Cornered
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The story of how the Merrell Williams documents became public comes from the Castano lawyers.
The UCSF library incident is from court documents. For B&W surveillance at the library, see Declaration of Florie Berger, acting Head of Archives and Special Collection, in the Superior Court of the State of California for the County of San Francisco, case No. 96728, February 24, 1995.
CHAPTER 4: THE PERFECT PLEASURE
BAT researcher’s “all we would want is a larger bag to carry the money to the bank” is from document discovery in the Florida Medicaid suit.
For background on the CEO’s statements and industry funding of nicotine research, see the 107-page “Prosecution Memorandum,” submitted to Janet Reno by Congressman Martin Meehan, compiled by Clifford Douglas.
For background documents on the changing definition of nicotine, see Congressional transcripts of the Congressman Henry Waxman hearings, Part 1; see also the FDA’s Appendices to the ruling on nicotine, August 1995, Appendix 1; “Nicotine Dependence and Cigarette Design: Implications for Research, Treatment, Policy and Litigation,” January 27–28, Northeastern University School of Law. For the industry’s reply see vol. III and IV of FDA Docket Nos 95N-0253 and 95N-0253J, op cit.
DeNoble told his story in interviews with the author and in congressional testimony, Waxman hearings, op cit, (Part 2).
CHAPTER 5: A FOOL’S MISSION
The story of Lloyd Vernon Jones is from an interview with his widow; also from author interviews with Mitch Zeller, lead counsel on the Y1 investigation. The story of Yl is told in the Waxman hearings. op. cit., Part 3, pp. 5–31.
Kessler’s arrival at the FDA comes from author interviews and newspaper reports; especially a 5,000-word article in The Chain Drug Review, vol. 14, no. 18, June 29, 1992. For Kessler’s progress at FDA, see CBS 60 Minutes, “Crusader,” December 4, 1994. The breast implant story is in “Science on Trial: The Clash of Medical Evidence and the Law,” by Marcia Angell, op cit.
For an overview to the year 1994 of tobacco and disease, see Carl Bartecchi et al., two special articles, “The Human Costs of Tobacco Use,” NEJM (Part 1 and 2), vol. 330. No. 13, March 31, 1994.
Origins of the FDA’s relationship to tobacco were researched by Nathan Abse in the Library of Congress and the University of Wisconsin. The papers of Harvey Washington Wiley are in the Library of Congress Madison Building’s manuscript room.
The background to the FDA challenge comes from author interviews with David Kessler, Jeff Nesbitt, and Mitch Zeller.
CHAPTER 6: THE SWEET SMELL OF GAIN
The life and times of Clarence Cook Little are recorded in a handful of newspaper articles about his jobs at the two universities, Maine and Michigan, at the American Cancer Society, and in publications of the Jackson Memorial Laboratory. The best sources are his papers in the library of the Laboratory in Bar Harbor, Maine, and at the Library of the University of Maine, Special Collections. They include pamphlets, biographies, personal letters, and drafts of several of his CTR reports.
On eugenics, see Daniel Kevles, “In the Name of Eugenics,” infra.
For background on Hill & Knowlton’s relationship with the industry, see Karen Miller, Amplifying the Voice of Business: Hill and Knowlton’s Influence on Political, Public and Media Discourse in Postwar America, University of Wisconsin-Madison, 1993.
For a compilation of industry documents referring to CTR, see Cigarette Papers, op cit. Also useful is the 3-volume collection of Cipollone documents put together by TPLP, op cit.
For Jim Green’s comments, see BAT Research Conference, Southampton, 1972, p. 29, provided by Green. See also Green’s essay “Cigarette Smoking and Causal Relationships,” 1976.
CHAPTER 7: KINGS OF CONCEALMENT
Ron Motley practiced his court speeches at plaintiffs’ lawyers’ tobacco litigation conferences. This is from the Mealey Tobacco Conference, West Palm Beach, June 17–18, 1996; also author interview with Motley.
The lawyer takeover of the industry is well documented in the Merrell Williams papers and analyzed in The Cigarette Papers, infra; see also deposition of J. Kendrick Wells in Burl Butler v. Philip Morris, Circuit Court for the Second Circuit Judicial District of Jones County, Mississippi, February 2, 1996; see also Philip Morris papers unearthed in Minnesota litigation (ref. Chap. 10).
