Cornered (39 page)

In March, three other Philip Morris researchers who had worked in the same Richmond laboratories as Tamol confessed publicly that they had been secretly cooperating with the FDA's inquiry into the tobacco industry. The FDA's David Kessler released their names and affidavits about their work on the role of nicotine in cigarettes. One of the researchers, Ian Uydess, said that nicotine levels were routinely targeted and adjusted by Philip Morris. Another, William Farone, had written a research paper entitled “The Manipulation and Control of Nicotine and Tar in the Design and Manufacture of Cigarettes.” Philip Morris had always insisted that it did not manipulate nicotine levels in cigarettes and protested that the FDA's actions were all part of a “public relations gambit” to manipulate the media and “cloud rather than clarify the facts.”

In the Heep household, the defections by the researchers caused quite a stir. According to Heep, Philip Morris knew Tamol had company files and the phone never stopped ringing as company lawyers demanded that Tamol either return or destroy all his documents—most of which were still stored in Heep's basement.

One day, two men came to the door and without identifying themselves demanded to see Tamol, who was not at home. Heep assumed they were from the company. “One of them tried to step right into my house, almost pushed past me,” Heep said later. When she told the men that Tamol was not in, they said they would wait for him. “No, you won't,” she said, “you'll leave and you'll leave right now.… You are standing on my porch with imported tiles from Padua, Italy. Get off them [and] don't ever come near my house again.”

When Tamol returned, she told him about the two men. They then had a shouting match about the documents that ended when she told him to leave, and he did. A few days later, Tamol phoned wanting to come back to collect the documents. Never, she told him. Their affair was over and he could never return.

Heep was now convinced that she was holding documents vital to the future of the tobacco industry. As she recalled, she expected “Philip Morris people to come crashing through the doors at any moment.” She decided to hand over the documents to the antitobacco forces, but she didn't know anyone on that side of the war.

Heep came from a famous ranching family in Texas and she did what any well-connected Texan would have done with a serious dilemma: she called the governor's office. They put her in touch with the office of the attorney general, Dan Morales, who had filed the Texas Medicaid recovery suit. But apparently Heep was not making herself clear. Morales's office put her through to the Texas public affairs office, where they suggested that if she needed information about cigarettes she should contact consumer affairs and get a pamphlet. Ms. Heep exploded. “I've been sleeping for the last two years with the man who developed these damned cigarettes,” she said. “Now either you got somebody there that cares, or you don't. I'm not going to sit on hold anymore. I've had it,” she said and hung up.

She knew from the newspapers and television that a Harvard law professor had been a consultant on the tobacco lawsuits. In fact, two Harvard professors had been advising the antitobacco forces. Laurence Tribe had been assisting Mississippi, Florida, and Texas, and Arthur Miller had been consulting with the Castano group. She called Professor Miller's office and was given the Castano number in New Orleans.

Delighted at the prospect of a document windfall resulting from a woman's scorn, Wendell Gauthier immediately dispatched a team of lawyers to Richmond. Within twenty-four hours, Tamol's documents and Ms. Heep were on their way to New Orleans. Heep stayed in a “safe house” while some Castano lawyers took her deposition. Meanwhile, other Castano lawyers found what they considered to be four sensational notes in the papers, all apparently written by Tamol. Each contained a reference to the amount of nicotine necessary to keep a smoker “hooked.” One was stamped “R. A. Tamol,” dated February 1, 1965, and read: “Determine minimum nicotine drip to keep normal smokers ‘hooked.'” The handwriting appeared similar to Tamol's script on his country-club receipts and checks.

After taking Ms. Heep's deposition, Gauthier arranged for her to be interviewed on television and released her deposition to the media. The newspapers loved the story, of course. Contacted by reporters, Tamol said he had never written the notes in question, telling
The New York Times,
“Philip Morris is not manipulating nicotine.” He said he had broken up with Ms. Heep because she was “basically unstable” and “a chronic liar.” Philip Morris called the release of the documents a “bizarre stunt” that was “part of an all too familiar pattern of documents being leaked to the media.” John Coale, the Castano lawyer in charge of publicity, countered that the documents were the “most devastating that have come to light.” And Gauthier said he “couldn't wait to get before a jury” with the notes. “Those rascals should be in jail,” he said.

