Ashes to Ashes (129 page)

What did all of Edell’s findings amount to? He had discovered no evidence about the lethal nature of cigarette smoking buried in the industry’s cellar, or about the pathological mechanisms tobacco smoke set in motion, that was not already largely known to the scientific and public-health communities. What Edell had uncovered were numerous indications that the tobacco industry had
not been dealing straightforwardly with the public but had been acting in deceptive ways to ease its customers’ growing anxieties over the health charges. Whether that constituted a criminal conspiracy would be left to the jury to decide.

III

BE S I D E S
granting Rose Cipollone’s counsel wide latitude in the discovery process, Judge Lee Sarokin made a ruling a year into the case that seemed to suggest even more clearly where his sympathies lay. He denied a motion by the tobacco companies’ defense team arguing that liability suits like Mrs. Cipollone’s had been prohibited by Congress when it crafted the warning label legislation.

Neither the language of the 1966 and 1970 labeling statutes nor anything in their legislative history, Sarokin held, revealed congressional intent to foreclose liability in tort claims; if so intended, the acts would have stated that explicitly, and even if they were interpreted to mean that the cigarette manufacturers needed to affix no stronger warnings in order to fend off claimants with an assumption-of-risk defense, the industry was still exposed to liability charges for collateral efforts “to neutralize or negate the effects of the warning” by trying to convince the public that the health risk of smoking was minimal and causation unproven. Any damages a jury might award were not tantamount to a “requirement or prohibition” under state law, as Congress meant those terms, but served to shift the burden of losses suffered by use of a dangerous product to “those who are in a position to either control the danger or to make an equitable distribution of the losses when they do occur.” The federal cigarette labeling laws, moreover, said only that it was illegal not to place the specified warning on all packages, thereby fixing a level of conduct below which the manufacturers should not fall; the statutes were “silent as to additional information or warnings that might also be included. … [I]t would be unfortunate if those directed to do no less, assume they need to do no more.” With this aphoristic bent, Sarokin gave the defendants a final jab, remarking, “[L]egal minimums were never intended to supplant moral maximums.”

Philip Morris counsel Bring called Sarokin’s sixty-page ruling a “brilliant job of crafting an opinion with very little to support it.” The U.S. Court of Appeals for the Third Circuit agreed with Bring’s assessment and, in an almost offhand three-page reversal of Sarokin’s opinion, held that common-law damage awards by state juries did have the effect of requirements that were capable of creating an obstacle to “the accomplishment of congressional objectives.” It concluded that any liability suit based on the adequacy of the manufacturers’
warning after the congressional mandate went into effect in 1966 was barred.

Some legal commentators thought the Third Circuit reversal was motivated at least in part by fear that, if encouraged, such liability suits by aggrieved smokers would bollix up the federal judicial system for years, even as suits by injured asbestos workers had threatened to—and there was a far larger number of potential smoker-plaintiffs. Whatever covert motives the circuit judges may have harbored, their ruling on its face left Judge Sarokin “in vehement disagreement” with what he saw as the unconscionable implications of their reading of Congress’s intentions. In spelling out what causes of action remained to the plaintiff, the district judge wrote that “the cigarette industry evidently can continue to deny or refute the risks of cigarette smoking with impunity and immunity so long as the little rectangle with the necessary language appears in its advertising and on its cigarette packages.” In a parting blast at his appellate overseers, Sarokin thundered that under the circuit opinion, the cigarette makers’ concealment of the truth from the public

is deemed to be an activity which Congress impliedly intended to protect in enacting this [labeling] legislation. In essence, without any express authority from Congress, a single industry, for the first time in our country’s history, may speak what is untrue, may conceal what is true, and may avoid liability for doing so merely by affixing certain mandated warnings to its products and advertising.

