Cornered (7 page)

When Dianne Castano asked him after the funeral to file a claim on her husband's behalf, he refused. In any event, Gauthier feared that Castano's smoking history would not stand up to the tobacco industry's standard defense that smokers choose to smoke, even though they know it could kill them. Intelligent people like Castano know the risks. Since 1966, when the government warning labels went on cigarette packs, juries had bought the “personal choice” argument. Frustrating though it was for Gauthier to lose his best friend, he thought it was just a waste of his time and money to pursue a claim. But he assured Dianne Castano that he would keep looking for a way. Almost a year would go by before Gauthier found it.

The night ABC aired the
Day One
program on “spiking” cigarettes with nicotine, Gauthier was at home in Metairie. From what little he knew of the tobacco plant and the manufacturing process, Gauthier was struck by the tobacco companies' response. They said they never added nicotine that wasn't in the leaf, but that still left open the possibility that they manipulated the levels of nicotine by varying the kinds of leaves in the tobacco “blend” to keep a smoker hooked. For years, the companies had openly blended cigarettes, and different brands had different levels of nicotine that were advertised on the pack in milligrams, alongside the level of so-called tar. The companies had long had the expertise to extract nicotine from tobacco; they could put it back in, or keep it out, whenever they chose. In its report, ABC had interviewed an industry official whose identity was not revealed and who appeared only in silhouette but who had said, “They put nicotine in the form of tobacco extract into a product to keep the consumer happy.” The official was said to have worked as a manager for R. J. Reynolds, the second-largest tobacco company and the maker of Camel cigarettes.

Gauthier saw a new way to sue the tobacco companies. Kessler's letter and the ABC program were an invitation to file a lawsuit based on nicotine addiction. If only part of what the program had alleged was true—that companies manipulate the nicotine content of cigarettes to keep smokers hooked—then how could the tobacco companies claim smokers choose to smoke? At least some, if not all, are addicted to nicotine. In Gauthier's experience, Peter Castano was one of them.

Over the next few days, Gauthier ran and reran the thirteen-minute ABC tape in his office. The more he saw, the more he was tempted. But if he brought a liability suit based on addiction, he would have to prove something that the tobacco companies had always denied, namely that nicotine was an addictive substance. And he would have to prove that they knew it. The question was, How much of their private research on nicotine had the tobacco companies managed to conceal over the years? One of the most recent of the tobacco cases suggested the companies still had a lot of dirty secrets to tell.

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A
T THE END
of the 1980s, the tobacco companies came as close as they had ever been to losing a lawsuit. A New Jersey woman named Rose Cipollone, who had had begun smoking at sixteen during the Depression, had developed a three-centimeter lesion at the rear of the upper lobe of her right lung by 1981. Operations and chemotherapy followed, but nothing could stop the onward march of cancer cells, which eventually invaded her liver and then her brain. In 1983, she sued the tobacco companies, seeking unspecified damages from three of them, Philip Morris, Lorillard, and Liggett & Myers, all makers of the brands she had smoked: Virginia Slims, True, and Chesterfield.

Her complaint was that all three companies had failed to warn her properly of the health risks of smoking. The companies' defense was, as usual, based on the idea that Rose, who was a regular reader of the newspapers and a viewer of television, would have known about the dangers of smoking for decades—at least since the 1950s. If smoking had caused her cancer, which the companies did not accept, then it was her fault for smoking. She died in 1984 before the case came to trial, but her husband, Antonio, carried on the suit.

Rose's lawyer, Marc Edell, had defended asbestos companies in their fight with plaintiffs' lawyers in the 1970s and 1980s. Now he saw an opportunity to make a name for himself as the one who ended the tobacco companies' winning streak. For almost a decade, he fought the companies on Rose's behalf. He went further than any lawyer before him in forcing the companies to delve into their archives to produce internal memos and research papers on smoking and health. In all, Edell made the tobacco industry spend an estimated $50 million in legal fees.