For Shook, Hardy background, see David Margolick, “Kansas City Law Firm Defeats All Attacks on Tobacco Clients This ‘Firm’ Doesn’t Kill Its Associates,” NYT, November 11, 1992; “Did Big Tobacco’s Barrister Set Up a Smokescreeen?” Business Week, September 5, 1994; Myron Levin, “Smoking’s Big Guns,” LAT, December 15, 1996.
The author interviewed Eysenck in London, September, 1996.
CHAPTER 8: AN ORGY OF BUNCOMBE
Author interview with David Kessler, September 1996.
FDA rules are in the Federal Register, Friday August 11, 1995, Part V.
After their experience with the Day One program, ABC shelved a second documentary, “Tobacco Under Fire,” for the show Turning Point. The network claimed that its Emmy Award–winning producers Martin and Frank Koughan had refused to allow the program to be edited to a shorter length. The film attacked the industry for selling to youth and examined the industry’s export drive in markets in less developed countries.
For tobacco industry’s response to FDA, see 12 vols, op. cit.
CHAPTER 9: THE SCIENCE TEACHER
The author interviewed Jeff Wigand in May 1996, when he was allowed to talk only about his personal life. Even though he would be given a “pardon” by the tobacco companies in the June 20, 1997, deal, he was still unable to talk about his work at B&W until the spring of 1998.
His deposition was taken in Mississippi on November 29, 1995, and was written up by Alix Freedman in WSJ, January 26, 1996. WSJ put the transcript on the Internet.
For B&W dirty tricks on Wigand see S. L. Hwang and M. Geyelin, “Brown & Williamson Has 500-Page Dossier Attacking Chief Critic,” WSJ, February 1, 1996.
For the background to Wigand and CBS see Lawrence Grossman, Columbia Journalism Review, January–February 1996; “The Man Who Knew Too Much,” Marie Brenner, Vanity Fair, May 1996. Profile of John Scanlon, New York magazine, July 21, 1997.
CHAPTER 10: VOYAGE OF DISCOVERY
This chapter is based on interviews with Skip Humphrey, Mike Ciresi, and Roberta Walburn. The author was part of the British Channel 4 crew with Ciresi when he visited the BAT document warehouse in Guildford.
For background on Judge Fitzpatrick, see reports by David Phelps of the Minneapolis Star Tribune; in particular “Taking on Tobacco,” June 16, 1997, and a profile of Fitzpatrick, January 27, 1997.
Walburn argued her motion to include BAT Industries in the lawsuit in the County of Ramsey, state court file no. C1-94-8565, December 15, 1994; see also FDA, August 1995, Appendix 2, op. cit.
CHAPTER 11: THE FORDICE SAGA
For an analysis of the tobacco industry defenses, see Charles Mikhail, “The Tobacco Industry’s Imaginative but Risky Defense to State Medicaid Actions”; Mealey’s Tobacco Litigation Conference, June 1996; plus Mike Moore’s “Memorandum in Support of the State’s Motion For Ruling in Limine,” to Chancery Court of Jackson County, Mississippi, August 11, 1995; plus the defendants’ Opposition Memorandum, August 22, 1996; plus Plaintiff’s Reply Memorandum, August 25, 1995.
On the industry’s economics, “Does Tobacco Pay Its Way?” Business Week, February 19, 1996; Kenneth Warner et al., “Employment Implications of Declining Tobacco Product Sales for the Regional Economies of the United States,” JAMA, April 24, 1996, vol. 275, No 16, pp. 1241–6; “Tobacco Industry Employment: A Review of the Price Waterhouse Economic Impact Report and Tobacco Institute Estimates of Economic Losses from Increasing the Federal Excise Tax,” Arthur Anderson Economic Consulting, Los Angeles, October 6, 1993.
CHAPTER 12: THE IDES OF MARCH
The story of the 1996 Liggett defection comes from author’s interviews with Don Barrett, Bennett L
eBow, Dick Scruggs, Woody Wilner, and the Castano lawyers. Once again, WSJ had the scoop; see Alix Freedman, Suein Hwang, Steven Lipin, Milo Geyelin, “Liggett Group Offers First-Ever Settlement of Cigarette Lawsuits,” WSJ, March 13, 1996. See also, Glenn Collins, “LeBow Savors a Victory, but the Game Isn’t Over,” NYT, March 14, 1996.
