University of Minnesota

“It Isn’t Always Fun.” – The States’ Attorneys General Tobacco Industry Trials

Following “retirement” I was pretty much able to pick and choose interesting issues to join, such as the nation-wide tobacco trials, a Minnesota White Paper, and international junkets and review boards, which I judged to have moment in public health. Here  I recount only a couple of these adventures.

The first action took place in Mississippi. Shades of Grisham’s novel, Runaway Jury!

The States Attorneys-General cases against the tobacco industry came into the calm of my semi-retirement in fall of 1996, with a letter and then a phone call from Richard Scruggs of the Pascagoula, Mississippi law firm already well-known for settling asbestos cases for plaintiffs. His group is highly regarded in public policy circles for its original, carefully prepared, and courageous leadership. It developed both the evidence and the strategy for a litigation movement that swept the country in the 1990s and forced the tobacco industry to participate in states’ costs for smoking-related illness and anti-tobacco education. The long-term object is to place controls on nicotine content and on advertising and to reduce the social burden of tobacco smoking.  [Since the time of my involvement, the Scruggs firm and the events leading up to the tobacco trials have been dramatized in an award-winning film, The Insider, starring Russell Crowe as the tobacco-industry whistle blower. I felt I was there, if only  in a small corner.]

The innovative legal approach of Scruggs and Co. came as a rebuttal to tobacco victories in dozens of cases brought by individual smokers. Over many decades, the industry and its skilled legal counsel never lost a case, it is said, nor, they were happy to claim, paid a penny damages to individual smokers or their families. Their argument, that people have always known smoking was a danger, placed full responsibility on smokers. Because tobacco culture, production, and marketing are legitimate, legal, and historical pursuits in this free society, the argument held, cause and effect had to be established for each individual victim.

Scruggs’s strategy focused, in contrast, on the smoking environment, on industry’s early knowledge of and deception about the addictive properties of nicotine, and on its targeting of minors and youth through advertising. The new strategy simply assumed the causal role of tobacco in many diseases costly to the state. The strategy worked, and it works still in many class actions and individual suits.

Scruggs worked closely on the legal strategy with Mike Moore, the young Attorney General of Mississippi, diverting great effort and resources of his law firm to preparation of all the states’ cases, starting with Mississippi. He enlisted outstanding health advisors, including David Burns of California, and got broad support nationally of voluntary and government agencies, including the American Heart and American Lung Associations, the American Cancer Society, the U.S. Public Health Service, FDA Commissioner David Kessler, and President Clinton and his administration.

Epidemiological studies, as well as clinical and laboratory research, provide the body of evidence that incriminates tobacco as a causal factor in many causes of death. Epidemiological, statistical, and public health expertise was centrally involved in computing the excess population mortality attributable to smoking.  Scruggs’s firm and collaborators, particularly the Ness-Motley firm of Charleston, South Carolina, and independently, the Cirisi firm of Minneapolis, became experienced and effective experts in this new field. Other states’ AGs were equally pioneering and persistent, particularly Skip Humphrey in Minnesota, in whose case I was not involved. 

The Trials Approach

As the trial dates for Mississippi and Florida neared, my schedule of participation in reports, reviews, depositions, and trial rehearsals was frequently altered at the last minute. I was not privy to the complex war room where the many far-flung legal activities were planned and coordinated. Eventually, I was deposed for the Mississippi case in late fall, 1996, in the office of a Minnesota law firm, with Charles Mikhail from the Scruggs firm and Alexandra Wagner from Ness-Motley as my counsel, whose main function was to defend my rights as an expert. I prepared by reviewing the Surgeon General’s reports on smoking, some of our own Minnesota data, and materials provided me on the long history of the tobacco industry’s evidence about their product and efforts to counter medical evidence. [An early medical director of the Tobacco Research Council is reported to have said that their efforts were designed “to create as much confusion and controversy as possible” on the question of tobacco and health. In this they were successful for decades.]

I was deposed by a legal representative of Philip Morris who acted as agent for all the companies being sued. No lawyer, or academician for that matter, have I found better prepared on any subject than the gentle Virginia advocate who deposed me. He was a scholar and gentleman. We treated each other with respect, as equals, sharing wit and wisdom comfortably and pleasantly. He was prepared not only in the field generally but in specifics, including, if you will, everything I had ever written on relationships of cigarette smoking to lung and cardiovascular physiology and cardiac risk, dating back to my first-ever published paper in 1957, “Lung Function in Smokers and Non-smokers.”

