by Allan Brandt
Edell’s complaint accused Liggett, Philip Morris, and Lorillard—the producers of Cipollone’s five brands—of five separate torts. First, the product possessed a design defect: Edell would seek to show that the companies had researched and designed safer products but failed to put these safer designs on the market. Second, the manufacturers had failed to adequately inform consumers about the risks. Before labels were federally mandated, the companies had understood the dangers of smoking but failed to warn the public. Further, the ads and promotion had diluted the federal warnings. Third, the manufacturers had breached express warranty, especially through explicit health claims offered in their advertisements. Fourth, they had committed fraudulent misrepresentation through their efforts to neutralize the effects of the mandated warnings through promotion of their products and by failing to act on their own knowledge of the harms of smoking. Finally, through their actions to deprive the public of known medical and scientific data concerning the harms of smoking, the companies had conspired to commit fraud.38
In response, the companies first sought to have the entire case dismissed. They based this request on the 1966 Federal Cigarette Labeling and Advertising Act. The industry claimed that the act not only preempted the states from acting independently to regulate tobacco, it also preempted any state litigation. According to the industry lawyers, the warning labels on packages as of January 1, 1966, precluded any claims that the companies had concealed health risks; moreover, it could not be argued that advertising, promotion, and public relations had made the warnings less effective. According to the defense, the federal legislation excluded all suits after 1965; the industry was immune from litigation. “No matter how outrageous the conduct may be?” asked Judge H. Lee Sarokin, the New Jersey judge who would try the case. The defense attorney, Robert E. Northrip of Shook, Hardy & Bacon answered, “I think that is my position.”39
After Sarokin ruled against the companies on the critical question of torts committed after 1965, his ruling was reversed by the Third Circuit Court of Appeals. The appeals court held that “the carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the national economy would be upset by state law damages actions.” 40 It remanded the case back to the district court, barring all claims regarding advertising, promotion, and public relations after January 1, 1966, when the labeling law went into effect. This radically limited the actionable claims in the case, but Edell and Cipollone decided to continue.
Sarokin, who seldom minced words, called the higher court’s ruling “despicable.” “It is inconceivable,” he wrote, “that Congress intended to protect and insulate such intentionally misleading activities, but the Third Circuit has so declared and once again this court must follow that directive.”41 On this restricted basis, the case proceeded to trial. Sarokin allowed Edell to offer evidence that the companies had acted to undermine the label, but the “duty to warn” claim had been mooted by the appeals court. Other pretrial rulings further restricted the scope of claims against the companies. Sarokin would ultimately bar Edell from using the new risk-utility provisions of the New Jersey law.42
An additional pretrial ruling on “alternative design” further limited Edell’s claims. He had initially presented evidence that Liggett had worked to develop a safer cigarette. This argument was important for two reasons. First, it established that the industry knew that its conventional product, even following the introduction of filters, was dangerous. Second, it showed that the industry had the capacity to produce a product with a safer design but chose not to. James Mold, a former research scientist at Liggett who had been central in the development of the experimental XA cigarette, proved to be one of the first tobacco industry whistle-blowers. In a video deposition played for the jurors, he testified that Liggett had suppressed the safer cigarette that he had worked to develop. “Whenever any problem came up in the project, the legal department would pounce . . . in an attempt to kill the project,” Mold said, “and this happened time and time again.” At a time when the industry was defending itself in court and in public by steadfastly denying the harms of its product, a safer cigarette threatened to destroy key defense strategies. A cigarette that used palladium, a heavy metal, to reduce carcinogens had been patented in 1977, but it was never marketed.43
Although he sharply restricted the case that Edell could present, Sarokin did offer one ruling that would give the Cipollone case a truly historical impact. Through a meticulous and relentless process of discovery, Edell had gained access to some 300,000 internal tobacco industry documents. He showed remarkable skill in this phase of the litigation. As an industry lawyer defending asbestos companies, he had learned specific techniques for making discovery requests, citing named individuals from specific departments. The magistrate overseeing the discovery process, Robert Cowan, had ruled that the companies must turn over pertinent materials in 1984, but that Edell was barred from releasing any of these materials to the public. In July 1985, Judge Sarokin ruled that plaintiff’s counsel and the public had a constitutional “right to know what the tobacco companies knew and know about the risks of cigarette smoking and what it did or did not do with regard to that knowledge.” Sarokin justified his ruling by arguing that future plaintiffs should not have to repeat the difficult and expensive process that Edell had initiated on behalf of his client. “The court cannot ignore the might and power of the tobacco industry and its ability to resist the individual claims asserted against it. . . . To require that each and every plaintiff go through the identical, long and expensive process would be ludicrous.”44
The defense attorneys had claimed that the release of documents bearing “trade secrets” would harm their clients’ competitive interests—one of the many tactics the industry would deploy to protect its records from public scrutiny. They appealed Sarokin’s ruling to the Third Circuit, where they argued that if “taken out of context and left unexplained,” the materials might lead to “embarrassment, oppression, and apparent incrimination.”45 The ruling was upheld.
