Cornered (6 page)

The concept of “indemnity” called for shifting the loss incurred by the state onto the companies, again because the state was an innocent third party and had no choice but to pay the medical bills. Under “public nuisance,” courts have allowed governments to take action to recover expenditures on such things as cleaning up water pollution and fighting fires. Moore would argue that the state acted to abate a public nuisance created by the tobacco industry by providing health care to keep Mississippians from getting sicker, or dying sooner, from smoking-related illnesses.

Moore also wanted to stop the industry from targeting children with advertising and promotions, such as T-shirts and other trinkets. As Scruggs put it, “A major reason for the equity court's existence is the protection of children; they can provide such relief.”

By confining Mississippi's suit to these claims, Moore aimed to have the case heard before a single judge in the state's Chancery Court. After Barrett's experience with the Horton trial, he thought they stood a better chance with a judge than a jury. Also, a recent study had challenged the widely held assumption that juries were more sympathetic than judges in cases involving personal injury. In one of the biggest tort areas—defective products—plaintiffs who opted for a jury trial won only 28 percent of their cases, whereas those who went before a judge won 48 percent.

The tobacco companies would object and try to move the case to federal court and a jury trial. There would be big battles over discovery and prolonged wrangles over depositions, but Moore and his team were ready. Initial estimates suggested the case would cost about $5 million to bring to court, and Moore deputized Scruggs, as he had done in the asbestos cases. Together they assembled a team that purposely included both Republican and Democratic law firms; Moore was a Democrat and Scruggs a Republican and the two men did not want this to be a partisan attack. Scruggs, Barrett, and the other firms also took the case without a contingency fee contract with the state. This was to fend off attacks from the state legislators that the plaintiffs' firms were getting too much money. If they won, the plan was that Moore would apply to the court for attorney's fees—but they were to be paid by the defendants, not by the state.

*   *   *

A
T THE BEGINNING
of 1994, Moore was starting to prepare his charges against a dozen of the major tobacco companies and a handful of associated organizations (such as the industry's public relations concerns) when the attention of all plaintiffs' lawyers was suddenly focused on a surprise announcement from the Food and Drug Administration in Washington.

On February 25, FDA Commissioner David Kessler charged there was “mounting evidence” that the tobacco companies controled the levels of nicotine in cigarettes in order to satisfy the smoker's addiction. This was an astonishing departure from previous FDA policy toward the tobacco industry. For decades, the nation's regulator of consumer products had never pressed to oversee the production of cigarettes, taking the position that tobacco was neither a food, nor a drug. The anti-tobacco forces had been vainly pushing the FDA for decades to impose stricter controls on tobacco and, since 1988, a petition had been sitting on the commissioner's desk from the Coalition on Smoking or Health, which included the American Cancer Society and the American Heart Association and American Lung Association, asking the FDA to regulate cigarettes as a drug.

Now, in a letter to the Coalition's chairman, Scott Ballin, Kessler said evidence suggested that the manufacturers intended their products to contain enough nicotine to satisfy “an addiction,” and therefore should be regulated as a drug. “In fact, it is our understanding that manufacturers commonly add nicotine to cigarettes to deliver specific amounts of nicotine.” If the agency were able to prove these facts in court, Kessler went on, “it would have the legal basis on which to regulate these products.”

Kessler gave no reason for the sudden change in FDA policy, but it was partly an outgrowth of a secret investigation made by the agency and partly the result of an inquiry by the staff of an ABC muckraking news program called
Day One.
Two years earlier, Kessler had directed his staff to take the agency's first serious look at tobacco, and by coincidence ABC's inquiry had been in parallel. Kessler scooped the TV network by three days.

