The Cigarette Century

by Allan Brandt

98 Claude E. Teague, “Research Planning Memorandum on Some Thoughts About New Brands of Cigarettes for the Youth Market,” February 2, 1973, Bates No. 502987407/7418; and Mangini, http://legacy.library.ucsf.edu/tid/edy62d00.

  99 Stuart Elliott, “Adoring or Abhorring the Camel,” New York Times, July 29, 1992.

  100 Federal Food, Drug, and Cosmetic Act of 1938, Pub. L. No. 75-717, 52 Stat. 1040, (1938).

  101 Kenneth E. Warner, Carl C. Peck, Raymond L. Woosley, Jack E. Henningfield, and John Slade, “Treatment of Tobacco Dependence: Innovative Regulatory Approaches to Reduce Death and Disease,” Food and Drug Law Journal 53 (Suppl) (1998): 1-8.

  102 David A. Kessler et al., “The Food and Drug Administration’s Regulation of Tobacco Products,” New England Journal of Medicine 335, no. 3 (1996): 988-994.

  103 Ibid., 989.

  104 Ibid., 993.

  105 Glenn Frankel, “Dole’s Link to Big Tobacco Aged in Years of Dealmaking,” Washington Post, May 18, 1996.

  106 “Mr. Dole’s Smoke Rings,” New York Times, July 4, 1996.

  107 Kessler, 382. 108. Thomas W. Kirby, “Giving Agencies Less Deference; Tobacco Decision Looked Broadly for Congress’ Intent,” Legal Times, March 27, 2000, 66.

  109 Food and Drug Administration, et al. v. Brown and Williamson Tobacco Corporation, et al., 529 U.S. 120 (2000).

  110 David E. Rosenbaum, “Everyone Wants to Do Something About Tobacco, but Few Agree on What,” New York Times, March 11, 1998.

  111 Open Secrets: Tobacco Long-Term Contribution Trends, available from http://www.opensecrets.org/industries/indus.asp?Ind=A02, accessed June 30, 2006.

  112 Adam Clymer, “Clinton Urges Giving F.D.A. Oversight of Tobacco,” New York Times, March 26, 2000.

  113 Ibid.

  114 N. Wander and R. E. Malone, “Selling Off or Selling Out? Medical Schools and Ethical Leadership in Tobacco Stock Divestment,” Academic Medicine 79, no. 11 (2004): 1017-1026; L. Fisher, “Divestment in the Tobacco Industry,” Cancer Causes and Control 11, no. 4 (2000): 381-382; Ruth Malone, Secret Papers Show Tobacco Company Tried to Preserve Financial Ties with Academic Medicine [Internet newsletter], University of California, San Francisco, October 25, 2004; Frank Phillips, “Dukakis Will Seek Tobacco Divestment,” Boston Globe, May 29, 1990; Frank Philips, “Harvard Divests of Tobacco Firms’ Stock,” Boston Globe, May 23, 1990; and “Group Urges Divestment of Tobacco Stocks,” New York Times, May 27, 1990. Rather than divesting, some religious groups have used shareholder responsibility proxies to challenge industry policies. See M. H. Crosby, “Religious Challenge by Shareholder Actions: Changing the Behaviour of Tobacco Companies and Their Allies,” British Medical Journal 321, no. 7257 (2000): 375-377. On bans on research funds, see Alan Blum, “Ethics of Tobacco-Funded Research in U.S. Medical Schools,” Tobacco Control 1, no. 3 (1992): 244-245; D. E. Barnes and L. A. Bero, “Industry-Funded Research and Conflict of Interest: An Analysis of Research Sponsored by the Tobacco Industry Through the Center for Indoor Air Research,” Journal of Health Politics, Policy, and Law 21, no. 3 (1996): 515-542.

  115 Roger Rosenblatt, “How Do Tobacco Executives Live with Themselves?” The New York Times Magazine, March 20, 1994, 34.

  116 Ibid., 39

  117 Ibid., 73-74.

  Chapter 12

  1 Frontline: Inside the Tobacco Deal, WGBH, 1998, http://www.pbs.org/wgbh/pages/frontline/shows/settlement/interviews/motley.html.

  2 Ibid.

  3 Quoted in Michael Pertschuk, Smoke in Their Eyes: Lessons in Movement Leadership from the Tobacco Wars (Nashville, TN: Vanderbilt University Press, 2001), 279.

