by Allan Brandt
Following the Court’s decision, President Clinton, who had backed Kessler’s initiative, urged Congress to support FDA regulation of tobacco. But with a Republican Congress and a strong antiregulatory environment, there was no reason to expect any forward movement. Some 80 percent of political funding from the tobacco industry was routed to Republican candidates. 111 Waxman filed a bill to give the FDA the requested authority, but it never came to a vote. The Republicans “love the tobacco companies,” Waxman explained.112 Republican Congressman J. C. Watts countered that the FDA should be busy enough without adding tobacco regulation to its plate. “The FDA is supposed to be aiding the development and implementation of vaccines and life-saving medicines,” Watts noted. “Do we still have diseases that need cures? The FDA seems to be interested in doing everything except what they are responsible for.”113
No doubt Kessler’s tobacco initiative helped expand public knowledge of cigarette production, addiction, and harm. In this instance, as in most of the failed attempts to bring tobacco to heel, whatever social benefits had accrued came from the process rather than the outcome. Kessler, Waxman, the investigative journalists, and the band of whistle-blowers had failed to attain regulatory authority over the tobacco industry. But they had dramatically reframed the essential social and cultural questions of tobacco use. Moreover, they had illuminated the fundamental moral questions underlying the production and promotion of tobacco products. The antitobacco forces—armed with remarkable new ammunition supplied by tobacco company informants—would now return to the arena of liability litigation.
The tobacco executives’ explicit, on-record, under-oath denials of any knowledge of harm or addictiveness stood in sharp relief to growing mountains of documents. For years, the industry had defended itself by clinging to notions of scientific uncertainty and the voluntary assumption of “alleged” risks. Even after these positions had been clearly identified as self-interested and evasive, they left the industry in a plausible, if marginal, space to continue to aggressively market and promote its product while fending off liability attacks. Now, with the dramatic revelations contained in the documents and the former scientists’ and executives’ public statements, the fiction that this was an industry acting legitimately to produce a legitimate product grew ever harder to maintain. Industry spokespersons and other supporters of tobacco were always quick to remind the public that the cigarette was a legal product. But from a social and cultural perspective, the makers of that product had come under the kind of legal and moral scrutiny that they had scrupulously avoided for four decades. As the social and political status of the industry deteriorated, a number of institutions took actions to reduce the influence of the companies. Some universities, pension funds, and state governments divested their holdings in tobacco stocks. And a number of universities developed new policies to ban the acceptance of tobacco research funding—acknowledgment that the industry had historically used such grants to gain status and legitimacy, while distorting scientific process.114
With the closeted world of tobacco production, research, and promotion opened up for review, essential moral questions about the industry and its executives came to the fore. Journalists and others began to explicitly ask, “How do they live with themselves?” Roger Rosenblatt posed precisely this question to a group of top executives at Philip Morris in early 1994.115 The company leaders insisted that they were trying to do the right thing and that they felt a deep moral and social responsibility about their business and the effects of cigarette smoking. They were personally hurt by the attacks being leveled against them. “Anybody would feel hurt if somebody says you are a merchant of death and you shouldn’t be able to look yourself in the mirror in the morning,” said Philip Morris Senior Vice President Steven C. Parrish. “I wish they wouldn’t say things like that.” The executives who spoke with Rosenblatt relied principally on the industry’s traditional defenses: we produce a legal product; everyone is aware that it may be risky; we don’t promote smoking to children; there are many risks in the world; freedom of choice is a fundamental social and political value; we make important contributions to the economy and the social good. Parrish told Rosenblatt, “I feel good about what I do, both in how I go about my job and what my role in the company is, so I try not to let it bother me.”116 The corporate culture of Big Tobacco had created a set of powerful rationalizations for denying the harms produced by tobacco and sustaining the financial success of the industry. These were essential psychological protections for those who worked in the industry.
Rosenblatt concluded that the executives who spoke with him were sincere in their convictions. They had a positive moral image of themselves. As Rosenblatt explained, “I felt the presence of the company within the person. In the end, I felt that I was speaking with more company than person, or perhaps to a person who could no longer distinguish the two. In this situation, in which the company has effectively absorbed its employees in its moral universe, the more responsible employees are the company and thus are to blame.”117 Many within the industry expressed moral indignation at what they saw as unrelenting and unjust attacks. This may help to explain why the Wigands and Farones were so rare.
The moral question that had by this time emerged so clearly was greeted by two opposing cultural reactions: outrage and cynicism. On the one hand, the tobacco executives’ hypocrisy in claiming that they did not believe smoking is addictive was trumpeted in the press as one more example of powerful corporate interests disregarding the public well-being. Waxman’s triumph had been in publicly eliciting self-interested pronouncements that so clearly contradicted both science and common sense. On the other hand, a certain world-weary cynicism in the face of scandal had become commonplace in American culture. Self-interest and deceit in the exercise of power were, after all, not so new. After Watergate, Vietnam, and a range of other personal and political scandals, morally tormented whistle-blowers and revelations from secret documents had a familiar sound. The widely documented decline in public trust in institutions, from the presidency to the corporation, offered a corrosive climate for accusations and exposé. Increasingly, accusations that the tobacco companies had lied were greeted with cynical anticipation: well, of course they lied.
