Cornered (43 page)

But the two cases were strikingly different. Mrs. Rogers had claimed the companies had failed to warn of the health risks and addictive qualities of cigarettes. She sought $2 million in compensatory damages and an unspecified amount in punitive damages. There had been two Rogers trials. The first trial, in 1995, had ended in a hung jury.

Importantly, in the second trial, the judge limited the evidence to what had been admitted at the first; none of the new documents available in the Third Wave could be used. Indiana law was also less favorable to the consumer than Florida law. In Indiana, juries cannot rule for the plaintiff if they think the plaintiff bears more than 50 percent of the blame. Florida, as well as most other states, allows the victims damages even if they were 99 percent responsible for their own injuries. The jurors' comments after the trial suggested that Rogers would have won had it not been for the Indiana rule.

Even so, Chuck Wall, Philip Morris's senior vice president, claimed the verdict was the company's “most important victory to date dealing with the purported ‘addictive' qualities of cigarettes.” He added, “This unanimous verdict sends a clear signal that there is no legal groundswell in the American court system to reverse forty years of precedents that people are responsible for their own actions when it comes to tobacco use.” RJR said the Rogers case showed that smokers could quit, if they wanted to. In its statement, Brown & Williamson declared, “The tide has not turned against the tobacco companies and common sense still prevails when it comes to these cases.”

But evidence to the contrary was growing, and the skill and expertise of the antitobacco lawyers were expanding. In their statements, the tobacco companies had conveniently negelected to mention the Horowitz case in California. A year earlier, in August 1995, Milton Horowitz, a seventy-two-year-old university professor, clinical psychologist, and former smoker, had won $2 million in a California state court for his claim that his mesothelioma (a fatal form of lung cancer caused by crocidolite, or “blue” asbestos) had been the result of crocidolite in the Micronite filters of the Kent cigarettes he used to smoke. Lorillard, the makers of Kent, were held liable for $1.21 million and Hollingsworth & Vose, the makers of the filter, for the rest.

Woody Wilner was also the latest in a line of asbestos lawyers to join forces against tobacco. There was now a cadre of plaintiffs' lawyers across the nation armed with years of experience in lung medicine. They were well funded and knowledgeable. Among them were Dick Scruggs, Ron Motley, Walter Umphrey, John O'Quinn, and Madelyn Chaber (the plaintiff's lawyer in the Horowitz case).

If the juries hadn't changed, the caliber of the lawyers confronting tobacco certainly had; in the Carter case, Wilner had demonstrated that his courtroom style linked with his expert knowledge could give Big Tobacco a lot of trouble. He was able to talk to the jury in plain language about the often complicated science of the cigarette, tobacco smoke, and lung disease. Diana Temple, a stock analyst who had been following the tobacco industry for twenty years at Salomon Brothers, was at home ill during the trial and watched it on Court TV. She had thought the case would be another easy victory for the tobacco companies. But watching Wilner's irreverent style, she acknowledged, “I said to myself, ‘My God, he makes the evidence more graphic. He could win eventually.'”

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W
ILNER HAD TWO HUNDRED CASES
to follow and if he had his way with the court, they would surface every other month, or so. The industry obviously had to be concerned about him, but there was not much they could do to stop the relentless march of Wilner's clients to the courthouse, and with them the possibility of more victories for the anti-tobacco forces. A large reason for Wilner's success is Wilner. He's a heavyset man with a high, domed forehead and receding bushy brown hair that hugs his ears. In the canine analogy favored by the plaintiffs' bar, Woody Wilner would be a St. Bernard; he appears solid and dependable. He also may be the only trial attorney who has an ounce of friendly humility, at least in public, and his outward appearance is anything but flashy. His partners joke about his suits, which they claim are off the peg and never cost more than $150 (he says they do cost more); his ties have a cheap, garish glare and they invariably clash with his socks. When
Esquire
magazine caught up with Wilner for a profile in the fall of '97, the joke was—his joke, actually—that in exchange for his time they had advised him where to buy clothes. The truth of the matter is that he has no interest in such things, which is certainly rare for his profession.

