lung cancer, but he chose to keep smoking. The company had a duty to warn only when the company knew more about the product than the medical community and the general public, and the company did not know the dangers in the 1950s when Carter started to smoke, claimed Sheffler. Later on, there were plenty of articles about the risks of smoking; Carter simply ignored them.
Importantly, Sheffler’s defense provided no explanation of the Merrell Williams documents that clearly showed the company did know prior to 1966 that nicotine was addictive, and that tobacco smoke contained carcinogens. He presented no company witnesses to counter the damaging internal documents from the Merrell Williams collection. Instead, Sheffler described the key 1963 Addison Yeaman memo (“Moreover, nicotine is addictive. We are then in the business of selling nicotine, an addictive drug.”) as the mere “musings” of a company lawyer. There was no scientific evidence to support such a claim, he said.
Finally, Sheffler urged the jury to dismiss the case because Carter had filed outside the four-year statute of limitations from the time that he knew, or thought he knew he had cancer. Carter was a few days late, said Sheffler. He had filed on February 11, 1995, and he had found out on February 5, 1991. “That’s reason alone to return a verdict for the American Tobacco Company.”
Wilner had reserved part of his summing-up time for rebuttal. “I’ve sat through two hours of nonsense, just now,” he told the jury. This was 1996, he said, and yet the tobacco companies were still refusing to admit that smoking caused cancer. “Where is the accountability?” he asked. “When is it going to stop? It echoes in your brain, this scary refrain: More research. More research is needed.”