  4 Mark Hansen, “Second-Hand Smoke Suit,” American Bar Association Journal, February 1992, 26; and Glenn Collins, “Trial Near in New Legal Tack in Tobacco War,” New York Times, May 30, 1997.

  5 Sheryl Stolberg, “2 Women in Vanguard of Anti-Smoking Battle,” Los Angeles Times, February 21, 1996.

  6 Terri Somers, “The Billion Dollar Mitzvah Religious Faith and a Passion for the Cause Led Stanley Rosenblatt to Take on Big Tobacco,” Sun-Sentinel, October 8, 2000.

  7 Stanley M. Rosenblatt, Murder of Mercy: Euthanasia on Trial (Amherst, NY: Prometheus Books, 1992).

  8 Myron Levin, “Tobacco Firms to Settle Flight Attendants’ Suit,” Los Angeles Times, October 11, 1997; and John Schwartz, “Secondhand Smoke Trial Ends in Deal: Tobacco Firms’ Settlement Includes $300 Million for Research Foundation,” Washington Post, October 11, 1997.

  9 Collins.

  10 I have relied heavily on Michael Orey’s excellent Assuming the Risk: The Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco (New York: Little, Brown, 1999) for my assessment of the emergence of state litigation. See also Benjamin Weiser, “Tobacco’s Trials,” Washington Post, December 8, 1996.

  11 Peter Pringle, Cornered: Big Tobacco at the Bar of Justice (New York: Henry Holt, 1998), 40-41; and Dan Zegart, Civil Warriors: The Legal Siege of the Tobacco Companies (New York: Delacorte Press, 2000), 86.

  12 Robert K. Merton, Social Theory and Social Structure (New York: Free Press, 1949).

  13 Zegart, 85.

  14 R. A. Daynard, “How Did We Get Here?” Tobacco Control 13 (Suppl 1) (2004): i3.

  15 Graham E. Kelder, Jr., and Richard A. Daynard, “Judicial Approaches to Tobacco Control: The Third Wave of Tobacco Litigation as a Tobacco Control Mechanism,” Journal of Social Issues 53, no. 1 (1997): 169-186; “Editorials on Tobacco . . . Smokers Chose Their Fate,” Los Angeles Daily Journal 104, no. 93 (1991): 6; and Philip J. Hilts, “Lawsuits Against Tobacco Companies May Be Consolidated,” New York Times, November 6, 1994.

  16 Kenneth W. Dam, “Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest,” Journal of Legal Studies 4, no. 1 (1975): 47-73. For a history of class actions, see Harry Kalven, Jr., and Maurice Rosenfield, “The Contemporary Function of the Class Suit,” University of Chicago Law Review 8, no. 3 (1941): 684-721.

  17 Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (Cambridge, MA: Belknap Press of Harvard University Press, 1986); Sheila Jasanoff, ed., Learning from Disaster: Risk Management After Bhopal, Law in Social Context (Philadelphia: University of Pennsylvania Press, 1994); Mary F. Hawkins, Unshielded: The Human Cost of the Dalkon Shield (Toronto: University of Toronto Press, 1997); and Morton Mintz, At Any Cost: Corporate Greed, Women, and the Dalkon Shield (New York: Pantheon Books, 1985).

  18 Jack B. Weinstein, “Compensating Large Numbers of People for Inflicted Harms” [keynote address], Duke Journal of Comparative and International Law 11, no. 1 (2001): 165-178. See also Jack B. Weinstein, “Ethical Dilemmas in Mass Tort Litigation,” Northwestern Law Review 88, no. 2 (1993-1994): 469-568; and Jack B. Weinstein, “Restatement of Torts and the Courts, the Symposium: The John W. Wade Conference on the Third Restatement of Torts,” Vanderbilt Law Review 54, no. 3 (2001): 1439-1446.

  19 See especially Lynn Mather, “Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation,” Law & Social Inquiry 23, no. 4 (1998): 897-940; and John C. Coffee, Jr., “Class Wars: The Dilemma of the Mass Tort Class Action,” Columbia Law Review 95, no. 6 (1995): 1343-1465.

  20 All quotes taken from Michael Janofsky, “On Cigarettes, Health and Lawyers,” New York Times, December 6, 1993.

  21 Carrick Mollenkamp et al., People vs. Big Tobacco: How the States Took on the Cigarettte Giants (New York: Bloomberg Press, 1998), 14.