But in the end, he, too, was beaten. The jury agreed that Rose's cancer had been caused by smoking and that one company, Liggett & Myers, whose Chesterfields Rose had smoked more than any other, had failed to warn her of the harmful effects of tobacco prior to the 1966 government warning labels on cigarette packs. But the jury awarded Rose's estate no damages because they found the company only 20 percent responsible for her death and New Jersey law requires a finding of at least 50 percent responsibility. Philip Morris and Lorillard were let off because Rose had smoked their brands after 1966. The jury, however, took pity on Tony Cipollone, awarding him $400,000 as a sort of consolation prize for being a dutiful and concerned husband. It was the first time a jury had awarded any damages in a tobacco lawsuit, but it was an odd, unconventional gesture from the jury with no legal basis, and the award was overturned on appeal.

That was not the end of the case, however. Various court irregularities gave an opportunity to each side to appeal and the case went to the Supreme Court. The justices eventually agreed that Edell had been prevented from trying a big part of his case because the industry, post-1966, had concealed or misrepresented the truth on the smoking and health issue. The Court allowed a retrial on that issue, but by then Edell's law firm had had enough. They had been representing Rose on a contingency fee basis and they had spent nearly $3 million. They pulled out of the case, and the tobacco industry declared victory.

For Gauthier, the important lesson was in Edell's unfinished business. In the course of pretrial discovery—when each side can delve into the history and document archives of their opponent and question its research scientists, engineers, and managers—Edell had tried to force the companies to surrender 1,500 documents. They had refused on the grounds that these were communications between client and counsel, and therefore privileged. The judge in the case, H. Lee Sarokin, a liberal-minded jurist given to moral indignation about corporate wrongdoing, had ordered a private review by the court to see if the companies' claim of privilege was justified. In his ruling, Sarokin issued one of the sternest judgments ever made from the bench against the industry. It included the following two paragraphs:

All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity?

As [the facts of the case] disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.

To Gauthier, Sarokin's allusion to hidden documents was like a croupier spinning the wheel for the start of play. Forcing companies to reveal incriminating internal papers is a key element of the liability lawyer's art. Gauthier would later recall, “That comment alone made me take another look at the case.” And the handful of documents actually released during the trial bolstered Gauthier's theory that addiction—not failure to warn of the health dangers of smoking—was the new legal issue.

Those internal memos and research reports from the Cipollone trial records showed how tobacco industry scientists, contrary to company statements, believed that most people smoked to get a shot of nicotine, not for the pleasure of the act of smoking nor for the taste of the tobacco smoke, as the companies had asserted for so long. One of the more explicit memos, dated 1972, came from Philip Morris psychologist William Dunn. In it, he concluded, “The cigarette should be conceived not as a product, but as a package. Think of the cigarette pack as the storage container for a day's supply of nicotine. Think of the cigarette as a dispenser for a dose unit of nicotine.”

Given such memos, Gauthier decided to go ahead and put together a suit on behalf of Castano. But though it would carry his friend's name, it would be a massive class action on behalf of all nicotine-addicted smokers, potentially tens of millions of Americans. The case had an attractive simplicity about it: the injury was addiction and the cause was nicotine. Gauthier would ask for two kinds of damages. The first was the establishment of a medical monitoring fund—to pay for checkups of addicted smokers for lung and heart disease and help them to quit the habit. The second would be punitive damages. Gauthier had in mind asking the courts to force the companies to pay fines from the sale of cigarettes. With 45 million smokers, an estimated half or more able to qualify as addicted to nicotine, the total amount the industry would be asked to pay, Gauthier figured, would come out to hundreds of billions of dollars.

While the addiction theory seemed a viable means to legal action, Gauthier knew it was foolish to think of taking on the tobacco companies by himself. He had made a fortune, but it was still a small one by the standards of the tobacco companies. They could outspend and outlast him in any legal battle. He had to build up a team of plaintiffs' lawyers, the more the better. He had no idea how they would react to his plan, but when he started talking to them he found many were thinking of suing. Kessler's letter and the ABC program had demonstrated a possible weakness in the tobacco camp. Gauthier found himself listening to stories of a colleague's relative or close friend who suffered from illness or death because of tobacco.

