Cornered (24 page)

Six months after Yeaman's memo, in January 1964, Surgeon General Luther Terry published his report declaring cigarette smoking was causally related to lung cancer in men and cigarette smokers had a higher rate of coronary heart disease. The in-house lawyers of the six biggest tobacco companies, R. J. Reynolds, the American Tobacco Company, Brown & Williamson, Philip Morris, Liggett & Myers, and Lorillard, began immediate action to counter what they expected would be a flood of new lawsuits. They formed a new policy body known as the Committee of Counsel to guide company policy on research into smoking and health. This body was supported by six lawyers from outside firms who formed what was known as the ad hoc group, which was chaired by David Hardy. These outside law firms began compiling lists of medical and scientific literature specifically for use in litigation. R. J. Reynolds, then the company with the biggest market share (36 percent, American was second with 23 percent, and B&W was third with 11 percent), had more than 20,000 scientific papers on record by the summer of 1964.

That fall, the two British tobacco-industry researchers, Philip Rogers and Geoffrey Todd, who had toured the companies and interviewed officials, wrote of the dilemma posed by the lawsuits in the United States. “The manufacturers have to choose,” they said, “between (a) doing no smoking and health research and being represented in lawsuits as negligent … [and] (b) doing smoking and health research and being forced to admit in lawsuits that their experiments have caused cancer in animals and yet they have made no changes in tobacco smoke to eliminate the tumors. The manufacturers have chosen (a).”

Like Clarence Little, Hill & Knowlton would find themselves ignored in the aggressive lawyer takeover. The PR agency found it increasingly difficult to provide workable counterattacks to what was now the consensus of scientific thought: that smoking was a cause of lung cancer and probably also of heart disease. But the Hill & Knowlton executives also found the industry increasingly reluctant even to talk about their problem. “We had influence on policy at the beginning,” recalled Loet Velmans, who had begun working at the agency during the health scare of the mid-1950s and later became H&K's chief executive officer. “We could consult with [the client], on what areas of research more specifically to look at, in terms of lung disease and, later, heart disease [but post-1964] the client shut us out after a couple of years, because he probably knew more than he would ever admit.” The agency's original enthusiasm for defending the tobacco industry quickly faded. Velmans recalled, “Hill & Knowlton's position was, ‘What are we doing in all this? We are only raking in money. But we are a privately owned company; we'll get another account or two, and we'll replace that.'” After a decade of promoting the U.S. tobacco industry as a caring concern that spent millions ensuring that smokers were not taking undue risks, the agency closed the account. Another Madison Avenue firm, Leonard Zahn, took over but they were never as important as H&K had been. The lawyers were now in charge.

The decade following the Surgeon General's report would see the rise to extraordinary prominence of a group of industry lawyers led by David Hardy. There would be no admission of the harmful effects of smoking, no acknowledgment that nicotine is addictive, no massive research to find the cancerous substances in tobacco smoke, and no policy to develop a “safe cigarette” as free as possible from carcinogenic compounds. Instead, in-house scientific reports would be monitored, censored, and hidden from public view in a scheme to keep the fabulously lucrative enterprise alive and free of government regulation.

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H
OW A SMALL LAW FIRM
located hundreds of miles from the tobacco fields and cigarette factories of Virginia and the Carolinas became the industry's favorite defender was a chance affair.

In 1962, a Missouri man named John Ross, a heavy smoker of Philip Morris brands, lost his larynx to cancer and filed suit against the company in Kansas City. The first local lawyer chosen by Philip Morris as lead counsel for the defense was appointed a federal judge and had to withdraw. So their second choice, Dave Hardy, got the job. A native of rural Tipton, Missouri, Hardy was the epitome of a small-town American—wholesome, comfortable, confident, and driven. He worked such long hours that his nickname was “Fourteen-hour-a-day Dave.” He had become a successful trial lawyer, and by the time Philip Morris came along, his firm had a score of partners.