Thus, Hatsy Heep and her spurned lover entered the annals of the Third Wave of tobacco litigation. Even though Tamol's documents yielded no more than a few pages of handwritten notes, it was a good media story; the last, as it turned out, of a series of great publicity stunts in the Castano group's highly successful propaganda war against the industry. Gauthier had masterminded an assault in the media that left the industry sputtering and defensive. As one Wall Street tobacco analyst, Roy Burry of Oppenheimer & Company, put it, Castano had created “90 percent of the noise factor surrounding the industry.”

One of Gauthier's cheekiest propaganda moves had been directed at Wall Street analysts, including Mr. Burry. The Castano group had issued subpoenas to Burry and the other four leading tobacco analysts, Gary Black of Sanford Bernstein, Marc Cohen of Goldman Sachs, Diana Temple of Salomon Brothers, and Rebecca Barfield of CS First Boston. Casting his document-discovery net as wide as possible, Gauthier had demanded all reports, memoranda, notes, messages, calendar and diary entries, videotapes, disks, and electronic mail that would explain the “formulation of your opinions” on the purchase of tobacco stocks. “We're pulling them in [because] we wonder if they have information on the issues of addiction, manipulation and nicotine and because they write a lot about this,” said John Coale. “We think analysts favor the tobacco companies and are consistently trumpeting the industry's position. We suspect that the companies have shared a lot of information with these analysts, and we want to know what it is.” The analysts were outraged, declaring that the sources they used were all in the public record.

Gary Black complained directly to Gauthier. Ever since the dinner at Antoine's, Black had kept in touch with the Castano suit through Gauthier's associate, lawyer Danny Becnel, and he considered himself to be on friendly terms with the group. “How could you do this to us?” Black protested. Gauthier said they wanted to find out if the institutional investors knew they were financing a product that killed more than 400,000 people a year and if the tobacco companies had told investors that nicotine was addictive.

“Gary, it's this simple,” said Gauthier, although Black doesn't remember this part of the conversation. “Suppose that I'm smuggling dope from Mexico and I call you and I say, ‘Gary, I need a million dollars and I'll return you two million and you don't have to know anything about my smuggling operation.' Do you think you could be criminally charged?”

“Oh, that's different,” said Black.

“Why?” asked Gauthier. “You know what the big difference is, Gary? The standard of proof is less in civil cases than it is in criminal cases. You're in more trouble than the example I just gave you.”

“But I thought we were friends,” Black said.

“It's got nothing to do with friendship, man,” Gauthier answered. “These motherfuckers killed my best friend.”

From Castano dinners at Antoine's and other famous New Orleans restaurants, “secret” meetings of the group's executive committee (to which at least one reporter was allowed, and of which TV cameras took before and after shots), to Gauthier's practical jokes and his highly printable bombast about tobacco, and, of course, to John Coale's release of the Merrell Williams documents to the media, the “Mother of All Lawsuits” had done more to focus public attention on the tobacco industry than anything else produced thus far by the Third Wave. Much to their own surprise, this group of legal warriors, who are constantly reviled by their colleagues for their boorish ways, unscrupulous courtroom tricks, and gigantic payoffs, suddenly found themselves being hailed as the “good guys,” an image even they had never expected.

Perhaps more important, Gauthier created a phenomenon that the tobacco companies had long dreaded: a coalition of the nation's leading liability lawyers who had set aside primitive antagonisms and had come together as a cohesive fighting force under the banner of a public health cause everyone could identify with, even if they couldn't actually support it. This was an alarming prospect for any industrial enterprise, but for the big tobacco companies it was a sign that they had finally met their match. Gauthier's group entered the fray well funded, ready for the long haul. Even though they all suspected that the Fifth Circuit Court of Appeals would overturn the lower court's ruling and decertify the Castano class action, a cadre of antitobacco lawyers had been formed, well trained if undisciplined, battle scarred and determined to fight on. Rebuffed by the courts in New Orleans, the Castano lawyers would fan out across the land and challenge the industry in different cities. As Elizabeth Cabraser, Castano's lead counsel, said, “They can stop us this year. They can stop us next year, but they can't stop us forever because we've now got the same perpetual existence that they have. There will always be a body of lawyers committed to this task.”

