Ashes to Ashes (132 page)

Peter Bleakley closed effectively for Philip Morris: “I suggest to you that there isn’t anybody who’s ever smoked who didn’t know … that there were claims that cigarette smoking is bad for you.” But Philip Morris had acted responsibly once those claims were linked to scientific charges, Bleakley asserted, by slashing the tar and nicotine yields of its brands in half between 1950 and 1966—“They changed their product”—and by entering into ongoing research on the health issue. The jury was not there to make any sweeping social judgments, Bleakley said, about whether smoking was good or bad or cigarette manufacturers spent too much on advertising or too little on research, because that was not the point of the Cipollone suit. “[M]ake no mistake about it, ladies and gentlemen, that is what this case is all about—money,” whether Tony Cipollone, who had come to court every day in his royal blue sleeveless sweater and stood vigil over the proceedings, was entitled to collect damages from any of the defendants in behalf of his beloved Rose. Her death at fifty-eight, the star defense counsel concluded, was tragic, to be sure, and “There is no one in this courtroom that doesn’t hope that medical science very soon will figure out … what exactly causes cancer—lung cancer—and how to cure it.”

Drained by his herculean effort, Marc Edell managed a five-hour summation in which he tried to tie together the immense package of charges he had taken years to assemble. Alas, he lacked the courtroom command, the rhetorical grace, and, at the end, the sheer energy to heap moral indignation upon the defendants. But he soldiered on to the end, telling the jury:

You represent the American people … . You have the power to regulate one of the most powerful industries in the world. In this courtroom there are no deals … just the truth. … You can tell the tobacco industry it is okay to withhold information … to distort information … to mislead people … to lie to people—it’s okay. Or, as the first jury ever to see the internal workings of this industry [you] can say, “That is it. We have had enough … this is not acceptable behavior.”

But the jury did not do that. After four and a half days of deliberation, it emerged with a somewhat confusing verdict that, when finally disentangled, was a sizable, if costly, victory for the cigarette makers. The newspapers and evening news telecasts, at last aware of the dimensions of
Cipollone
v.
Liggett
, led off their reports of the day’s events with the sensational fact that for the first time, a tobacco company would have to pay damages to the family of a stricken smoker. Liggett was held to have been negligent for its failure prior to 1966 to warn smokers adequately of the health risks presented by their brands
and for advertising that was interpretable as a warranty of product safety. Yet the jury awarded no damages to the estate of Rose Cipollone, because the company was found to have been only 20 percent responsible for her death—her own behavior was preponderantly at fault, and New Jersey law required a finding of at least 50 percent responsibility by the defendant for damages to be awarded. Almost as a consolation prize, however, the jurors awarded Tony Cipollone $400,000, apparently for having been a dutiful and concerned husband to the deceased claimant. Philip Morris and Lorillard, whose brands Rose smoked after the 1966 warnings began, were let off entirely. As to the claim of an industry-wide conspiracy to confuse and mislead the American public in order to sustain glittering profits, the jury found no fraud or intentional tort. All the illuminating documents amounted to no more than disparate fragments, hinting at deceptive conduct, perhaps, but far from conclusive and never firmly pinned to top executives, only to subordinates with the temerity at times to speak the truth.

Edell, regretful that he had never deposed Rose himself so that a more sympathetic presentation might have been made of her plight, nevertheless professed to be “very, very happy” with the outcome. “We won where nobody else has won before,” he said, and while the monetary rewards did not begin to cover the nearly $3 million that the plaintiffs case had cost to sustain, Edell had other smoking claimants’ cases lined up ready to build on the evidentiary and procedural gleanings of
Cipollone
. Not to be lost sight of was the enormous legal bill that the tobacco industry had had to absorb over the duration of the case; estimates ranged between $30 million and $50 million.

Still, Murray Bring could claim a substantive victory for the industry, which soon set about appealing the somewhat bizarre jury verdict and getting the $400,000 award vacated. Liggett’s lawyers argued that Judge Sarokin had erred in failing to instruct the jury that in order for it to find a breach of the warranty that the company’s pre-1966 advertising
(e.g.
, “Just what the Doctor Ordered”) was said to have constituted, the plaintiff would have had to rely on it in her decision to begin or to continue smoking—it was not enough to show merely that the offensive ads existed—and Rose Cipollone’s lawyers had not so proven. The award to Tony Cipollone, moreover, was said to be entirely inappropriate in view of the jury’s failure to hold Liggett more than 20 percent responsible for causing the claimant’s death. Edell, for his part, appealed on the grounds that Sarokin had erred in stripping away the heart of his intentional tort case in disallowing evidence on the defendants’ alleged post-1966 behavior to subvert the warning labels and in applying retroactively the 1987 New Jersey tort “reform” law. The Third Circuit eventually agreed with both parties’ appeals, holding that Sarokin had failed to instruct the jury properly on the warranty question, that the $400,000 award of damages was not justifiable under law—once again, the industry’s record of never having paid a penny in
damages was intact—and that the trial judge had read too much into the appeals court’s earlier reversal of Sarokin’s opinion that the federal labeling laws had not preempted smokers’ liability suits based on failure-to-warn claims. Edell was free to seek a retrial and pursue his fraud and conspiracy case using post-1966 evidence. Meanwhile, the New Jersey Supreme Court, in a hearing on
Dewey
v.
Reynolds Tobacco
, the second of Edell’s cigarette liability cases ready for trial, ruled that, despite the holdings of five circuit tribunals of the U.S. Court of Appeals, state common-law suits by smokers could proceed on the claim of inadequate post-1966 warnings and that Edell’s cases against the tobacco companies could not be blocked retroactively by the New Jersey legislature. The stage was set for the U.S. Supreme Court to resolve these conflicting decisions.

