Ashes to Ashes (131 page)

Although Edell was permitted by the court to explore the industry’s post-1966 conduct relating to its research into the health question, he had trouble impaling its witnesses even with the help of documents that seemed to suggest something other than an unswerving pursuit of the scientific truth. Cullman, for example, was shown the internal 1972 memo by Tobacco Institute Vice President Fred Panzer (see chapter 11, section
ii
) describing the industry’s strategy, of “creating doubt about the health charge without actually denying it.” Cullman said merely that he disagreed with Panzer.

A more slippery response greeted Edell’s introduction of a 1974 memo by Lorillard’s research director, Alexander Spears, to his CEO, Curtis Judge, stating that the Council for Tobacco Research’s program (see chapter 11, section
II
) avoided the core of the health problem and was devoted instead to “purposes such as public relations, political relations, position for litigation … .” Confronted with this letter that he himself had written fourteen years earlier, Spears, a thirty-year Lorillard veteran, said that his real objection to CTR’s program was its reliance on the grant method and that “certain areas of research … were not conducive to that approach,” citing smoke inhalation studies with animals, which he felt required “a large, cohesive effort by an organization rather than individual investigators;” thus, he thought CTR “ought to be doing contract research.” Edell, with narrowed gaze, asked Spears where in his memo there was any discussion of what he had just told the court; Spears insisted that his methodological objection was all he had intended to convey.

Because Spears had so casually brushed aside the plain English of his earlier sharp criticism, Edell decided not to put on Spears’s opposite number from Philip Morris, Helmut Wakeham, to explain the hortatory memos he had directed to his bosses in the ’Sixties urging an all-out drive to produce less hazardous cigarettes. Wakeham’s documents would speak better for themselves, Edell calculated, than if the imposing Philip Morris scientist were to take the stand and try to twist his own written words to meet the exigencies of a liability lawsuit. It would prove a costly miscalculation, because the references to Wakeham’s pointed recommendations were lost sight of in the long, complex trial.

Edell did better in getting on the record the saga of Freddy Homburger and his finally soured relationship with the Council for Tobacco Research and in disputing the testimony from former CTR scientific director Sheldon Sommers that the council’s research grants had nothing to do with the industry’s lawyers or any ulterior motives they may have had in defending tobacco manufacturers
from liability actions. Minutes produced from CTR files of meetings attended by both scientists and lawyers to discuss “special projects” for just such purposes (see chapter 14, section
viii
) could not be denied, nor could James Mold’s tale of how Liggett developed and finally suppressed its apparently less hazardous palladium cigarette. At the close of the plaintiff’s case, however, Judge Sarokin once again narrowed Edell’s claims by ordering the jury to disregard all the evidence about the palladium cigarette and Liggett’s failure to implement a safer alternative design of its product—grounds for a negligence claim—because the court found no persuasive evidence that Rose Cipollone would have smoked such a brand even if Liggett had marketed it. In fact, she said in her deposition that she had switched at least two times to brands that she perceived to be less hazardous to her health.

The patchwork nature of the disclosures in the internal industry documents that Edell put into the record worked against him. They could not be presented in an orderly fashion, indeed had to be shoehorned into the case in many instances, thanks to a tolerant judge, only to be denied or dismissed as the views of subordinate employees well below the corporate policymaking level. The press, like the jury, was unable to discern the pattern of denial and diversion Edell sought to attribute to the industry; only Mintz’s dispatches in the Washington
Post
drew attention to the industry documents in detailed fashion, much to the annoyance of a New York public-relations firm that Arnold & Porter had hired to perform damage control during the course of the trial. Its chief operative, buoyantly fraternizing with the attending reporters when he was not hectoring them, was publicist John Scanlon, who along with Shook, Hardy lawyer Charles Wall tried to give a pro-industry spin to each day’s testimony. They would supply texts and transcripts to facilitate the reporters’ task of deadline filing, then the next morning present blue-penciled critiques of published accounts in which an anti-industry bias was detected. Mintz was a particular target of this spin-doctoring since he got the most ink of any covering journalist and wrote for one of the nation’s most influential newspapers. Scanlon sent an aide to tell Mintz, according to the reporter’s account of the conversation, that “his people” were unhappy with Mintz’s coverage of the anti-industry witnesses Edell was parading before the jury and that the publicity agency was “going to take this to the highest levels in Washington,” meaning Mintz’s editors at the
Post
“I took this as a threat,” Mintz recounted, but he did not relent in his coverage of the anti-industry revelations.

