Chapter 28, Part 1

By Frank Tursi, Susan E. White and Steve McQuilkin
JOURNAL REPORTERS
© 1999 Winston-Salem Journal

The headlines on June 13, 1988, were huge. For the first time, a jury had found a tobacco company liable for the death of a smoker.

The R.J. Reynolds Tobacco Co. was once the largest cigarette company in the United States with a powerhouse of best-selling brands: Winston, Salem and Camel. But times changed, and as the case against smoking became more pronounced in the 1960s, RJR failed to adapt to the marketplace. Its rivals would eventually rush past it, and RJR's efforts to catch up would have a profound impact on the company and the cigarette industry.

The award itself was paltry -- a mere $400,000. Liggett Group Inc., the defendant, would appeal; that would be easy. Repairing the PR damage that had been done to the company -- and to the overall industry -- would be another matter.

For five years, tobacco executives had been hardly able to pick up a newspaper or turn on the television without seeing some report about ''secret'' industry documents that had been revealed in the trial of Cipollone vs. Liggett Group Inc.

Rose Cipollone, a housewife from Little Ferry, N.J., had filed the lawsuit against Liggett, Philip Morris Inc. and Lorillard Inc., in August 1983. Antonio Cipollone continued the case after his wife died of lung cancer in October 1984 at age 58.

More than 300 lawsuits had been filed against the industry since 1954, but none had gotten as far or exposed the cigarette companies as much as Cipollone. Nearly a half-million confidential documents had been yanked from the industry's files, and 300 of those had been made public in an attempt to show that the tobacco companies had conspired for more than 30 years to conceal the truth about smoking.

They were embarrassing. No outsiders had ever peered so deep into the industry's inner sanctum. Tobacco lawyers dismissed the documents as insignificant, but the national media thought otherwise. Even the judge in the case was so startled by the documents that he said there was enough evidence to prove that the tobacco companies were guilty of a devious scheme that harmed their customers.

But after four and a half months in trial, jurors, weren't convinced of such a conspiracy. The only issues they agreed on were that Liggett was guilty of using misleading advertising before 1966 and that Rose Cipollone was primarily responsible for her lung cancer because she had chosen to smoke. By blaming Cipollone for her health problems, the jury couldn't award her estate millions of dollars. It could, however, sympathize with Cipollone's husband and agreed that giving him $400,000 was better than nothing.

The mixed verdict wasn't quite what either side was hoping for, though it still amounted to the first loss for a tobacco company. But that wasn't the real damage. For the first time, a plaintiff's attorney had invaded the tobacco industry's research and records archives, forcing it to explain strategies, programs and statements that had been hidden from the public for years.

There was still plenty left to uncover, and the tobacco industry knew that other plaintiffs' lawyers would come digging. So would a new class of lawyers, and this group had the resources and clout to match the industry. The Cipollone case would help pave the way for the wave of lawsuits by state governments in the 1990s, pitting cigarette-makers against a crop of crusading politicians with the means to match their ambition.

The results would be more far-reaching than anyone would have guessed.

Lost Dreams

It was on a summer afternoon in 1983 when lawyer Marc Edell first sat down with Rose Cipollone and explained the gamble she was taking by suing the tobacco industry. ''I was laying it on the line, not trying to woo her,'' Edell recalled, ''and telling her it would be extremely burdensome for her. . . putting the worst face on it, sort of testing her. You don't want to cajole someone who doesn't have the fortitude. You don't take on someone who just happens to be convenient for you at the moment.''

Edell didn't know it at the time, but his client was dying. Forty years of smoking had ravaged her 57-year-old body.

Rose DeFrancesco started smoking in 1942. She was 16. The DeFrancescos forbade their children to smoke, but Rose and her older sister disobeyed, often buying two or three cigarettes at a time at the corner candy store. To the impressionable young girls, smoking was as glamorous as the Hollywood starlets they tried desperately to imitate. After school, Rose often slipped into darkened movie theaters to watch her heroines. There, she would slide down into her seat, rest her head against the back, and dream of what it would be like to be on the big screen.