However soaring Sarokin’s language, his reading of the Third Circuit reversal was as expansive as his reading of the federal labeling laws had been narrow. The circuit had not held that anything the tobacco companies said about the health risks of their product after the labeling began was permissible; it held that the adequacy of the warning could not be challenged. “He interpreted the Circuit ruling much too broadly,” Edell said after the trial. “I think he was intimidated.” Whatever caused Sarokin’s sharp swing in reaction to the overruling, the plaintiffs ability to introduce evidence of the industry’s conduct on the health issue over the final eighteen years of Rose Cipollone’s life
(i.e.
, after the warning labels were required) was now sharply reduced.

Edell suffered an equally severe blow almost on the eve of the trial. During the summer of 1987, a year in which the tobacco industry spread a million dollars in campaign contributions among the members of the New Jersey legislature, the lawmakers of that state had passed a “tort reform” law, partly in reaction to excessive jury awards to claimants in product liability actions. It was hardly accidental, with the
Cipollone
trial imminent and threatening the financial security of the cigarette makers as no tobacco case ever had, that the industry’s lobbyists had taken the lead in trying to end New Jersey’s national leadership in the pro-consumer reading of liability law.

The “reform” in effect wrote into law the “Comment i” language of the
Restatement of Torts
, which had said that “Good
[i.e.
, unadulterated] tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful,” for it was universally understood that the custom was risky and ought therefore not to be subject to liability claims. The New Jersey Supreme Court had decisively declined to accept the logic of that view, which served to reward manufacturers by shielding them precisely
because
their products were so dangerous that everybody knew it. Instead, the New Jersey high court had held such products to strict-liability standards, insisting on a risk/utility test and casting aside warnings as a complete defense. In 1987, however, the state legislature turned a decade of rulings by the state courts on their head by outlawing liability suits over unavoidably dangerous products that were understood by the community at large to involve high risk; alcoholic beverages, guns, meat, and dairy products were cited as examples along with tobacco.

The only real question about the 1987 law was when it would go into effect. According to its own text, the act was to become effective immediately, except that “any new rules” which it established were to apply only to liability suits filed on or after the date of enactment. This language seemed to say that
Cipollone
and other tobacco liability cases that Edell had filed as long ago as four years earlier were not covered by the new statute, and that strict-liability standards could still be applied to those claims. That the statute was intended to be a sharp departure from the prevailing New Jersey common law—and thus constituted a “new rule,” as the tort revision act specified in exempting suits previously filed—was explicitly stated by the bill’s sponsor, by the accompanying statement from the New Jersey Senate’s judiciary committee, and by the Democratic legislators’ staff analysis. But the defense lawyers in
Cipollone
pointed instead to a statement by the State Assembly’s insurance committee, claimed by the plaintiffs counsel to have been drafted by a well-known Morristown attorney who was a registered lobbyist for the tobacco industry, which said the new product liability law was merely putting into statutory language what the New Jersey courts had previously embraced—namely, the “Comment i” exemption of unfixably dangerous products so known to the public. This was plainly an incorrect reading of the status of product liability law in New Jersey, but if accepted, would have meant that Edell’s cases could be denied strict liability as a cause of action.

Astonishingly, given Sarokin’s prior rulings in
Cipollone
, he accepted the defense’s interpretation of the legislative intent, even though he found it “offensive … that a litigant in the midst of ongoing litigation can prevail upon the legislature to eliminate a cause of action pending against it, particularly if that legislation is procured through the submission of intentionally misleading facts.” But it was not a “fact” that the liability revision was merely codifying previous state common law, as Edell now desperately argued in appealing to
Sarokin to reconsider his ruling. Interpretive statements by legislative committees were not a part of any statute nor could they usurp the power of the courts to interpret the judicial meaning of a body of common-law rulings, the plaintiffs counsel said. The Assembly committee statement, moreover, had been “drafted by a special interest group, without hearing or debate … and released after the bill had already been voted on by the Senate,” Edell stressed.

But Sarokin felt he had no choice; strict-liability and risk/utility causes were retroactively cut out from Edell’s case. Some felt that the judge, his sympathies in the case being no secret, was bending over backwards to be fair to the defense in order to avoid further reversals of his rulings.