This sort of scholarship, with cozy conversation and subtle flattery, contrasted to the threats and manipulation I had known in cross-examination from other representatives of adversarial justice, surely lowered my guard. If there were traps to  fall into, I probably fell into all of them during these friendly and open communications. I suspect that a cross examiner might, in trial, bore in devastatingly on my testimony, using to advantage these facile revelations of my character and opinion. In the end, few corrections were required in the court clerk’s record of my Mississippi case deposition. And we never went to trial.

From time to time one heard about intense behind-the-scenes negotiations and even some dirty works in the Mississippi case. Though they were not as violent as Grisham imagined in his dramatic portrayal, one could read between the lines. For example, the Republican governor of Mississippi challenged the actions of his own Attorney General while  tobacco industry support was openly thrown to a challenger for the AG position in the upcoming election. Then there were private jet flights to D.C., when Scruggs met with Commissioner Kessler and the President. Continuing delays arose in the Mississippi trial plans, which now perilously approached the dates set for the second trial to start in Florida.

John Grisham’s Runaway Jury is a brilliantly researched study of the mean motives and dastardly doings of tobacco executives and their counsel, and, to be fair, of militant anti-tobacco activists who matched the “tobacconists” in cunning and deviousness, all set on the Gulf Coast of Mississippi. [Life was precariously close to imitating art.]  On reading the novel, I marveled at how well I had been treated, comparatively, by the tobacco lawyers. As far as I could determine, no skullduggery was used against me or my institution because of my status as an opposing expert. But throughout I kept my eyes open and fingers crossed.

Abruptly one day, the Mississippi case, so diligently and fully prepared, so soon slated for hearing before a supportive civil judge rather than before a jury, and so pioneering of a new era in tobacco litigation, was settled out of court — for 3 billion dollars! In a nonce it was all over. This first case was meant to be the harbinger of a national settlement for which Scruggs and Moore, Ness, Motley and Co., and Kessler, Clinton and Co., had been agitating behind the scenes for many months.

The Action Moves to Florida

Then came the Florida trial — another kettle of fish entirely — with a  hurry-up trial date. It would be very different from Mississippi because it was to be a jury trial rather than hearings before a civil judge. It was thought, therefore, by the powers-that-be, to call for a different strategy. Instead of presentations by the firms of Scruggs and of Ness-Motley, that is, by the most prepared and experienced advocates and their well-rehearsed experts, the strategists ruled that local legal lights, “good ole boys” it turned out, would be superior trialists and presumably better able to “handle” a Florida jury.

I was called about two weeks before the scheduled trial date to a quietly elegant hotel in Palm Beach, where the Attorney General’s counsel had set up shop. Purportedly, we would develop trial strategy and hold a moot court rehearsal. In fact, I suspect I was brought in to meet and pass muster with the good-ole-boy Florida lawyers, now on a short, almost desperate time line to trial.

These fellows, let’s call them Bob and Abe, were local big timers, top of the (money) line. One was a star in the Jewish community of south Florida, the other a noted “cracker” Floridian and courtroom trial lawyer. In fact, it was clear that these two had not made time to prepare adequately for the now-imminent tobacco trial. I overheard Bob, the Florida cracker and good ole boy, promise the Ness-Motley staff that he would dedicate the next two weeks of his life solely to trial preparation, insisting, rather too strongly I felt, that he would be “plenty ready.” But, as “our lawyers” started to talk with me, it became evident that they knew the subject poorly and knew nothing of the experts or little of the literature. They simply weren’t “with it.” Comparisons with the Scruggs-Ness-Motley staff and the tobacco company advocates were shocking.

For example, I, their lead-off witness, was a total unknown to them, a carpetbagger expert they deigned to meet because we were called to a swanky hotel in Palm Beach, paid by the hour, and pushed late into frantically organizing the case. In fact, the two had apparently read neither my deposition nor my CV. They began by wasting time asking detailed questions about my education and “experience in medical practice.” Presumably, they didn’t want to get at all into the subject of “epidemiology,” whatever that might be. Their queries soon became intense and personal, almost a hostile cross-examination. I supposed that they weren’t prepared and, as courtroom dramatists, needed to devour their “victim a day.” Instead of our becoming a team, it began to be heavy going.