She was especially enamored of such actresses as Bette Davis, Joan Crawford and Norma Shearer. They were beautiful, and they made smoking look so easy . . . so cool . . . so romantic. She would never forget the famous scene in Now Voyager in which Paul Henreid lit two cigarettes at the same time before passing one to Davis.

Over the years, Cipollone averaged about a pack and a half of cigarettes a day. She favored Chesterfields, but eventually switched to several other brands, including filtered cigarettes, which she believed were safer than regular brands. She smoked Liggett's L&M brand because it was advertised as ''just what the doctor ordered.'' To Cipollone, that implied that they were less hazardous.

Cipollone occasionally tried to quit, but she never had any success. She smoked while pregnant with her first child, even going through a pack during labor.

Antonio Cipollone adored his wife and would do anything to please her. When she ran out of cigarettes at night, he went out to buy her more. If he brought back the wrong brand, Cipollone, who didn't drive, sent him out again. Years later, this image would leave jurors with the impression that Cipollone was a stubborn and domineering woman.

Edell was convinced that customers such as Cipollone would not have smoked if they had known the true dangers. He was convinced that the cigarette companies had known smoking caused cancer well before the U.S. surgeon general first warned the public in 1964. Edell, 33, was determined to sue the industry for fraud and deceit. If his theory worked, he would earn the fame and fortune that until then he had only dreamed about.

His law partners warned him that the case could drive him into bankruptcy and he would be lucky to survive.

It didn't help that Edell's client knew about the health effects of smoking but had never stopped. Along with her husband's pleadings, Cipollone had for years been advised by her doctor to quit. She also admitted that she had heard about health reports against smoking and had seen antismoking commercials on television. Some gave advice on breaking the cigarette habit. But Cipollone said she didn't believe the warnings and was too addicted to cigarettes to get rid of them.

''I didn't want to hear it,'' she said. ''I never gave any thought to giving it up. I liked to smoke -- I liked the way I looked. (It) gave me something to do . . . If there was anything that dangerous . . . the tobacco people wouldn't allow it and the government wouldn't let them. . . . The tobacco companies wouldn't do anything that was going to kill you. . . . So I figured until they proved it to me. . . I didn't have to take it seriously. Maybe I didn't want to believe it.''

By 1981, doctors discovered a malignant tumor in her right lung and removed the upper lobe. A year later, the cancer returned, and the rest of her right lung was removed. Cipollone continued to smoke. She finally stopped in 1983, but it was too late. The cancer had spread; it eventually entered her liver and brain.

By late October 1984, Cipollone lay in a hospital bed nearly lifeless. ''She had tubes all over her, drainage, everything -- it was a mess,'' Tony Cipollone recalled. He held his beloved wife in his arms one last time. ''She just closed her eyes.''

Jurors were affected by such powerful scenes. But Edell also wanted them to see that the industry was responsible for addicting Cipollone and countless other smokers to a product that ultimately killed them. Edell summarized his thoughts in his opening statement, delivered before the U.S. District Court in New Jersey in February 1988: ''Members of the jury, this case is about freedom of choice, freedom of choice that (the tobacco companies) made,'' Edell said. ''They had a choice whether to warn Rose Cipollone and millions of other people. They made a choice when they embarked on a campaign to deceive, confuse, and mislead people. . . . They made their free choice because they knew all the facts, unlike Rose Cipollone.'' (Kluger footnote, information on Cipollone vs. Liggett Group Inc.) (Pringle footnote, information on Cipollone vs. Liggett Group Inc.) (The American Lawyer footnote, information on Cipollone vs. Liggett Group Inc.) (Winston-Salem Journal footnote, information on Cipollone vs. Liggett Group Inc.) (Time footnote, information on Cipollone vs. Liggett Group Inc.) (Business Week footnote, information on Cipollone vs. Liggett Group Inc.) (Best's Review footnote, information on Cipollone vs. Liggett Group Inc.) (The American Lawyer footnote, information on Cipollone vs. Liggett Group Inc.) (Science footnote, information on Cipollone vs. Liggett Group Inc.) (The American University Law Review footnote, information on Cipollone vs. Liggett Group Inc.) (Georgia Law Review footnote, information on Cipollone vs. Liggett Group Inc.)

• Coming Tuesday: A Privilege Denied