The companies then appealed to the Supreme Court, which refused to hear the case, causing the first public disclosure of confidential industry documents. By permitting Sarokin’s decision to stand, the Supreme Court opened a devastating crack in traditional industry defenses. The industry’s defeat on this question created what eventually became a torrent of tobacco papers. Much of what we now know about the cigarette century was made possible by Sarokin’s ruling on the documents in the Cipollone case, and the Supreme Court’s (non)decision to let it stand. According to antitobacco activist attorney Richard Daynard, the Cipollone documents would “provide a firm foundation for future plaintiffs to build a convincing case of fraud and conspiracy against the tobacco industry.” Daynard went on to note that these documents “may represent only the tip of the iceberg.”46 But they encouraged a wave of plaintiffs’ lawyers to aggressively pursue discovery in future cases.47
The documents produced in Cipollone offered an unprecedented view of industry activity during the crucial period when the harms of smoking came to be determined. They showed that the industry’s concerns about the carcinogenic effects of smoking dated back to at least the mid-1940s. A document recovered from 1946, written by Lorillard researcher H. B. Parmele, explained that “certain scientists and medical authorities have claimed for many years that the use of tobacco contributes to cancer development in susceptible people. Just enough evidence has been presented to justify the possibility of such a presumption.”48 Although Parmele felt it was impossible to make such claims with “absolute authority” (a reasonable position in 1946), he called for more research into the “compounds existing in cigarette smoke” and “carcinogenesis.” Edell used this memorandum, presented in the testimony of his principal expert witness, physician and economist Jeffrey Harris, to argue that the companies had adequate knowledge from mid-century to apprise the public of the risks and to take action to modify their product. But the detailed ti
meline offered by Harris would show that instead, the industry publicly denied these risks through a sophisticated public relations program and an aggressive lobbying crusade, even while it confirmed the carcinogenic properties of tobacco smoke in its own laboratories.49
Harris’s testimony illuminated the critical questions of what the industry knew, and when. A memo written by researchers at Arthur D. Little, contracted to do research for Liggett, explained in 1961:1. There are biologically active materials present in cigarette tobacco. These are:a. cancer causing
b. cancer promoting
c. poisonous
d. stimulating, pleasurable, and flavorful.50
Harris also cited a number of instances where Ernst Wynder’s experiments using tobacco condensates to induce cancer in mice had been successfully replicated by industry scientists but never revealed. A 1955 document noted that a speaker at an industry conference, reporting on one such experiment, said he had been told by an official from a large maker of cigarette paper that “some people didn’t want to be informed about what he had found.” The official, Milton O. Schur of Ecusta Corporation, “mentioned one big manufacturer of cigarettes whose people . . . at a high level have said they didn’t want to be told certain factual knowledge because they wanted to be in a position to say they didn’t know about these things.”51 Harris said he believed the “high level” executives were from Lorillard.52
Harris would also claim that the companies had a “gentleman’s agreement” not to conduct in-house biological research. This agreement, he testified, was mentioned in the first draft of a November 1968 appeal by Philip Morris scientists for increased funding, partly because other tobacco companies had been discovered violating the pact. A second draft, prepared by research chief Helmut Wakeham, deleted “gentleman’s agreement” and substituted “previous arrangements within the tobacco industry.” A third draft dropped that language too, remarking only that the request for more research money “may seem a radical departure from previous policy and practice.”53
In a 1971 memo urging Philip Morris executives to expand their research capacity, Wakeham explained that the industry was “gradually emerging from the dark ages when it was not considered knowledgeable about the biological effect of smoke and its components. Maybe we learned from crises past that it is better to be informed about potential dangers than to be silenced by ignorance.”54 The tension between “knowing” the product and denying its harms would be a persistent conflict within the industry.
Beyond using memos, letters, and reports to demonstrate executives’ awareness of the potential harms of the cigarette, Edell also sought to draw attention to the industry’s reaction to the growing knowledge that cigarette smoking caused lung cancers—like the one that had led to his client’s death. Among the incriminating internal documents now in Edell’s hands was a 1972 assessment of industry strategy written by Frederick R. Panzer, a vice president of the Tobacco Institute. Panzer described their three-pronged “holding strategy” of—creating doubt about the health charge without actually denying it
—advocating the public’s right to smoke . . .
—encouraging objective scientific research
On the litigation front for which the strategy was designed, it has been successful. While we have not lost a liability case, this is not because juries have rejected the anti-smoking arguments.
On the political front, the strategy has helped make possible an orderly retreat. But it is fair to say that it has not stemmed the pressure for new legislation, despite the major concessions we have made.