At the end of the trial Scanlon made good on his threat, writing a four-page letter to Mintz’s immediate superior documenting how the reporter’s coverage was heavily weighted with testimony by the plaintiffs witnesses. The charge was correct, because in Mintz’s view, the witnesses and documents Edell was presenting were hard news, while the defense case consisted largely of familiar recitals by longtime recipients of tobacco money and a protracted examination
of Rose Cipollone’s medical history in order to plant doubt among the jury that smoking had caused her lung cancer. Scanlon charged that Mintz’s news judgment produced “patently unfair and biased coverage of the case” by a journalist with a “well-known anti-corporate bias” who was “so much of an anti-tobacco advocate that it is patently impossible for him to ever apply … standards of objectivity on this issue.”

The worst that could have been said of Mintz’s fair and accurate reporting on the trial was that it was selective. But selectivity among all available material is the essence of journalism; not all related facts, statements, or opinions are equally deserving of comparable treatment or inclusion in a given day’s story. Certainly there were no fiery castigations of the industry’s conduct in Mintz’s articles. The same, however, could not be said of the opinion Judge Sarokin issued in response to the defense’s motion for a directed verdict to dismiss the plaintiffs suit on the ground that the evidence Edell had presented had fallen so far short of the charges as not to deserve the jury’s consideration.

The evidence that Rose Cipollone had died from smoking-caused lung cancer was “overwhelming,” the judge wrote; the question of who was responsible for that outcome had to be viewed “in light of the activities of the defendants during this same time period. … The defendants and others in the tobacco industry not only failed to warn of the risks of smoking but to the contrary suggested that cigarette smoking was safe and harmless and, indeed, that this contention even had the support of medical doctors.” Evidenced by documents from the defendants’ own files, the tobacco manufacturers had “entered into a sophisticated conspiracy … organized to refute, undermine, and neutralize information coming from the scientific and medical community and, at the same time, to confuse and mislead the consuming public.” In connection with the defendants’ decision to lower the tar and nicotine content of their cigarettes and advertise the action, the manufacturers “did not and do not concede any relevance to health for fear of making an admission. Rather they contend that such products are merely an accession to a baseless consumer concern—an effort to placate and humor a misguided public which believes in a risk that does not exist.” More pointedly still, Sarokin noted the defense’s position that Cipollone “was sufficiently warned by what these defendants contend was un-proven and unreliable, and is barred from recovering from them if or because she believed what
they
said about the subject of smoking and health” (italics in original). Based on the evidence as a whole, a jury could “reasonably conclude” that the defendants had participated in a conspiracy “vast in its scope, devious in its purpose and devastating in its results.”

All that Sarokin had needed to write was “Motion denied.” Instead, the judge wrote in such a way that he appeared to be venting his rage toward gross corporate malefactors. Most press reports of his opinion barely noted his repeated
mitigating phraseology—“a jury could thus reasonably conclude from the evidence … ”—and dwelled on the scorching lines that followed.
The Wall Street Journal
headlined the story “Judge Says Tobacco Industry Hid Risks,” while one leading local paper, the
Record
of Bergen County, New Jersey, where a number of the jurors lived, headed its account “Judge Finds Conspiracy by Tobacco Firms.” Asserting that Sarokin must or should have known that his words would be taken as judgment of the plaintiffs claims, the defense moved—for the third time during the four and a half years the case had consumed—to have him removed as the presiding judge and called for a mistrial on the ground that the jurors had almost certainly read the judge’s words in the press even though they had not been present in the court when they were spoken.