Until recently, he drove a battered '88 Ford van, but upgraded it to a newer model after his staff refused to ride with him anymore because the car had become so unreliable. His hobbies include in-line skating, rowing, and riding his pink bicycle. He is a licensed pilot, as was his mother back in the 1930s, but he does not own a plane, at least not yet. His mother lives down the street from him and at eighty-eight she sometimes flies with him. He is forty-eight, has never been in debt, even for a home mortgage, and perhaps because of it he radiates the confidence of the middle class, snug in an untouchable suburbia.

All this could suggest to someone who has not met him that Wilner is parochial; no match for the high-powered legal minds and maneuverings of the white-shoe law firms working for the tobacco companies. That image is not quite right.

Woody Wilner was born in Miami and went to Yale, where he received a degree in physics. He then worked for a year as a software programmer before deciding on law school at the University of Florida. When a reporter for
Barron's
asked why he didn't go to a better law school, Wilner replied, “My father had died by then. My mother didn't have a lot of money. It was cheap. And I guess it was also a combination of arrogance and naïveté. I figured if I became a lawyer, I'd be a very good lawyer—and it wouldn't matter where I went to law school.” From his first, tedious paper-pushing job in a big Miami law firm, Wilner was lured to Jacksonville by an older trial lawyer named Walter “Bud” Robison, who had his own firm and one big case—representing an asbestos company.

Robison died shortly after Wilner arrived and the young lawyer took over the asbestos file. To make sure he was up to date on the medical research into lung diseases, Wilner designed a computer program that contained all relevant scientific papers back to the turn of the century. When he started with tobacco, he did the same thing with nicotine and the carcinogens found in tobacco smoke.

Wilner may be the only trial lawyer involved in the tobacco cases who can say polycyclic aromatic hydrocarbons or N-nitrosonornicotine (a carcinogen found in smokeless tobacco) without a stumble. Even though he had yet to try a case, he was soon in demand at trial lawyers' conferences, giving his version of how to conduct an individual smoking case against Big Tobacco. His method is to divide the evidence into palatable chunks, often opening like a college professor with the lines: “We're going to spend a few minutes in the classroom looking at charts and learning the meaning of some strange terms, and then we're going to have some fun.”

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A
FTER THE OPENING REMARK
, Wilner invariably continues his case with a grim-looking graph entitled “Cancer Death Rates: Males 1930–1992.” It plots rates of death per 100,000 people. Colon, prostate, pancreas, esophagus, bladder, and liver cancers had remained roughly the same, as had leukemia, which was somewhat lower than stomach cancers, which had fallen gradually from 40 per 100,000 to under 10. Lung cancers, by contrast, had shot up in a 45 degree line from under 10 to more than 70. “It's a serious matter,” says Wilner. “It's not trivial to say that people died to make this chart the way it is. It's catastrophic and it belongs in your bedroom and your parlor. Meditate over it every day; it's the only thing that looks like this in modern medicine. It's the most extreme example of an epidemic unchecked, and further proof that that [industry's] idea that we live in a cancer soup beneath a cancer atmosphere and we eat cancer food is probably wrong. All other cancers maintain their balance, or are dropping, except lung cancer, which has gone out of control—for one reason.”

Then the jurors see the document Wilner declares is the one that launched the conspiracy: “A Frank Statement to Smokers,” the industry's famous 1954 promise—made after the crisis meeting of the tobacco chiefs at Manhattan's Plaza Hotel in December 1953—to find the truth about smoking and health and to always keep the health of the public in mind. But Wilner had a new angle. He had found a first draft of that report, which once included the sentence, “We will never produce and market a product shown to be the cause of any serious human ailment.”
That
promise was left out of the final document—more evidence, says Wilner, of the industry's intention never to be concerned at any meaningful level with the public health.