  22 “Tobacco Executives Still Claim Smoking Not Killer, Paper Says,” Houston Chronicle, April 21, 1997.

  23 FAMRI—Flight Attendant Medical Research Institute Mission Statement, accessed February 28, 2006, available from http://www.famri.org/mission_statement/index.php.

  24 Levin; and Schwartz.

  25 Weiser.

  26 John Coale and another Castano lawyer, Russ Herman, also had parents with smoking-related diseases. See Saundra Torry, “Liability Lawyers Trying to Smoke Out Tobacco Industry,” Washington Post, May 30, 1994.

  27 Paul Brodeu
r, Outrageous Misconduct (New York: Pantheon, 1985).

  28 Ibid., 143. For more on Motley, see Dan Zegart, Civil Warriors: The Legal Siege of the Tobacco Companies (New York: Delacorte, 2000).

  29 Brodeur, 143-144.

  30 Marianna S. Smith, “Resolving Asbestos Claims: The Manville Personal Injury Settlement Trust,” Law and Contemporary Problems 53, no. 4 (1990): 27-36. See also Brodeur; and Zegart.

  31 Barry Meier, “Tobacco Industry Loses First Phase of Broad Lawsuit; Jury Finds a Conspiracy to Hide Effects of Smoking,” New York Times, July 8, 1999; and Stanley M. Rosenblatt, personal communication with the author, April 14, 2003.

  32 Gordon Fairclough and Milo Geyelin, “Tobacco Companies Rail Against Verdict, Plan to Appeal $144.87 Billion Award,” Wall Street Journal, July 17, 2000.

  33 R. Davis, “A $145bn Verdict and a ‘Roar of Moral Outrage,’” British Medical Journal 321, no. 7257 (2000): 322.

  34 F. Charatan, “Florida Jury Finds Tobacco Companies Guilty of Fraud,” British Medical Journal 319, no. 7203 (1999): 143; Richard A. Daynard, “The Engle Verdicts and Tobacco Litigation,” British Medical Journal 321, no. 3 (2000): 312-313; M. Larkin, “Tobacco Industry Giants Scorched in Florida Lawsuit,” Lancet 354, no. 9174 (1999): 231; Myron Levin, “Court Throws Out $144.8-Billion Award Against Tobacco Industry,” Los Angeles Times, May 22, 2003; Barry Meier, “Tobacco Industry Loses First Phase of Broad Lawsuit: Jury Finds a Conspiracy to Hide Effects of Smoking”; “Smokers Win First Class-Action Suit Against Tobacco,” St. Louis Post-Dispatch, July 8, 1999; and Richard Willing, “Smokers’ Suit Could Have Far-Reaching Implications,” USA Today, July 6, 1999.

  35 Engle v. Liggett Group, Inc., No. SC03-1856, Supreme Court of Florida, 2006 Fla. Lexis 1480, July 6, 2006. [The appeal of Engle v. R.J. Reynolds is known as Engle v. Liggett.]

  36 Mollenkamp et al.

  37 M. Coller, G. W. Harrison, and M. M. McInnes, “Evaluating the Tobacco Settlement Damage Awards: Too Much or Not Enough?” American Journal of Public Health 92, no. 6 (2002): 984-989.

  38 Pringle, 30.

  39 “Billion-Dollar Legal Fees,” New York Times, February 11, 1998; and “Mining the Torts,” Forbes, July 7, 1997, 44.

  40 Orey, 265.

  41 Michael Janofsky, “Mississippi Seeks Damages from Tobacco Companies,” New York Times, May 24, 1994; Junda Woo, “Mississippi Wants Tobacco Firms to Pay Its Cost of Treating Welfare Recipients,” Wall Street Journal, May 24, 1994; and Mollenkamp et al., 29.

  42 Orey, 268.

  43 Ibid., 270.

  44 Pringle, 31.

  45 Mollenkamp et al.

  46 Pringle.

  47 Orey, 281.

  48 Ibid., 282.

  49 Kevin Sack, “Tobacco Industry’s Dogged Nemesis,” New York Times, April 6, 1997.

  50 Tobacco Control Resource Center, Inc., “State Suit Summary,” The State Tobacco Information Center, http://stic.neu.edu/summary.htm.