*   *   *

K
EEPING THIS FORCE TOGETHER
had been much more difficult than Gauthier's freewheeling style had suggested, however. A trademark of the plaintiffs' bar is independence. None of its members relishes being controlled, least of all by the collective will of a sixty-member committee. Behind the collegial niceties, old rivalries swirled. One member, in particular, could never fit. The capricious Ron Motley, the “Asbestos Avenger” from Charleston, started to nip at Gauthier's heels from the first. Motley was always complaining that the Castano group was not being run properly, not acting fast enough, and not fulfilling its potential in the pretrial investigations.

Some Castano lawyers became convinced that Motley was trying to organize a coup. He denied it of course, but he had his admirers; Richard Heimann of the San Francisco firm of Lieff, Cabraser was one, Don Barrett was another. So was Professor Daynard of Northeastern University. When Gauthier was not around, Motley quickly took over. “It didn't matter what it was; he just wanted to run the show,” said a Castano lawyer. “My impression was that if he couldn't have Castano he was hell-bent on taking it out of the limelight completely.”

Gauthier and Motley had clashed before, in Puerto Rico after the fire at the DuPont Plaza hotel. The smoke was still billowing out of the hotel when Gauthier sent John Coale to collect clients. Coale had done so well that Motley had been excluded and he went back to Charleston. “We had some run-ins with him,” recalled Gauthier, who was quick to point out the irony in Motley's failure. “He came home and got into asbestos claims and made a fortune. We struggled on in Puerto Rico and we won but we made little money.”

In Castano, Gauthier would shrug off the challenge people said Motley was making. “I heard things about Ron, but every time I asked him about them he denied it. It was my position that if anyone really worked themselves up to the point they wanted to take over, hell, I would just have become the number two, three, or five. That would have been great. To me it's about winning and if someone could carry the torch better than I to get us across the goal posts, I would defer to him in a New York second.”

These two giants of the plaintiffs' bar, with their strikingly different personalities and methods, seemed bound for a confrontation. Gauthier liked to organize his lawyers, lead them into the courtroom, make the opening and closing arguments, but otherwise let them run the show. He always had several cases running at once. As he launched the unwieldy Castano group, Gauthier was involved in several other tort cases and was also leading a consortium of local investors in New Orleans's first land casino, a bold rival project to riverboat gambling. Throughout the turmoil in his office, however, he was almost always calm. Few things seemed to bother him. “He's the general,” said a member of the Castano committee. “People take their orders and move forward.”

As Gauthier invited respect and loyalty, Motley brought out uncertainty. “Motley is his own man,” the same Castano lawyer continued. “We would vote in the committee and, if Motley lost, he would do whatever he wanted to do anyway.”

Motley is known as a “showboater”; part Southern populist, part preacher, and part dictator. “It's either his way or no way,” said another lawyer who knows Motley well. They used to say he ran “the Republic of Motley,” right there in South Carolina. “The
Independent
Republic of Motley, please,” added one of his lawyers, Andy Berly.

To say that Motley's staff worship him may be going too far, but he is the centerpiece of their life. He makes it so. Like any accomplished actor, he demands an audience, full-time. “In his own office, Ron is God,” said a New Orleans lawyer. “They adore him. He built a kingdom and surrounded himself with courtiers who think he's the most brilliant man in the country. And as a team they think they're the best.” And, in some respects, they are.

Motley is known for his elaborate and highly successful courtroom performances and his quick grasp of the essential evidence that will turn a jury. In these respects he has few rivals, his colleagues say. Motley's personal view of the plaintiffs' bar is that it's filled with junkyard dogs, always ready for a scrap. Once he picks up the scent of corporate wrongdoing—a company hiding evidence, an expert witness not declaring his interests, or a phony industry-funded front organization—he springs into action and relentlessly tracks down his quarry. He unearths documents, takes depositions, and unleashes his own shock troops on libraries, archives, company records, and expert witnesses. The tobacco companies had never encountered such zeal in their forty years of corporate litigation.