On the night of February 28, ABC aired the
Day One
program. This program had been fifteen months in the making. It originated from a conversation between Clifford Douglas, a lawyer and antitobacco activist, and Walt Bogdanich, an ABC television producer who had won a Pulitzer prize while on
The Wall Street Journal.
Bogdanich was intrigued by the idea that cigarette companies could artificially control the level of nicotine in cigarettes, not simply by blending different varieties of tobacco, but also, possibly, by adding nicotine from other sources. In the program, there was no equivocation about “mounting evidence,” no legalese such as “our understanding is…” The report directly accused the tobacco industry of “artificially spiking” cigarettes with nicotine to keep smokers hooked. Under the alluring title, “Smokescreen,” ABC charged that the tobacco companies used a secret process that included adding a “nicotine rich” tobacco extract from outside suppliers. The revelations, the program declared immodestly, “could change the tobacco industry forever.”

The industry immediately denied the allegations, saying it never added any nicotine that wasn't in the original leaf. Philip Morris, the largest of the U.S. companies, went on to sue ABC for $10 billion, the biggest libel claim on record. Their complaint focused on the word “spike.” ABC would eventually settle the case and apologize for mistakenly reporting that companies “add significant amounts of nicotine from outside sources.” The case would end up costing the TV company $15 million in the out-of-court settlement, but the publicity given to the case added to the changing public perception of what exactly does go into a cigarette, and it raised the question of whether the companies could control nicotine levels to keep smokers hooked. The program would also push Wendell Gauthier into action in New Orleans and trigger the world's largest class-action suit. Don Barrett would get a call from Gauthier, whom he had never met, asking if he would like to join the Castano group. For a while, the Mississippi suit was to be overshadowed.

2

A DEATH IN THE FAMILY

Cry “Havoc!” and let slip the dogs of war.

—
Shakespeare,
Julius Caesar

 

T
HE
M
ETAIRIE
C
EMETERY
is a splendid New Orleans landmark. Built six years after the Civil War on the former site of a race track, it has four thousand vaults and tombs, all above ground to protect them from the times when the flooding Mississippi rolls over its levees. Greek Revival marble crypts stand among lavish and ornate temples. Rotundas compete with soaring Egyptian obelisks. Metairie is the most elaborate burial ground in a city renowned for overdoing every aspect of life—and death.

Josie Arlington, who ran a brothel on Basin Street, was buried in a grand mausoleum of her own design made of pink granite imported all the way from distant Maine. Today, not even madams from the French Quarter can afford such elaborate memorials. The city's recently dead rest mostly beneath bronze plaques like the ones in Plot No. 149. There, fixed in the coarse Southern grass beside a man-made lagoon, a plaque and a small metal vase of dried flowers mark the final resting place of Peter Castano, a local lawyer who died in 1993 at the age of forty-seven. Castano's death certificate says he died from lung cancer due to smoking. He was a heavy smoker who started in his teens and even though constantly counseled by doctors and friends to give up the habit, he simply could not do it. His wife, Dianne, had agreed to marry him on condition that he stop smoking and, though he promised that he would and even swore on the Bible several times that he had done so, the truth, which was common knowledge to his wife and to his friends, was that he never gave it up. The best he could do for Dianne was not to smoke in front of her. She knew, of course. The evidence was the acrid smell of nicotine on his clothes. But Dianne was so fond of him that as the years went by she reprimanded him less and less. They had two children and lived in the pleasant middle-class section of Old Metairie at the back of the cemetery, on a street lined with oak trees laden with Spanish moss. He was a good provider who made a reasonable living from his criminal-law practice, but he had never expected to make legal history.

In the normal course of events, Castano's untimely death would have been the tragic story of a smoker who had died prematurely from his daily pleasure. He would have become a mere government statistic, one of 425,000 smoking-related deaths recorded annually by public health officials at the Centers for Disease Control in Atlanta and at the National Center for Health Statistics in Maryland.

Like many tobacco widows, his wife, Dianne, was angry and wanted to sue the tobacco companies, even though she had been warned against such action by Peter's lawyer friends. The tobacco companies, they told her, were too rich and powerful and had never lost a lawsuit. They were well known for bullying their opponents into submission with endless pretrial motions, armies of highly paid lawyers, and limitless funds. Don't sue, they advised. You can't win. For Castano's widow it would be different.