Sarokin declined to take himself out of the case for exercising his judicial prerogative to write an opinion that he believed the evidence before him warranted, and a poll of the jury showed that none of its members had read or heard anything about his heated ruling. The defense, never in much doubt about where Sarokin’s heart resided in the case, could only lament what Murray Bring would afterward call “a diatribe against the industry—even before he heard our evidence.”

Vi

THE
defense’s evidence consisted for the most part of a procession of witnesses contesting the exact type of lung cancer that Rose Cipollone had died from. Her attorney, fearful that the rest of his case could founder if he did not thoroughly clinch the causation issue, let himself be led down this diversionary pathway for weeks of highly technical testimony, the net effect of which was to befog the question in the jurors’ minds. One of the defense team’s attorneys confided after the trial, “It would have been risky but gutsy if Marc had sidestepped the whole technical argument by telling the jury, ‘Whether she had an atypical carcinoid or oat-cell lung cancer isn’t the point—Rose Cipollone died of lung cancer, and you all know what caused it.’”

The defense, of course, was playing a two-faced game. The industry’s position had steadfastly been that it remained unproven that smoking caused
any
form of lung cancer—or, for that matter, any other disease. Why, then, were the company lawyers trying to convince the jury that she had had one kind of lung cancer instead of another? But Edell did not hammer at this subterfuge. Nor could he overcome the basic vulnerability in his own case—namely, trying to blame his client’s death on the industry’s failure to warn her early enough about the risks of smoking when, as he also contended, she was hopelessly addicted to cigarettes almost from the first and thus powerless to break
her dependency. How, in that event, could any industry warnings have helped her? Besides, she did not even try to quit after the warnings were introduced by law; what evidence was there that she would have quit if they had been on the packs and in ads earlier? Edell’s own expert witness on drug addiction conceded on the stand that his interview with Rose did not enable him to deny that she could have quit smoking, although years of reinforcement of the addiction had reduced “her flexibility”. Even after her first lung cancer operation, he noted, she continued sneaking cigarettes, hiding them from Tony in her piano bench. Such testimony, defense attorney Bleakley recalled later, “was just what we wanted—we didn’t need our own witness” on the addiction question.

Rose’s failure even to attempt the travail of quitting also undermined Edell’s ability to take advantage of a potentially huge break that occurred outside the courtroom during the closing stages of the trial. Surgeon General Koop released his annual report on smoking and health, this one devoted entirely to nicotine addiction. In it, Koop finally put to rest the judgment made in the original 1964 report that chronic smoking was more akin to a bad habit than a serious medical problem waiting to happen. “Cigarettes and other forms of tobacco are addicting,” the 1988 report asserted; the pharmacological and behavioral processes contributing to it “are similar to those that determine addiction to drugs such as heroin and cocaine.” The medical profession and the public at large were urged once and for all to set aside any lingering conception of smoking as a nasty little trait like nail-biting and of smokers as weak-willed and self-indulgent. The Tobacco Institute lost no time in dismissing the report by asserting it “runs counter to common sense, as proved by the fact that people can and do quit smoking when they make the decision … .” The
Cipollone
jury, as it soon turned out, agreed.

In the end, Edell was victimized perhaps less by his client’s smoking history than by his own conscientiousness. His ambition was to bring down the whole industry—he saw no other way to win damages for his client; as a result, he tried to crowd too much into one trial, too much history, science, medicine, marketing, and psychology; too many witnesses who droned on too long; too many documents, the import of which was not made clear or threaded together. It was an overwhelming presentation for one jury to digest, and it was not helped by the defense’s constant objections. Judge Sarokin, sensitive to industry charges that he was a less than neutral arbiter, entertained many of these objections in lengthy sidebars during which the jury was excused from the courtroom. These repeated interruptions broke the flow of Edell’s argument and unduly prolonged the entire proceeding. And while Edell never stopped trying to expand his case into a vilification of an entire industry allegedly conspiring against the public for the better part of a century, the defense kept trying to narrow the case to the questions of what and when Rose Cipollone knew about the risks of smoking. Documents revealing what the industry knew,
when it knew it, and what it did and did not do about it were all but ignored by the defense lawyers or trivialized as out-of-context remarks by underlings.