  51 For more on the Mississippi story, see Christopher Caldwell, “The Pair from Pascagoula,” Weekly Standard, August 11, 1997, 24; Myron Levin, “Moore Scores Again Against Big Tobacco,” Los Angeles Times, July 4, 1997; Barry Meier, “Acting Alone, Mississippi Settles Suit with 4 Tobacco Companies,” New York Times, July 4, 1997; and Doug Levy and Peter Eisler, “The Tobacco Warrior: How Mike Moore’s Fight Against Cigarettes Fired Up His Future,” USA Today, July 16, 1997.

  52 There is extensive newspaper coverage of the deal: Glenn Collins, “An Entrepreneur’s High-Stakes Move,” New York Times, March 21, 1997; Alix M. Freedman and Suein L. Hwang, “Leaders of the Pact: How Seven Individuals with Diverse Motives Halted Tobacco’s Wars,” Wall Street Journal, July 11, 1997; Milo Geyelin and Suein Hwang, “Liggett to Settle 22 States’ Tobacco Suits,” Wall Street Journal, March 21, 1997; Myron Levin, “Under Oath, Liggett Owner Says Cigarettes Are Addictive,” Los Angeles Times, July 22, 1997; John Schwartz, “A Maverick’s Complaint: Liggett’s LeBow Broke Tobacco’s Ranks, but He Says the States Broke a Deal,” Washington Post, July 24, 1997; and Mollenkamp et al.

  53 Weiser.

  54 Sack.

  55 The most comprehensive account of the Minnesota lawsuit is Deborah C. Rybak et al., Smoked: The Inside Story of the Minnesota Tobacco Trial (Minneapolis, MN: MSP Communications, 1998). Other sources include: Michael V. Ciresi, “Decades of Deceit: Document Discovery in the Minnesota Tobacco Litigation,” William Mitchell Law Review 25, no. 2 (1999): 477-566; Andy Czajkowski, “Money Isn’t Enough,” Washington Post, March 28, 1998; Hubert H. Humphrey, “The Decision to Reject the June, 1997 National Settlement Proposal and Proceed to Trial,” William Mitchell Law Review 25 (1999): 397-405; “No Deal,” Philadelphia Enquirer, November 18, 1998; Jonathan M. Samet, “Reflections: Testifying in the Minnesota Tobacco Lawsuit,” Tobacco Control 8, no. 1 (1999): 101-105.

  56 Pringle, 210; Thomas Osdene, “Memo,” Bates No. 1000130803, http://legacy.library.ucsf.edu/tid/iyu53e00.

  57 David Phelps, “Tobacco Scientist’s Video Causes Stir on Both Sides; Company Memos to Push Case,” Star Tribune, February 18, 1998.

  58 Pringle, 211.

  59 Mark W. Gehan, Report of Special Master: Findings of Fact, Conclusions of Law and Recommendations , 1997, 38, http://www.tobacco.neu.edu/bix/BOEKENBox/MN%20Crime%20Fraud%20Background/2%20Report%20of%20Special%20Master%2020091097.pdf. See also Ciresi.

  60 Stanton A. Glantz, The Cigarette Papers (Berkeley: University of California Press, 1996), 288-327.

  61 Ibid.

  62 J. Kendrick Wells III, “Southampton Smoking and Health Material,” June 15, 1979, Bates No. 680585391/5392, http://legacy.library.ucsf.edu/tid/hfy95a00.

  63 J. Kendrick Wells III, Brown & Williamson, “Conference with BAT Legal on U.S. Products Liability Litigation,” June 12, 1984, Bates No. 685092972/2974, http://legacy.library.ucsf.edu/tid/lgx95a00.

  64 Ciresi, 477-566.

  65 Rybak et al.

  66 Glenn Collins, “Marketplace: Is That a Crack in the Tobacco Industry’s Legal Wall, or a Shadow?” New York Times, August 13, 1996.

  67 Barry Meier, “Cigarette Maker Is Liable in Smoker’s Death,” New York Times, June 11, 1998.

  68 Barry Meier, “Florida Court Voids Verdict Against Tobacco Company,” New York Times, June 23, 1998; Thomas C. Tobin, “Ex-Smoker Savors Tobacco Win,” St. Petersburg Times, July 16, 2001; and Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d (Fla. 2000).