For the Ross case, Hardy's long hours of homework paid off. By the time he had finished his defense, it took the jury of twelve smokers only an hour to conclude that Ross had not proven his cancer came from Philip Morris cigarettes.

From that moment, Philip Morris basically adopted the firm of Shook, Hardy & Bacon. With this lucrative tobacco business, the firm blossomed from a modest practice into an international enterprise with 175 lawyers and scores of specialist researchers, biochemists, statisticians, and veterinarians—the full arsenal of the tobacco defender—making it the largest law firm in Kansas City. Soon, there would be offices in London and Zurich. The firm would successfully represent five of the Big Six tobacco companies—American, Brown & Williamson, R. J. Reynolds, Philip Morris, and Lorillard, plus the Tobacco Institute, the industry's PR arm in Washington, D.C.

The firm's offices reflect its success, with tasteful furnishings in mahogany and marble. Security is tight, especially on the twenty-fourth floor, where the tobacco lawyers meet. The elevator leads to a long corridor with locked offices and a reception area with no receptionist.

Dave Hardy, who was a Marlboro smoker, died of a heart attack in 1976 at the age of fifty-nine. A portrait of him hangs in the attorneys' lounge. Hardy's son, another David, now leads the tobacco team. About one hundred of the firm's lawyers work in the tobacco division and over the years they have always commanded the respect of their colleagues. There was a time when even nonsmoking Shook, Hardy partners carried cigarette packs in their shirt pockets or briefcases out of solidarity. Even now antismoking gestures are frowned on. The story is told that when a Shook, Hardy lawyer showed his colleagues a Doonesbury antismoking strip of Mr. Butts, his superiors “looked at him like he'd brought out a dead animal.” Moral pangs about the ethics of tobacco work, if indeed there are any, are not supposed to surface. “You don't buck tobacco,” said one former partner.

Dave Hardy's service to the industry spanned the First Wave of tobacco litigation—from the mid-fifties into the seventies. It was a period that included the time when BAT's British laboratories were busy experimenting with the effects of tobacco tar on mice and also researching the effects of nicotine. The results were openly discussed at BAT research conferences and copies of the scientific papers were sent to B&W's Louisville headquarters for distribution among its research staff. These internal “leaks” of potentially damaging research caused concern on both sides of the Atlantic.

Changes in the Federal Rules of Civil Procedure governing pretrial discovery had made it easier for plaintiffs' to get copies of such documents. The tobacco company lawyers worried that a smart plaintiffs' counsel might uncover embarrassing reports by deposing a company employee, or by imaginative “interrogatories”—written questions that require answers under oath. These procedures could put BAT itself at risk. Even though the British company was in London, it was not free of the American states' “long-arm” statutes and could be brought into litigation if a plaintiff's lawyer had enough resources to try. BAT had already been named in one tobacco case in Chicago, but the anti-tobacco lawyer had made a mistake in the filing, alleging that BAT manufactured, marketed, and sold B&W brand cigarettes in the state of Illinois, which BAT did not. If the plaintiff's lawyer had used some other legal language, such as “by and through its agent and wholly owned subsidiary, B&W,” then BAT might have remained a defendant in the case. In any event, B&W's legal department in Louisville had asked Dave Hardy, by now a veteran defender for the industry, to write a legal opinion on these tricky issues. Hardy was sent a number of BAT research reports to help him formulate the best approach. His reply not only advocated continuing the cover-up started by Dr. Little, but also suggested that research scientists who made “careless” comments about their work should be warned of the “consequences.”

In a seven-page letter, dated August 20, 1970, Hardy advised that statements made by some employees in scientific reports and at research conferences “constitute a real threat” to the continued success of the industry's defense of tobacco litigation. “The effect of testimony by employees or documentary evidence from the files of either BAT or B&W which seems to acknowledge or tacitly admit that cigarettes cause cancer or other disease would likely be fatal to the defense of either or both companies in a smoking and health case,” he wrote. Such an admission would give a plaintiff's case a “posture of strength and danger never before approached in cigarette litigation,” he said. “It could even be the basis for an assessment of punitive damages if it were deemed to indicate a reckless disregard for the health of the smoker. Certainly, such evidence would make B&W the most vulnerable cigarette manufacturer in the United States to smoking and health suits.”