On the public opinion front, however, our situation has deteriorated and will continue to worsen. This erosion will have an adverse effect on other fronts, because here is where the beliefs, attitudes and actions of judges, juries, elected officials and government employees are formed.
Panzer’s insightful memo made clear the industry’s knowledge and strategy.55
Among the revelations in the cache of industry documents that Edell recovered were a series of memoranda and letters detailing the strategy behind the industry’s scientific program of the Council for Tobacco Research. Now, for the first time, the internal documentation of the public relations emphasis of the origins and conduct of this program came to light. In particular, documents revealed that from the outset, industry legal counsel oversaw the program, assuring that research did not compromise their defense strategies. In 1966, CTR had established, under the guidance of its Committee of Counsel, a “special projects” program to undertake specific research projects and to prepare scientific witnesses for trials and congressional testimony. Special Projects offered the lawyers considerably more control to direct the research and to withhold negative findings. This program was overseen by Ed Jacob of the firm Jacob, Medinger, Finnegan & Hart. As one former R.J. Reynolds employee explained, “As soon as Mr. Jacob funded [a scientific study] it was a privileged communication and it couldn’t come into court.”56
In 1978, a group of industry attorneys and executives met in New York to review the status of the CTR. At the meeting, according to the minutes, Bill Shinn of Shook, Hardy & Bacon, offered a candid assessment of the history of the organization:CTR began as an organization called the Tobacco Industry Research Council [sic] (TIRC). It was set up as an industry shield in 1954. That was the year statistical accusations relating smoking to disease were leveled at the industry; litigation began; and the Wynder/Graham reports were issued. CTR has helped our legal counsel by giving advice and technical information, which was needed at court trials. CTR has supplied spokesmen for the industry at Congressional hearings.
The monies spent at CTR provides a base for introduction of witnesses.
Bill Shinn feels that “special projects” are the best way that monies are spent. On these projects, CTR has acted as a “front”; however, there are times when CTR has been reluctant to serve in that capacity and in rare instances they have refused to serve in that capacity.
CTR began to lose their luster in the mid-60s and the tobacco industry looked around for more beneficial ways to spend their research dollars on smoking and health. It was at this time that special projects were instituted at Washington University, Harvard University, and UCLA. Bill Shinn noted that the industry received a major public relation “plus” when monies were given to Harvard Medical School.57
As it had for decades, the industry would claim that CTR materials (and documents like the minutes cited above) were subject to attorney-client privilege.58
In addition to relying on these internal documents, Edell emphasized the powerful advertising and promotional campaigns for the specific brands that Cipollone had smoked in order to show the industry’s strategy to maintain smokers’ denial and allegiance. Richard Pollay, a historian and archivist who had collected and analyzed thousands of cigarette advertisements and campaigns, testified as an expert witness. Pollay showed that health and safety had historically played an important part in tobacco advertising. 59 In Edell’s argument, this constituted an express warranty implied in the hard sell of cigarettes.
Edell’s case ultimately depended on his convincing the jury that Cipollone’s continued tobacco use was a result of her addiction to cigarettes and was, therefore, anything but an informed and voluntary choice. At the trial, Jerome H. Jaffe testified as an expert witness on addiction on behalf of Cipollone. Jaffe, a psychiatrist who had served as “drug czar” in the Nixon White House and was now director of the Addiction Research Center in Baltimore, had interviewed Cipollone for more than an hour shortly before her death. Noting that Cipollone had continued to smoke following removal of part of her right lung, Jaffe concluded that she was “heavily dependent” on nicotine. In defining drug dependence at the trial, he explained that “physical dependence, social dependence or neuroadaptation is one element of a very complex relationship between the individual and history of using a drug that causes the individual to lose a certain range of option as to whether to continue to use the drug or not.”60
“Tobacco is a drug,” he testified, “in the same way opium is a drug or marijuana.”61 Jaffe concluded that Cipollone had a physical dependency and that attempts to reduce her consumption or to quit would lead to symptoms of withdrawal.62 These could include restlessness, anxiety, and increased appetite, all of which Cipollone experienced. “The withdrawal symptoms have a certain adversive quality,” Jaffe explained. “They are things that you don’t want to experience; the anger, the confusion, the depression, the irritability, the anxiety. That becomes another motive to continue to use the drug.”63 Cipollone had told Jaffe at their interview: “I didn’t think about quitting because I didn’t think I could bear it; I avoided all occasions that would lead me to think about stopping; I always made sure that the cigarettes were there; I would have extra food delivered just to have cigarettes delivered.”64 Cipollone confided that in the rare instances when she did run out of cigarettes, she would look in the trash for butts. Jaffe did not claim that Cipollone’s tobacco dependence made it impossible for her to quit, but he did conclude that it would have made any such attempt extremely difficult.65