Castano's closest companion since law school at Loyola had been Wendell Gauthier. A venturer, Gauthier had shunned the orthodox legal career of his friend in favor of the riskier plaintiffs' bar, with its potential for rapid fame and riches. For several years Gauthier had represented the victims of man-made disasters—hotel fires, airplane crashes, railroad accidents—and by the time of his friend's death, he had amassed a small fortune.

The son of a Cajun construction foreman, Gauthier grew up in Iota, which is literally a dot on the map of the rice-growing region of southern Louisiana. His father served as a city councilman and his mother was a schoolteacher, but Gauthier was the first member of his family to attend college. To do so, he had to find his own funds. He sold cow manure and scrap iron and then taught high school and gave private driving lessons. Embarked on a law career, Gauthier used a formidable combination of diplomacy, cunning, and showmanship to become one of the leading members of the plaintiffs' bar. His first break, a $1 million verdict against Louisiana Gas, came from representing a family whose home exploded due to faulty gas lines. Six more exploding homes gave Gauthier six more cases and eventually put him on a panel of experts to study the problem. They solved it. “They also put me out of the gas pipe business, but I was glad to be a part of the panel,” said Gauthier.

He went through what he called his “ego trip” of owning a Rolls-Royce and a Jaguar and developed a liking for sharply tailored double-breasted suits. Unlike his flashier colleagues, however, he had no yacht, no private plane, no vacation home in Florida. Instead, he lived in a large but modestly decorated house in Old Metairie, just around the corner from his friend Castano. And rather than have an office like other successful New Orleans lawyers in one of the skyscrapers erected by the oil companies downtown, Gauthier ran his law practice from a utilitarian two-story building in Metairie's sprawling business district. His one indulgence was a small back room attached to his main office where he would play cards with friends on Saturday afternoons.

His business was mostly local, or mostly Louisiana. He became a confidant of the state's governor, Edwin Edwards, part owner of the New Orleans Saints football team, and the head of a group of investors building a casino on the banks of the Mississippi. Although friendly and full of mischief, Gauthier was always working on a new case and rarely seen in public except when negotiating his Rolls-Royce around the narrow streets of the French Quarter where his wife, Anne, had an antique shop. Close friends shortened his surname and called him “the Goat.”

In court, Gauthier was known for unconventional tactics that would keep opponents off balance. He loved to play practical jokes, like the baked Alaska he sent to the tobacco lawyers. One day, after the Castano case was launched, an ABC News television crew came to interview him. He was late. The crew was waiting with John “Bhopal” Coale, who was acting as the Castano suit's publicity director. Gauthier called from an outside pay phone pretending to be the sheriff. He told the crew there'd been a bank robbery and the robber had entered the office building. “Stay on the floor by a window, and put something over your face. We may have to use gas,” Gauthier told the crew. They believed him—until he called back to say the robber was on his way to their floor and Coale recognized his voice. “He had us all on the floor with jackets over our faces,” said Coale.

“You tend to discount him as just a clown, it throws you off your game,” said one past opponent. Another said, “What it takes to win within the system, he will do. Whether you call that fair, or unfair, I won't characterize.” Among Gauthier's booty could be counted millions of dollars litigated from a fatal explosion at a grain elevator, an airplane crash, the 1980 MGM Grand Hotel fire that killed eighty-five people in Las Vegas (settled for $208 million), and the Dupont Plaza fire in San Juan, Puerto Rico ($230 million). In a class action involving 200,000 women who had received breast implants, Gauthier was among seventeen liability lawyers who would be awarded a settlement of $4.2 billion, the largest single civil damages award in history.

Gauthier had never smoked and had been impressed as a youth by the work of Dr. Alton Ochsner, the New Orleans surgeon who was an early proponent of the idea that smoking was linked to lung cancer. Gauthier had pleaded with his own children not to take up the habit. That was one case he lost. He had often been tempted, in the years before Castano's death, to enter the minefield of tobacco litigation, but rich and adventurous as he was, the odds of a courtroom victory against the tobacco industry were too great, even for him.