CHAPTER 13: THE SORCERER’S APPRENTICE
The story of Hatsy Heep comes from Castano lawyers’ interviews, plus her 68-page sworn deposition, New Orleans, Friday, April 5, 1996.
The background to the breakup of the original Castano suit comes from interviews with Castano lawyers and contemporary media reports.
The dialogue between Wendell Gauthier and Gary Black is Gauthier’s recollection. Black recalled the conversation, but not in detail.
The Gauthier-Motley battle is from author interviews with Castano lawyers.
The author attended the OSHA hearings. Transcripts of the hearings are available from the U.S. Department of Labor. The incident with Mayor Althaus and the withdrawal of Philip Morris witnesses was written up in the proceedings of the 10th Annual Conference of Tobacco Products Liability Project, Boston, December 2–4, 1994, op cit.
Cabraser’s critique of the Fifth Circuit’s decision is in “The Road Not Taken: Thoughts on the Fifth Circuit’s Decertification of the Castano Class,” ALI-ABA Course of Study, Civil Practice and Litigation Techniques in the Federal Courts, August 14–16, 1996, Seattle, Washington. The Harvard Law Review article is in vol. 110, February 1997, No. 4, p. 977.
CHAPTER 14: THE MAN ON THE PINK BICYCLE
This chapter is based on interviews with Woody Wilner. For Wilner’s background, see Piper Lowell, “Florida the main staging area in battles against the tobacco industry,” The Daily Business Review, December 1, 1995; Maggie Mahar, “Where There’s Smoke,” Barron’s, October 14, 1996; Randy Noles, Jacksonville magazine, February 1997.
The 130-page transcript of Brown & Williamson’s deposition of Irwin Tucker, Louisville, Kentucky, July 28, 1997. The subsequent doctors’ reports on Tucker are enclosed in a letter to Wilner from Brown, Todd & Heyburn, of Louisville, September 10, 1997.
For jury analysis of the second Wilner trial see “Jury’s Verdict Suggests Tough Times Ahead for the Industry,” Huang, Geyelin, and Freedman, WSJ, August 12, 1996.
CHAPTER 15: FIELD OF DREAMS
The title of this chapter comes from a remark made by Meyer Koplow at Harvard Law School seminar, “Should Tort Law Be on the Table,” July 31, 1997. This was a particularly useful overview of the proposed settlement because it included industry lawyers.
The story of the negotiations is pieced together from news reports and interviews with the plaintiffs’ lawyers who took part. See also, Mealey’s Tobacco Conference in Chicago, September 18–19, 1997.
EPILOGUE: AN ILLUSION OF SURRENDER
The attack on Stan Glantz comes from author’s interviews with all parties concerned.
For reading on international tobacco interests, see WP series by Glenn Frankel et al., November 17, 18, 19, 20, 1996, and the banned ABC film “Tobacco Under Fire,” op cit.; also “U.S. Trade Policy and Cigarette Smoking in Asia,” National Bureau of Economic Research, Inc., working paper 5543.
For economic arguments of Jeffrey Harris, see his comments for the American Cancer Society, June 26, 1997, and his remarks at the American Cancer Society’s press conference, Washington, D.C., July 24, 1997.
For relevance of Georgine (Amchem) asbestos litigation, see response of Laurence Tribe to questions posed by the U.S. Senate Judiciary Committee, August 12, 1997. Also, for evolution of product liability law to “generic liability,” see “War on Common Law: The Struggle at the Center of Products Liability,” by Carl Bogus, Missouri Law Review, vol. 60, Winter 1995.
SELECTED BIBLIOGRAPHY
Since the Third Wave began, three books have been published on the tobacco industry. The first is an encyclopedic work by Richard Kluger: Ashes to Ashes (New York: Alfred A. Knopf, 1996). The second is Stan Glantz et al., The Cigarette Papers (University of California Press, 1996). The third is Philip Hilt’s Smokescreen: The Truth behind the Tobacco Industry Cover-up (New York: Addison-Wesley, 1996).
