After all the smoke clearedAn in-the-trenches look at how the war against Big Tobacco got
wonBy Lance Morrow
September 20, 1999
Web posted at: 3:50 p.m. EDT (1950 GMT)
Old thinking: if you smoke cigarettes, what ever happens to your
heart and lungs is your own damned fault. Cigarettes are a legal
product, voluntarily purchased and consumed. Don't come whining
to the courts when you see a shadow on the X ray. Caveat fumor.
New Thinking: Big Tobacco knowingly sells a defective product
that, when used exactly as intended (i.e., you smoke the thing),
addicts the consumer to nicotine and eventually sickens and kills
him. Big Tobacco should pay billions in damages, not only to
smokers and their families but also to state governments to cover
the smokers' Medicaid expenses.
In Assuming the Risk: The Mavericks, the Lawyers, and the
Whistle-Blowers Who Beat Big Tobacco (Little, Brown; 384 pages;
$24.95), Michael Orey, an editor at the Wall Street Journal,
describes the American journey from a public attitude of "Tough
luck, buddy" to the group-grievance activism of the '90s, brought
to lucrative fruition in lawsuits--by Mississippi, Minnesota and
38 other states--that have extruded from the tobacco industry the
promise of close to $250 billion, to be paid out over 25 years.
It's a long way from the old mentality to the new--the trip being,
in part, a symptom of American cultural change. The transition,
as of 1999, is incomplete. Old Thinking still has plenty of
adherents. New Thinking may not prove to be entirely a story of
virtue triumphant over death-peddling greed; it may instead
merely introduce new forms of consumer taxation (higher cigarette
prices) and lawyer enrichment, while people go on smoking and
dying as before.
Orey dramatizes rather than sermonizes. Assuming the Risk, a
first-rate exercise of narrative journalism, assembles an
eccentric cast of characters. Don Barrett, for example, was a
garden-variety white racist as a student at the University of
Mississippi ("I do feel that the Negro is inherently unequal," he
told a New York Times interviewer in 1963, around the time James
Meredith was integrating Ole Miss). In the fullness of time, he
became a born-again Christian and crusading lawyer who took up
the cause of Nathan Horton, a black carpenter and contractor who
smoked two packs of Pall Malls a day, developed emphysema and
lung cancer and filed suit against the American Tobacco Co. for
$1.5 million in damages in 1986. Horton died in early 1987, but
Barrett and the Horton family kept up the fight.
The first court battle ended in a mistrial. On retrial, the jury
embraced New Thinking by finding American Tobacco liable for
Horton's death--a conceptual breakthrough. But Old Thinking
lingered: the jury figured, at the same time, that Horton had
obviously brought cancer on himself and awarded zero dollars in
damages.
Next came industrial espionage. Orey introduces an engaging,
skittish misfit named Merrell Williams, a Ph.D. in theater with
an intermittent drinking problem and an inability to hold a job
until he went to work as a paralegal doing closely held research
for Brown & Williamson Tobacco. The object of Williams' work was
to determine what B&W execs knew about the effects of tobacco and
when they knew it, to help company lawyers fight future damage
claims. Out of a sometimes fuddled sense of righteousness,
Williams began smuggling documents from the B&W offices and
copying them. The pilfered papers--which among other things
documented the company's efforts to market to kids and its
knowledge years ago of nicotine's addictive effects--eventually
found their way into the national media. Williams' dossier, along
with the whistle blowing of B&W's former chief of research,
Jeffrey Wigand (whose story will be told in the upcoming movie
The Insider), formed the core of the states' case against Big
Tobacco.
Finally, Orey focuses on Mississippi attorney general Mike
Moore's brainstorm: his novel lawsuit against the entire tobacco
industry to recover the state's Medicaid costs. The idea worked
with thermonuclear effectiveness, blowing tobacco's safe and
unlocking the dirty billions.
It's a fascinating story, though somewhat disgusting, all
around, from a moral point of view, being mostly about money and
therefore--considering all the ambient death and
suffering--weirdly beside the point. It is a little difficult,
despite Orey's exertions on behalf of the antitobacco lawyers,
to find heroes in the drama. Riches are redistributed from one
class of the venal to another. Mississippi's Medicaid legal team
is awarded fees of $1.43 billion. Dick Scruggs, a leader of the
team, buys himself a bigger private plane and a $200,000
Bentley; he trades in his 61-ft. motor yacht for one 30 ft.
longer. Justice triumphs.
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Cover Date: September 27, 1999
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