Hardy was, in effect, impugning the integrity and company loyalty of the research scientists in BAT's labs in England who had become convinced that smoking did cause cancer and heart disease. He wrote, “We, of course, know that the position of BAT, as well as B&W, is that disease causation by smoking is still very much an open question. Cigarettes have not been proved to cause any human disease. Thus, any statement by responsible and informed employees subject to a contrary interpretation could only result from carelessness. Therefore, employees in both companies should be informed of the possible consequences of careless statements on this subject.”

Of course, Hardy must have known from reading the reports that for a decade at least BAT's scientists had believed smoking causes cancer. But he wanted them to keep what they knew strictly to themselves. “Careless statements,” in Hardy's view, included the mere mention of research into cancer or a “safer product,” because they implied cigarettes then on sale were unsafe. For example, he complained about the following phrases and sentences from the minutes of a research conference held in Kronberg, Germany, in 1969: “a mouse-skin safer cigarette is a worthwhile objective”; “there is a possibility that the experiments taking place at [the BAT research facility at Southampton, England] with the membrane of the chicken embryo might be showing genuine carcinogenic effects in days”; “the conclusion of the conference was that at the present time the industry had to recognize the possibility of distinct adverse health reactions to smoke aerosol: (a) lung cancer (b) emphysema and bronchitis.” Hardy also deleted any reference to the phrase “biologically active,” which was used to mean cancer-forming.

Reviewing another BAT conference, this one held in St. Ives, in England, Hardy objected to statements referring to “the search for a safe cigarette” and a “healthy cigarette” that were, in Hardy's words, “most damaging.” He wanted all such statements, opinions, and references deleted because they threatened his defense strategy in court. “Of course, we would make every effort to ‘explain' such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations that we would be forced to urge.”

To protect BAT and Brown & Williamson against such legal traps, Hardy even wanted to tear up the 1969 R&D agreement between BAT and B&W in which the two companies shared the costs of research being done in England by BAT. In the U.S. the tobacco companies had apparently been careful not to have any such formal agreements about potentially embarrassing research. In fact, there had been a “gentlemen's agreement” among the manufacturers to suppress independent research on the issue of smoking and health. This agreement was mentioned in a 1968 internal Philip Morris draft memo, which said, “We have reason to believe that in spite of the gentlemans [sic] agreement from the Tobacco Industry in previous years that at least some of the major companies have been increasing biological studies within their own facilities.” BAT was one such company and that posed a problem, according to Hardy. A “carefully framed” pretrial discovery motion “might, in fact, be able to force production of certain documents from B&W which are presently in the custody of BAT only.”

Hardy also advised B&W to protect itself from what he called “actual knowledge on the part of the defendant that smoking is generally dangerous to health, that certain ingredients are dangerous or should be removed, or that smoking causes a particular disease.” In other words, the industry could not defend itself against antitobacco research if its own scientists had some of the same views on their product. For example, the industry could not maintain its position that mouse-skin painting was not valid for humans when a company report from Germany stated, as it did, that mouse-skin painting was the “ultimate court of appeal on carcinogenic effects.”

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H
ARDY'S ADVICE
was not exclusive to B&W; he advised the industry as a whole and over the next two decades, company lawyers moved to monitor and censor internal scientific projects, eliminating those deemed unfavorable. The idea was to protect company files that could be used against the industry in court. Once they had chosen the approach suggested by Dave Hardy, there was no room for compromise. As insurance against sensitive research documents slipping through and then being uncovered by plaintiffs, Brown & Williamson attorneys took two basic precautions. They labeled sensitive documents “privileged” or “work product” so they could be kept secret.