Kluger’s work is a monumental 807 pages of social and scientific history, unique in books about the tobacco industry because the author was given access to Philip Morris executives. Unfortunately, unlike the first generation of tobacco lords—the Dukes of Durham and the Reynolds of Winston in North Carolina—those that followed are not very interesting. They harvested the mammoth profits and retreated behind impenetrable defenses. These executives rejected the one chance of scientific and social progress—to produce a cigarette that gave pleasure without killing people. That scandal is given a full airing in Kluger’s book, but, although published in the spring of 1996, his account does not include the Merrell Williams documents. Except for a brief, and curiously dismissive, overview of the Castano and states’ Medicaid cases, the book stops at the end of the Cipollone trial.
The Cigarette Papers, by contrast, is solely about the 8,000 pages stolen by Merrell Williams. It represents a meticulously annotated version of the documents and is an extraordinary source for anyone interested in the minutiae of the industry’s policies. Much is still left unknown because many of the documents are proposals and conference notes, ideas and recommendations rather than specific policy directives.
Smokescreen records how a New York Times medical-science reporter, Phil Hilts, found himself catapulted into the Third Wave in 1994, when he was the first reporter to see the Merrell Williams papers. While Smokescreen includes much of the new evidence against the industry, it does not follow the liability lawyers—even to their half-way point.
There are a dozen or so books written before the Third Wave. Three stand out, in my view. The first is Elizabeth Whelan’s A Smoking Gun: How the Industry Gets Away with Murder (Philadelphia: George Stickley Co., 1984). Despite its sensational title, it contains a comprehensive—and nicely anecdotal—history of the tobacco epidemic. The second is Peter Talyor’s The Smoke Ring (New York: Pantheon, 1984). Taylor worked for the BBC’s news magazine Panorama and was the reporter on Death in the West, a film about cowboys with cancer and emphysema that Philip Morris succeeded in banning with a lawsuit. Taylor’s lucid account was the last book on the tobacco industry to look at the politics and the science before the avalanche of internal documents.
The third is Christopher Buckley’s satire Thank You for Smoking (New York: Random House, 1995).
OTHER USEFUL VOLUMES INCLUDE:
Rob Cunningham, Smoke & Mirrors. Ottawa, Canada: International Development Research Centre, 1996.
Jordan Goodman, Tobacco in History: The Cultures of Dependence. London: Routledge, 1993.
Paul Johnson, The Economics of the Tobacco Industry. New York: Praeger, 1984.
Daniel Kevles, In the Name of Eugenics. Cambridge, Mass.: Harvard University Press, 1985.
Richard Klein, Cigarettes Are Sublime. Durham, N.C.: Duke University Press, 1993.
David Krogh, Smoking: The Artificial Passion. San Francisco: W. H. Freeman, 1991.
Robert Sobel, They Satisfy: The Cigarette in American Life. New York: Anchor Books, 1978.
Larry White, Merchants of Death: The American Tobacco Industry. New York: William Morrow, 1988.
INDEX
The index that appeared in the print version of this title does not match the pages in your eBook. Please use the search function on your eReading device to search for terms of interest. For your reference, the terms that appear in the print index are listed below.
ABC News
libel suit
Abrams, Floyd
acetaldehyde
acetylcholine
Action on Smoking and Health (ASH)
“addiction hypothesis”
Addiction Research Foundation
additives
Ad Hoc Group
advertisers, suit against FDA
advertising
bans proposed by FDA
Liggett settlement and
national settlement
targeted to blacks
targeted to children and youth
television prohibited
Advocacy Institute
“aggregation,” immunity and
Agriculture Department
Alciatore, Antoine
Alciatore, Jules
Althaus, William
American Association of Advertising Agencies (Four A’s)
American Brands
American Cancer Society
American Federation of Women’s Clubs
American Heart Association
American Lawyer
American Lung Association
American Medical Association
American Psychiatric Association
American Society for the Control of Cancer. See also American Cancer Society
American Tobacco Company
BAT and
Carter suit and
Castano suit and
documents
Green suit and
Horton suit and
legal bills
patents, FDA investigation and
Surgeon General’s report and
Waxman committee and
Wilks suit and
American Trial Lawyers Association (ATLA)
ammonia
“Analysis of Cigarette Smoking Condensate, The” (Rodgman)
Anderson, Jack
Anderson, Tommy
Angelos, Peter
antitrust violations
Arizona Medicaid suit
Arlington, Josie
asbestos litigation
assumption of risk
attorney-client privilege. See also “privileged” documents
attorneys fees, national settlement and
Auerbach, Oscar
“backdoor prohibition” charge
Baker, Howard
Ballin, Scott