During a short lull in the inquisition, and a propos of nothing except my desire to get us into a more constructive and friendly conversation, I asked my inquisitors, “What did you fellas think about the Jacksonville case that the tobacco industry just won?”

After they replied with a series of tut-tuts, I deliberately name-dropped: “Well, you know, my cousin, Bob Smith, won that case for the tobacco folks.”

“Bob Smith’s your cousin?” asked Bob, the Florida good ole boy, amazed. “Well, well, brilliance clearly runs in families, doesn’t it? Ole Bob and I go back many years, ya’ know. . . yackety-yak.”

Thereafter, it was smooth sailing with the good ole boys, proving again I suppose that it’s not what you know, it’s who you know. Apparently, in some cases it’s not only who you know, it’s to whom you are related by blood!

The Florida Tobacco Trial preparation in Palm Beach moved ahead briskly. Then, on the brink of trial, the Florida case, too, was settled, and instead of for $3 billion, it was 11, and eventually, I think, $17 billion.

The last I saw about the Florida case was a full-faced, two-column news photo in a Sarasota newspaper of my “pal,” Bob, the Florida good-ole-boy trial lawyer, righteously emoting on the rationale of why he should receive an X billion dollar fee as counsel for the state’s tobacco case, explaining that this was really much less than the 25-percent contingency fee he usually got in such litigation! He was able in the news interview to turn the hot issue, his exorbitant fee, to one against “the monster tobacco companies who seek to determine lawyer fees.” According to the Associated Press account, this “key member of Florida’s ‘Dream Team’ of lawyers” told a Senate ethics panel that “cigarette makers control the nation’s legislatures and the U.S. Congress.”

Imagine, if you will, that this advocate, Bob, apparently so ill-informed or negligent in his own case preparation, and so puffed up in his person, truly expected to run off not with thousands or even millions of dollars, but with billions. It would have been laughable if not so nauseating. Not that it wasn’t amusing for me to learn from good ole Bob’s considerable authority that “brilliance clearly runs in families.” But I hope ardently that his colleagues on the Florida bench cut him, and his fee, down to size; way, way down!

Duty done

By this time, I figured that my “duty” in the tobacco trials was done. I had taken on Mississippi because it was the sentinel case, the pioneering one, and because I admired and respected its leaders and their approach. I had taken on the Florida case in part to serve my beloved if often besmirched home state. And I had taken them both on pro bono. In fact, in the course of depositions, I took considerable heat from the tobacco lawyers about my motives for not taking a fee as expert witness. They would not have blinked an eye to learn I took $400 an hour as an expert. But they looked blank when I recited my reasons for giving my time gratis: that the trial could lead to pioneering public policy; that it was in the nature of epidemiology and public health professionalism to take a policy stance based on the evidence; and finally, that there were personal issues of challenge, respect, and a perceived obligation. Stacy, too, was pleased at my untainted pro-bono status. But for these reasons I think I was suspect in the eyes of the tobacco lawyers.

In rapid succession came the Texas and Oklahoma Attorneys General cases. The Texas case was settled so quickly that I wasn’t formally deposed. But when the Oklahoma case came up, the tobacco industry dug in its heels. By that time, the first national tobacco settlement proposal, which had been masterminded and instigated by Scruggs and Commissioner Kessler and their friend in the White House, had been defeated in Congress, presumably by heavy tobacco lobbying and maybe insufficient clout at the top. Tobacco also had just won a couple of court cases and was again riding high, satisfied now that it had rediscovered the correct defense, that is, attack.

In 1999, I was deposed for the Oklahoma case in a suburban Minneapolis law office by a tobacco lawyer and his well-read clerk, neither of whom I had met before. This attorney was not of the quiet scholarly ilk; rather he was tough, shrewd, and energetic, and he bore in with torturous persistence. I was defended again by Charles Mikhail and Alexandra Wagner, who had been at my side through all the depositions, and, this time by Steve Bozeman as well, Scruggs’s partner, a sharp and delightful good ole boy from Pascagoula. 