Gauthier would always be the first to admit that the prime motive for the plaintiffs' bar to take on cases was money and the rich tobacco companies promised the greatest booty of all, but the tobacco case had another layer: revenge. These plaintiffs' lawyers were personally involved. John Coale's father was ill with emphysema; so was the father of Atlanta lawyer Ralph Knowles. Danny Becnel, of New Orleans, had lost his father to lung cancer. Both parents of the lawyer Leslie Bryan had suffered smoking-related heart attacks. Russ Herman's mother, a lifelong smoker, was staying alive by breathing from a portable oxygen tank. Motley's mother had died of emphysema. Gauthier was careful to keep emphasizing the risks, but some lawyers were so fired up they didn't want to hear him. Calvin Fayard, a member of the Castano committee from Baton Rouge, told Gauthier, “Don't tell me how we can lose, tell me how we can win.” It was during a dinner in New Orleans with Danny Becnel and Ralph Knowles that the three came up with the idea of each putting up $100,000. The collection box filled more quickly than Gauthier had imagined. It was “almost like spontaneous combustion,” said Richard Heimann, of San Francisco's Lieff, Cabraser & Heimann.

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I
N HIS RECRUITING
, Gauthier turned first to his Louisiana colleagues, many of them friends of Castano. But he knew he also needed some of the better-known members of the plaintiffs' bar, the celebrity lawyers. As always in liability cases, propaganda would be a key weapon. Gauthier's friend and grand old tort campaigner Melvin Belli, then eighty-seven years old, was an obvious choice. Belli was the living symbol of the flamboyant trial lawyer, with his yacht and his cowboy boots and his pen with gold ink and the sign outside his San Francisco office that proclaimed the title of his single-partner law firm as “Belli, Belli and Belli.” And he was no novice to tobacco litigation. He had brought his first tobacco case to trial in Louisiana in 1958 during the First Wave of cases. He lost. But he tried again in 1985. Again he lost. But over five decades Belli had left his mark on the profession. He had pioneered a powerful weapon in the liability lawyer's arsenal with the introduction of demonstrative evidence—the graphic and gory pictures of personal injuries—and these had doubtless influenced jurors. It was his prompt arrival at the sites of air crashes and hotel fires that had given rise to the universal nickname for his colleagues—ambulance chasers. “I'm not an ambulance chaser,” Belli once complained, “I always get there before the ambulance arrives.”

Among Gauthier's other important recruits was Elizabeth Cabraser of the San Francisco firm of Lieff, Cabraser & Heimann. The firm had started in 1972 with three attorneys; by the beginning of 1994, it had emerged as a national player in lucrative class-action cases. Robert Lieff, the managing partner, acquired his taste for big-case hunting when he worked with Belli in the 1960s handling securities class actions and commercial litigation. Cabraser had joined the firm in 1977 as a summer law clerk. She was of a different generation than Belli but had instantly won the admiration of her colleagues for her prodigious memory of case history and class-action procedures.

Despite her fragile appearance—she's so tiny she looks as though she might be blown over in a gust of wind—Cabraser was as robust and competitive as any of the trial lawyers. She had even adopted some of the trappings of her trade—including a purple Mercedes-Benz 300E whose license plates read
FRCP
23—the federal rules of procedure governing class actions. She was known for working through the night and sleeping on a couch in her office on the top floor of a thirty-story high-rise overlooking Alcatraz and the Bay. Robert Lieff, her admiring managing partner, installed a shower especially for Cabraser's nocturnal bouts.

Cabraser had also been on the short list for a judgeship on California's northern bench, and her colleagues thought she was more than qualified. She wasn't chosen—she thinks because of philosophical differences with Senator Dianne Feinstein, especially over the death penalty. Cabraser opposes it, Feinstein is for it. Cabraser has also said one reason she was turned down was because she is openly gay.