To watch someone that you love very much die a slow
miserable death, suffocating day by day, is a very unpleasant
thing. And to know exactly what caused it.
And then when you hear the denials of the cigarette
companies that they had never caused the illness or
death of a single American citizen, having sat there
and watched my mother suffocating. Having the doctors
tell me and describe for me exactly what caused it.
How it caused it and what it was doing to her.
It makes you very angry. At least it made me very
angry. And when I get angry, I try to get even, if it is
legitimate to do so.1
RON MOTLEY, 1998
In retrospect, you know it’s easier to say this now than maybe in 1994 but, in retrospect, it was the—the biggest challenge, the biggest legal challenge in history. . . . Nobody has ever beaten the tobacco industry before. We felt like we had a chance. We also knew if we won, we might just do more good than any lawyer had ever done in history. Might save more lives than most doctors have ever saved in history. So I mean, why not do that? Why not be a part of that? And as the movement grew through the years I became more and more convinced we were going to be successful.2
MIKE MOORE, 1998
Their dream became unconditional surrender by the enemy, with huge reparations—or nothing. It was a case of retributive justice run amok. And, irony of ironies, the cunning, monolithic enemy was able to claim itself victimized by a cadre of unforgiving control freaks and health fascists.3
RICHARD KLUGER, CA. 2001
CHAPTER 12
The Trials of Big Tobacco
NORMA BROIN WAS LOOKING for a lawyer. Broin ha
d served as a flight attendant for American Airlines for fifteen years. A thirty-six-year-old mother of two and a devout Mormon, she had never smoked a cigarette, but in 1989 she was diagnosed with lung cancer and had to have part of her lung surgically removed. She attributed the cancer to her many hours of flying in smoke-filled airline cabins. Armed with substantial new data on the risks of secondhand smoke as well as specific studies demonstrating the occupational risk to flight attendants, she decided to sue. Lawyers later described her as “the perfect plaintiff.”4
Broin contacted Patty Young, an activist flight attendant known worldwide in the profession for insisting on the need for protection from exposure to cigarette smoke on flights. With Young’s help, Broin was eventually referred to Miami attorney Stanley Rosenblatt, who agreed to take the case.5 Rosenblatt had never tried a tobacco case. He had, however, successfully defended physician Peter Rosier, who had committed a mercy killing of his wife, who was dying of lung cancer.6 Rosenblatt was well-versed in the nature of tobacco-related disease and death.7 When he filed Broin v. Philip Morris, friends and colleagues told him he was “out of his mind.”8 It was a class-action suit seeking some $5 billion on behalf of 60,000 flight attendants who suffered illnesses caused by occupational exposure to secondhand smoke.
The Broin case offered two critical innovations in the ongoing efforts to seek legal redress from Big Tobacco. First, because the case involved nonsmoking flight attendants, it disrupted the traditional industry defense of knowledgeable assumption of risk. As Marc Edell had discovered, the notion of individual responsibility for the decision to smoke was an almost impossible legal hurdle. But the Broin case could not be defended on the traditional grounds of plaintiffs being aware of the risks: as Columbia University Law School Professor John Coffee noted, “There is no reason for the jury to agree that these flight attendants assented to whatever risks tobacco posed.”9 Second, by consolidating claims in a class-action litigation, Rosenblatt raised the stakes significantly. Class-action cases dramatically increased the potential rewards for plaintiffs’ attorneys and would eventually attract new talent and resources to tobacco litigation. Such litigation would evolve from a mechanism for compensating victims into a critical tool for social policy. If regulation could not be achieved through legislation, perhaps it could be driven by a group of lawyers seeking social justice, public health, and unprecedented paydays.
David Kessler’s failed effort to bring tobacco under the FDA’s jurisdiction powerfully demonstrated the difficulty of limiting the promotion and sale of cigarettes at the end of the twentieth century. Despite the decline in public acceptance of cigarettes, despite the emergence of internal documents demonstrating industry knowledge and manipulation of the product’s addictive quality, and despite the growing recognition—personified in the Joe Camel campaign—that cigarettes were deliberately targeted to children, the industry remained all but unregulated. The industry had brilliantly managed the two major federal “regulations”—package labeling and the advertising ban—to protect its interests. Despite its monumental problems, Big Tobacco had been remarkably effective in resisting serious public health initiatives.
We now know a good deal about how this goal was achieved: a careful mixture of reassurance, half-truths, innovative public relations, disinformation, and deception. The industry had expended unprecedented resources on political lobbying to secure its interests in legislation. Many liked to point out that cigarettes—had they been invented in the second half of the twentieth century—could never be introduced as a consumer product because of any number of government regulations. But since it had eluded these regulatory regimes as they were created, the cigarette was grandfathered to a unique status in American consumer culture.