To counter Wilner's focus during his trials on this pivotal period in tobacco history, when the industry could have taken a different course on so many key questions relating to smoking and health, Brown & Williamson produced what they hoped would be their secret weapon—a witness who would say there was no conspiracy and no deceit at the 1953 meeting. To his surprise, Wilner was put on notice by B&W to attend a deposition of a Dr. Irwin Tucker in the company's hometown of Louisville. In all his reading of tobacco industry history, Wilner had never heard of Dr. Tucker, who was eighty-two years old and, as it turned out, the last surviving senior member of the tobacco chiefs' 1953 meeting. At the time of the meeting, Dr. Tucker had just been appointed director of scientific research and made a member of the board.

Wilner objected to having to attend the deposition; he regarded it as a waste of time and money, as he complained to a local judge in Jacksonville. The judge said he had to go, but the company agreed that he could ask some questions of Dr. Tucker before the formal deposition. B&W were to wish they had never found Dr. Tucker.

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A
LTHOUGH THE DEPOSITION
was organized by Brown & Williamson, attorneys for the other tobacco companies were in attendance—Philip Morris was represented by Shook, Hardy & Bacon, and R. J. Reynolds by Womble, Carlyle, Sandridge & Rice of their hometown, Winston-Salem.

First, Wilner established that Tucker's job as the company's director of research was to keep abreast of the scientific literature on cigarettes. He asked what kind of staff Dr. Tucker employed to help him evaluate the epidemiological evidence which was emerging at that time on smoking and cancer. Dr. Tucker, who was a chemist, replied that he had no medical doctor on his staff, no epidemiologist, and no statistician.

Q: So when papers on epidemiology and statistics were brought to your attention, what did you do?

A: Did the best I could.

Wilner asked if Tucker consulted the medical literature to establish whether B&W cigarettes were safe to smoke. Dr. Tucker replied, “Oh, seventy million people were using them.”

Q: And how many were getting sick and dying?

A: A small fraction.

Q: Well, how many, sir?

A: I don't know specifically how many.

Q: No. All right, sir. How many people out of the seventy million would need to die before you would conclude that the product wasn't safe?

A: I would say better than 50 percent.

(Under cross-examination, Tucker later backed away, saying, “I think it would be very much less than 50 percent.” But Wilner had already scored a bull's-eye.)

Asked what test B&W did to verify that its products were safe, Tucker said he consulted the historical records.

Q: Well, let's be a little more specific if we can. Do you—did you test, yourself, to determine whether the products were safe?

A: No, other than smoke them myself.

Q: So the scientific method that you were using was what? Would you describe for me the experiment?

A: We had a taste laboratory … in which people were put in a booth and given various samples to compare.

Q: So how would you determine whether that product was safe?

A: Well, if they were unsafe there might have been a reaction.

Apart from that, Tucker said, the company relied on consumers writing in to give their opinion of the cigarettes. There were no other tests.

The December crisis meeting had been called to consider the shocking results of Ernst Wynder's 1953 experiment that showed cigarette-smoke condensate caused tumors on the backs of mice. Dr. Tucker told Wilner that he had no scientific material that completely refuted the health charges being made—other than statistics showing the great many people who were long-term smokers who did not develop lung cancer.

Q: And did you regard that as proof that cigarettes did not cause lung cancer?

A: Yes.

The company made no effort, according to Tucker, to consult with medical doctors “as to whether that was a proper and valid scientific inference.”

Asked whether he thought cigarettes caused cancer, Dr. Tucker said no. Asked what the causes of human lung cancer are, Dr. Tucker said, “I'd say the inhalation of very particular substances.”

Q: Like what?

A: Like tar.

Q: Tar? What kind of tar?

A: From a bucket of boiling tar.

Q: Boiling tar?

A: Yeah. Being [the] kind that would be used on a roof.

Q: Okay. What do you base that on?

A: I believe there are incidences where industrial workers in the vicinity of asphalt and something like that have shown up with cancer.

At this point, Bill Hendricks, B&W's attorney from the Atlanta firm of King & Spalding, objected to what he called Wilner's “hectoring line of questions, where a question is asked, an answer is given, and then the answer is repeated back in an incredulous tone of voice.” Hendricks said, “I think this has a harrassing effect on the client and should be discontinued, and I would move for the entire line of these questions and incredulous restatements of answers to be stricken.”