  69 Harriet Chiang, “Madelyn Chaber, Godmother of Tobacco Suits,” San Francisco Chronicle, November 20, 2002.

  70 Myron Levin, “High Court Turns Away Philip Morris,” Los Angeles Times, March 22, 2005; Bob Egelko, “Tobacco Damages Upheld; Philip Morris Must Pay $10.5 Million,” San Francisco Chronicle, March 22, 2005. In a subsequent individual smoker’s case in 2000, Chaber won an award of $21.7 million.

  71 Myron Levin, “Philip Morris Vows to Appeal Judgment to U.S. High Court,” Los Angeles Times, August 12, 2005; Myron Levin and Dalondo Moultrie, “L.A. Jury Awards $3 Billion to Smoker,” Los Angeles Times, June 7, 2001; and Myron Levin, “Widow’s Legal Battle with Philip Morris Ends,” Los Angeles Times, March 21, 2006.

  72 Patricia Lopez Baden, “State Tobacco Stock to Be Sold over 3 Years,” Star Tribune, September 3, 1998; Barnaby J. Feder, “Cigarette Makers in a $368 Billion Accord to Curb Lawsuits and Curtail Marketing: Companies’ Cost Would Be Great. But So Is Their Outlook for Profit,” New York Times, June 21, 1997; Alisa Gravitz, “Big Tobacco Going Way of Its Customers,” USA Today, April 9, 1997; Constance L. Hays, “Tobacco Stocks Recoup After Legislation Fizzles,” New York Times, June 19, 1998; and Larry Light, Irene Kunii, and Carol Matlack, “Smoke Alarms at RJR,” Business Week, November 16, 1998, 75.

  73 Michael Pertschuk, “Making Deals with the Devil: Beware of Big Tobacco’s Tricks,” Washington Post, May 11, 1997.

  74 Richard Kluger, Ashes to Ashes (New York: Knopf, 1996).

  75 “Billion-Dollar Legal Fees,” New York Times, February 11, 1998; “Greed Breeds Bad Case of Eye-Popping Leg
al Fees,” USA Today, December 9, 1997; John Kennedy, “Lawyer Fees Ignite Spat in Tobacco Deal,” Orlando Sentinel, August 29, 1997; and George F. Will, “The Tobacco Melee,” Washington Post, February 15, 1998.

  76 Barry Meier, “Cigarette Makers in a $368 Billion Accord to Curb Lawsuits and Curtail Marketing: Impact on Health: Hazy,” New York Times, June 21, 1997; Stuart Elliot, “Industry Still Has Many Weapons Available,” New York Times, June 21, 1997; and “A Worrisome Tobacco Deal,” New York Times, June 21, 1997.

  77 I have relied heavily on Michael Pertschuk, Smoke in Their Eyes: Lessons in Movement Leadership from the Tobacco Wars (Nashville, TN: Vanderbilt University Press, 2001) for my assessment of public health advocacy and the McCain bill. Pertschuk, a major figure in the development of tobacco control advocacy, offers an excellent “insider’s” view of the split in public health forces, who frequently consulted him during the debate.

  78 Orey, 365.

  79 David Phelps and Melissa Levy, “$7 Billion Deal: Minnesota, Industry Settle Suit Before Jury Starts Deliberations,” Star Tribune, May 9, 1998.

  80 Pertschuk, 37-38.

  81 Ibid., 48.

  82 Ibid., 50.

  83 Ibid.

  84 Ibid., 98.

  85 Ibid., 99, quoting Corporate Crime Reporter, May 5, 1997.

  86 Ibid., 100.

  87 Ibid., 97.

  88 Ibid., 101, quoting Sheryl Gay Stolberg, “Beleaguered Tobacco Foe Holds Key to Talks,” New York Times, June 4, 1997.

  89 Ibid., 107, quoting statement issued on May 2, 1997.

  90 Ibid., 133, quoting Henry A. Waxman, “The Tobacco Settlement; Don’t Sign It; on Balance, a Bad Deal for Public Health,” Washington Post, June 29, 1997.

  91 Ibid., 135, quoting Michael Siegel.

  92 See Ibid., 173.

  93 Martha A. Derthick, Up in Smoke: From Legislation to Litigation in Tobacco Politics (Washington, DC: Congressional Quarterly Press, 2002), 84, 143.

  94 Pertschuk, 191.

  95 Ibid.; and David Kessler, A Question of Intent: A Great American Battle with a Deadly Industry (New York: Public Affairs, 2001).

  96 “Spat over Tobacco Money Spotlights Big Donors,” USA Today, July 10, 1996.