The Justices heard the arguments twice, the second time to accommodate the high court’s newly arrived member, Clarence Thomas. In mid-1992, the Supreme Court held, seven votes to two, for the tobacco industry’s position that the 1970 revision of the federal cigarette labeling law was so worded that any award of damages by state juries on the claim of inadequate health warnings by the cigarette manufacturers in their packaging, advertising, and promotion would frustrate the congressional intent of establishing a single nationwide warning program. Nor could it be persuasively argued that the depiction of attractive and vigorous people in cigarette advertising was part of a scheme to undermine the federally mandated warnings; vendors had historically and naturally used such images to help sell their wares. But the Court’s decision was by no means an unalloyed victory for the industry. The Justices also agreed with Edell’s contention that the trial court had unfairly stripped away his post-1966 conspiracy claim—that the industry had concealed or misrepresented the truth on the smoking and health issue—on the invalid premise that because the plaintiffs failure-to-warn claim had to be limited to the industry’s ads and promotion prior to that date, the intentional tort charges had to be similarly confined. As Justice John Paul Stevens wrote, “Congress offered no sign that it wished to insulate cigarette manufacturers from long-standing rules governing fraud … .” The case was remanded for retrial on that issue, and Edell announced his intention to show that the companies had indeed conspired to mislead the public.

But Edell had two problems to overcome. The first, which was soon to prove fatal, was the need for a continuing subsidy by his law firm, whose members had to make a cold assessment of Edell’s chances of prevailing. That estimate was necessarily colored by the second of Edell’s obstacles: even if he could put together a convincing case of industry-wide deception, could he get a jury to conclude that Rose Cipollone, or any of his other claimants, had begun and kept on smoking
because
of the companies’ misconduct?

Edell’s hopes had been buoyed four months before the Supreme Court decision,
when Judge Sarokin, who was also assigned to
Haines
v.
Liggett Group
, another tobacco case, had ruled in favor of Edell’s effort to obtain documents from the Council for Tobacco Research, and especially those dealing with its “special projects,” involving company lawyers and research scientists to whom they gave grants. Based on documents Edell had uncovered in
Cipollone
, Sarokin held that a “reasonable jury could conclude” that the tobacco companies had “sought to discredit or neutralize the adverse information [on smoking and health] by proffering an independent research organization,” whose primary purpose was in fact “directed at finding causes other than smoking for the illnesses being attributed to it”—and that the CTR’s “announcement of proposed independent research into the dangers of smoking and its promise to disclose its findings was nothing but a public relations ploy—a fraud—to deflect the growing evidence against the industry … .” As he had also done during the
Cipollone
trial in denying the defense’s motion for a dismissal of the case, Sarokin rose to rhetorical heights of indignation in stating an opinion that could have been offered at a far lower pitch. His February 2, 1992, ruling began:

… All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.

Edell was thus empowered to present nearly 1,500 documents to a special master Sarokin was to name to determine if they were protected under the attorney-client privilege or, because the industry lawyers may have been parties to wrongful acts, could be used in pursuit of the claimant’s charges of conspiracy.

Later that year, the Third Circuit finally bowed to the tobacco industry’s repeated efforts to get Judge Sarokin out of its hair. He was ordered removed as the judge in pending tobacco liability cases because his opinion on the admissibility of documents in
Haines
contained language that gave the appearance of bias against the defendant companies. Sarokin registered surprise and unhappiness at this rebuke, saying that he thought it was his judicial duty to speak the truth in his opinions so long as they were based on an adequate factual record before his court. Some of Sarokin’s friends and admirers, of whom there were legion, believed privately that, in venting his frustration over the outcome to date in
Cipollone
and the dubious prospect of other smoking
claimants’ cases, he had veered from the narrow path of dispassion into the thickets of judicial, not to say injudicious, retribution. But to the more passionate elements in the antismoking camp, Sarokin’s reprimand seemed without justification. Richard Daynard, chief architect of the products liability crusade against the tobacco industry, commented, “He called it straight and did it in a way that was highly quotable. I had always thought that one of the functions of judges was to show moral indignation … .”

The loss of Sarokin, despite some of his restrictive rulings in
Cipollone
, was a severe setback for Edell. His successor in the tobacco liability cases would probably not be as tolerant in matters like qualifying experts and the admissibility of evidence—a problem that would arise at once now, because the Third Circuit, in removing Sarokin, had also vacated his opinion allowing the CTR documents to be considered in support of conspiracy charges against the cigarette makers. Then, too, Tony Cipollone had died, and his and Rose’s children were unenthusiastic about pursuing the case in their mother’s name. Edell’s firm had grown even more unenthusiastic about carrying on the problematic, expensive, and seemingly endless struggle. With reluctance, Marc Edell ended his undermanned fight to humble the tobacco lords. But he had cost them millions in expenses and generated a body of evidence in their own words and writings which testified to an American industry’s long unwillingness to deal straightforwardly with the society that licensed it.

Smooth Characters