Litigation, however, remained the industry’s great vulnerability. Following the Cipollone verdict and the failure to secure a payout from the tobacco industry in similar suits, the plaintiffs’ bar viewed tobacco liability litigation with considerable skepticism. The industry went to great lengths to ensure that the costs of such suits did not justify the substantial—even overwhelming—financial risks. Nonetheless, given the potential payoff and the public’s growing indignation against corporate malfeasance, some attorneys sought a chance at the elusive gold ring.
Before his death in 1987, Nathan Horton, an African-American carpenter in Holmes Country, Mississippi, decided to sue the American Tobacco Company. Horton had started smoking as a child and was a committed Pall Mall smoker throughout high school. Once he joined the Navy, in 1955, and could buy discounted cigarettes at the military exchange, he quickly became a two-pack-a-day smoker and remained so until he was diagnosed with lung cancer in 1986. On Horton’s behalf, Don Barrett, a local personal injury attorney (who would later become involved in helping the Brown & Williamson whistle-blower Merrell Williams), sought compensatory and punitive damages from American Tobacco for more than $10 million, claiming breach of warranty as well as “grossly negligent conduct.” In its basic structure and arguments, Horton v. American Tobacco was much like Cipollone. So too was the defense, which relied on assumption of risk while denying that cigarettes had been proven harmful. The Horton case ended in a mistrial; the jury deadlocked. Following the trial, Barrett would accuse the defendants of jury tampering, but the charges were never proven. On retrial in Oxford, Mississippi, in 1990, the jury found liability on the part of American Tobacco but awarded no damages. The single big victory repeatedly predicted by activist law professor Richard Daynard had once again failed to materialize. Barrett would try again, this time with a client, Anderson Smith, who had died in 1986 of cancer and emphysema, after spending most of his life in a mental hospital. No jury, reasoned Barrett, would find Smith blameworthy. Barrett received assistance from Richard Scruggs, his local colleague, who was then best known for asbestos litigation but would soon also become involved with Williams. Smith’s case, known as Wilks, was Scruggs’s first exposure to tobacco litigation. Despite an impassioned closing argument from Barrett, the jury would find in favor of American Tobacco after just two hours’ deliberation.10 Barrett and the other plaintiffs’ attorneys began to rethink their basic strategy.
Beginning in the 1990s, a group of experienced tort lawyers began to re-examine the potential for actions against the tobacco companies. Edell’s success in securing incriminating internal documents through discovery in Cipollone had piqued the interest of trial lawyers.11 But it had also shown the difficulty of overcoming the industry’s standard defenses. These lawyers now sought strategies that would address the inherent weaknesses in cases like Cipollone and Horton.
Between 1994 and 1997, more lawsuits were filed against tobacco firms than in the previous thirty years. The nightmare of industry lawyers and their clients had come true. The irony in this new spate of gigantic and innovative suits was that the companies’ long-standing strategy of denying the harms of smoking had made them increasingly vulnerable to the very suits they sought to prevent. For each year they worked to deny the dangers of their product, their legal risks grew geometrically. Tobacco liability was the ultimate self-fulfilling prophecy.12
Broin v. Philip Morris marked the first successful effort to file and bring a class-action case against a cigarette manufacturer to trial—no small feat given the defendants’ “scorched earth” legal tactics.13 Stanley Rosenblatt, a fierce litigator, and his wife Susan Rosenblatt, appellate expert and brief author, combined to take on an army of seasoned tobacco attorneys. The odds against them were daunting. Daynard would later remark that their effort “was universally viewed at the time as financial suicide.”14 Still, a class-action suit was free of certain crippling weaknesses.
Suits by individuals, like Cipollone and Horton, had failed for several reasons. First, there were the perennial problems of statistical arguments linking smoking to disease in any single person. Even if smoking increased one’s chances of getting lung cancer, it was not difficult for the defense to find experts willing to assert their skepticism about causal
ity in any given case. Then would come the intensive focus on the plaintiff ’s decision to smoke, and to continue smoking. Any case brought by a single smoker would fall before the defense argument that smoking was a deliberate action. Even as juries had little sympathy for the companies, they had next to none for smokers who willingly took up an increasingly stigmatized behavior that was known to be dangerous. But perhaps most significantly, juries resisted the notion of large awards to individual smokers. Why should Rose Cipollone’s heirs win the lottery, or Nathan Horton’s? Even as plaintiffs’ lawyers argued that it was time for the industry to take responsibility for the massive death toll from cigarettes, jurors saw an important inequity in enriching a few individual smokers or their survivors. If pursuing the industry meant rewarding these smokers and their lawyers, the litigation movement would gather little support.15
Class-action litigation, in which a large number of plaintiffs would aggregate their claims, offered a response to these concerns. The history of such suits provided a more equitable solution to the problem than simply enriching a small group of plaintiffs at the companies’ expense. An amendment to the Federal Rules of Procedure in 1966 permitting “common question class action” meant that in addition to traditional compensatory and punitive damages, the courts could require “injunctive relief,” mandating that an industry or institution modify its practices.16 A series of such decisions in the 1970s and 1980s—ranging from faulty medical devices like the Dalkon Shield to toxins like Agent Orange and industrial disasters like the Bhopal gas leak—served as important precedents for tobacco litigation.17