IV

MARC EDELL’S
hopes of becoming the first trial lawyer to beat the tobacco companies were further threatened by a pair of liability suits that reached their juries before his case did. One of them was brought by the flamboyant Melvin Belli, who in Louisiana in 1958 had argued the first tobacco liability case to reach a jury. In late 1985 he filed a claim of $100 million in behalf of Mark Galbraith, a three-pack-a-day smoker who had died at sixty-nine, against R. J. Reynolds Tobacco in Santa Barbara, California, county court. It was the first such action to go before a jury in fifteen years, and Belli made a typical splash, arriving in the coastal city with his entourage aboard a yacht and wearing cowboy boots.

But
Galbraith
was not one of Belli’s better efforts. One problem was that the deceased plaintiff, who had long suffered from multiple afflictions including tuberculosis and heart disease, was said to have died from arteriosclerosis and pulmonary fibrosis with lung cancer held to be also contributory—all smoking-related diseases, but the first two were multicausal, and no autopsy had been performed that might have implicated smoking more centrally. Belli, moreover, had uncovered no enlightening industry documents, as Edell had, and was peeved when the latter said he was unable to share the fruits of his own discovery until his trial court had ruled on his request to do so. Belli was hampered, too, by the county judge, who tossed out the Surgeon General’s reports as hearsay evidence, and examples of the defendant’s advertisements intended to show how they constituted express or implied warranties of smoking safety were never introduced. Finally, there was substantial testimony that the plaintiff had, like Rose Cipollone, spurned many warnings by family and friends to desist from heavy smoking and was fully cognizant of the risks of continuing. The jury found for the defense, 9 to 3, holding that neither causation nor addiction had been proven.

A more promising case for the plaintiff was argued in Holmes County, Mississippi,
in January 1988, just before
Cipollone
was heard. Nathan Horton, a fifty-year-old African-American carpenter and contractor who smoked Pall Malls, had filed in May 1986 for $17 million in damages from American Tobacco, not on the claim that he had been improperly warned of the risks by the company but because its cigarettes had been adulterated by the use of fertilizers and pesticides in excess of the government-approved limits—a charge that the company said was true for several years but denied was the cause of Horton’s death from lung cancer eight months after launching his case.

There were several reasons to believe that the plaintiff might prevail in the trial of
Horton
v.
American Tobacco
, postponed twenty-two times. To start with, Mississippi had one of the most liberal comparative fault statutes of any state, so that a plaintiff demonstrating even 5 percent responsibility for injuries due to the manufacturer’s actions could be awarded damages. Then there was the fact that blacks made up the majority of the population in Holmes County. The jury consisted of eleven blacks and one white, and half of its members were unemployed; some observers felt that the jury might relish punishing an establishment white corporation in behalf of a black plaintiff. Horton’s lawyer told the court, “We accept our responsibility. The American Tobacco Company refuses to accept theirs, and that’s what this lawsuit is all about.” In an emotional appeal, Horton’s wife would testify at the trial that her husband had tried to quit smoking on several occasions by buying candy but had never managed to go more than a few days before lapsing. Of his illness she said, “His nights were so long. Sometimes I would wake up, and he would just be staring up and … crying, tears rolling down his face. I would try to hug him, and he would say it hurt too much.”

After hearing witnesses for the defense deny that smoking had been proven causally related to lung cancer, the jury deliberated for eleven hours, and then the judge called a mistrial “for reasons I do not feel would be advantageous to anyone” to reveal—certainly a novel theory of justice even in remotest Mississippi. Rumors of jury-tampering soon swirled, along with reports of how American Tobacco had spread a lot of money around Holmes County. One “consultant” for jury selection admitted to improper contact with three jurors during the course of the trial but said that their conversations had had nothing to do with the substance of the case and that two of the three were in fact siding with the plaintiff at the time the trial was halted. No tampering charges were proven, and two and a half years later the case was retried, this time in the university town of Oxford, Mississippi, before a jury of eight Whites and four blacks. The jury held that the company had been “irresponsible” in monitoring the quantities of fertilizers and pesticides used in growing its tobacco, but it awarded not a dollar to the heirs of Nathan Horton.