The Oklahoma deposition was held in a stuffy room and lasted 10 hours, with few and short breaks. The tobacco lawyer became merciless as the day wore on. In the end I worsted his fire, not by successful checkmating but simply by refusing to give him back the words he wanted, professing that I failed to understand his questions. These he reworded and readdressed perhaps a dozen times. My colleagues from Pascagoula were pleased that I didn’t wither under his heavy guns.  But for me, it was not enough. I had simply acted witless, failing to parry his thrusts with rapier logic or wit. It was a mildly depressing experience.  But happily, the testimony was completed, my role as expert witness for the Tobacco Trials was over and done.

When Oklahoma was settled, the good-guy lawyers from Pascagoula and Charleston, seeing that other states would soon fall in line, agreed that I had done my share. I would be off the hook.

That was the last of our communications on tobacco, save one or two personal ones, including news of Alex Wagner’s new baby, and Charles Mikhail’s need for four (!) Blackburn-Beach Blues Band CDs. Ann Ritter of Ness-Motley, soon broadcast a general letter of thanks to all the experts and asked if we would be willing to send a letter urgently that they might use to justify their claims against the tobacco monies awarded. I fired back a letter within the day, lauding the professionalism, intellectual honesty, levelness and lack of emotionalism, the appropriateness of language, and the great effectiveness with which, in my view, they and the Scrugg’s firm pursued the States’ cases. I commented also on how well they supported their experts around deposition time and generally expressed admiration for the modus operandi and principles of their tobacco litigation. It all paid off for “the cause,” and, I suspect, paid off quite well for the lawyers, too. [I note that Ron Motley, the leading partner in the Charleston law firm involved in the tobacco trials, is representing victims of the 9/11 attack in efforts to obtain monies from wealthy Arab nation supporters of Al Queda. They think big, lawyer fellows.]

Meanwhile, the biggest splashes nationally came with two Miami class-action suits, one of airline attendants over exposure to second-hand smoke and one for lung cancer victims, and the other the State of Minnesota and Minnesota Blue Cross-Blue Shield case against tobacco, where Attorney General Skip Humphrey steered a different course from that of the other attorneys general. His way was to collect huge amounts of information, with the help of a civil judge who made almost all decisions in his favor, to subpoena tobacco company records, some 33 million pages of them. These he used in effective arguments to demonstrate devastatingly how the companies had long and deliberately deceived the scientific world and the public.

The primary issue presented to the jury in the early days of the Minnesota trial had to do with addiction and youth behavior and the tobacco companys’ deceptions. Our university colleague, Cheryl Perry, was a powerful and heroic witness, putting down the tobacco lawyers effectively. She was the darling of our school and of the media during those days, and spent a great amount of time and effort on her effective testimony. It, too, paid off as the trial went on; the tobacco companies crumpled and settled abruptly, just at the moment the question was ready to go to the jury.

I was invited  by the Goldblatt law firm join in their sensational and lucrative Miami cases against tobacco. But I was as much impressed by their lack of scholarship and by their hyperbolic, vituperative language as I had been by the quiet, steady preparation and seriousness of the Ness-Motley and Scruggs firms. I decided not to join the Miami circus. Eventually, they put on a rousing and incredibly successful show in their carnival format. But I would have cringed performing under their big top.

The national grand settlement plan with Big Tobacco, which first failed, apparently due to tobacco lobbying and insufficient will at the top, was passed two years later in a considerably watered-down Act of Congress. There remain only some unseemly internecine squabbling over the $225 billion in tobacco proceeds, very little in terms of smoking preventive action, a brisk increase in the cost of cigarettes, and a “healthy” rise in the value of tobacco company stocks. One might well ask about the tobacco trials — who won?

In 2003, most of the states have absconded with tobacco fund proceeds to help deal with their serious budget deficits. In Minnesota, the Academic Health Center got a cut to replace lost federal training funds, while awards earmarked for community health promotion programs have been diverted or held back by special groups using different legal ploys. Effective youth anti-smoking programs are underway in only a few places. On the other hand, Phillip Morris and Co. advertise heavily these days that they and the tobacco world have changed fundamentally; they are now abiding by the law about billboards and sporting events and cartoon ads. They just want us to know that.