Chapter 29, Part 1

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

Charlie Kueper sat motionless on his hospital bed as the doctor's words tumbled around his head. ''You have lung cancer,'' he repeated to himself. ''Three months to three years left to live.''

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.

It was January 1991. Nearly two months had passed since Kueper had seen a doctor about his throat. Now after countless examinations and X-rays, that irritating tickle had been diagnosed as a malignant tumor eating away at his lungs and slowly disabling his body. At 49, Kueper was neither ready for retirement nor ready to die.

Five months later, Charlie Kueper was added to the list of the more than 300 plaintiffs to sue the tobacco industry on claims that smoking had damaged his health. By 1993, he was just another smoking victim -- in court and in life. Since 1954, lawyers had vigorously searched for the ''perfect plaintiff'' to take down the cigarette companies. Some experts believed that Kueper was the next best shot. In reality, the Kueper case was the final wake-up call to plaintiffs' lawyers that they would have to stop relying on individual lawsuits if they wanted to beat the tobacco industry.

Not that the case didn't have possibilities. The lawsuit was filed in Belleville, Ill., a half hour east of St. Louis. Surrounded by fields of corn and wheat, it was a place with small-town values and a for handsomely rewarding average folks suing big business.

And at the time, Charlie Kueper was as average as they come. A former postal worker, he was a family man who had served his country, loved fried pork chops, enjoyed NASCAR races and drove a truck for a living. In the fight against tobacco, he was the ultimate little guy. But he wasn't the perfect plaintiff. Kueper said he had chosen to smoke, a fact that neither he, nor the jury, could ignore.

Life's Lessons

A young Charlie Kueper. cigarette in hand, with family members in 1941. (Photo Courtesy of Patti Kueper)

Kueper had been a smoker for 31 years, consuming about a pack and a half a day -- more than 300,000 cigarettes. He smoked so much that his habit was chronicled in family photos. One of the earliest, taken in December 1961, showed a handsome, blue-eyed young man with a high forehead and crewcut expelling a thin stream of smoke from his pursed lips. He was 20. The freckles that once dotted Kueper's nose and upper cheeks had faded.

For young men growing up in the 1950s and '60s, smoking their first cigarette was like losing their virginity: it separated the men from the boys. For Kueper, it was just something to do. His parents smoked. He had even puffed a few of his father's Camels when he was in the fifth grade. Kueper's tastes changed, however, in 1959, shortly after he graduated from Lamphier High School in Springfield, Ill. That's when he became a Winston man. He would stick with the brand the rest of his life.

Kueper wasn't a chain smoker, but he never wasted a good smoke. They helped ease him into the day. ''As soon as my feet hit the floor -- as soon as I got up -- I had a cigarette in my mouth,'' he said.

Charlie Kueper, with his father, John in 1966. Charlie smoked Winstons; his dad, Camels. (Photo Courtesy of Patti Kueper)

After high school, Kueper enlisted in the Army, where nearly everyone he encountered smoked. Trainees were even given regular breaks and told, ''Smoke 'em if you got 'em. Bum 'em if you don't.''

As a combat soldier pressing through the jungles of South Vietnam, Kueper often depended on the cigarettes the U.S. Army provided in his field rations. By 1965, he was a Green Beret, the best of the best as far as the Army was concerned. He was with the Sixth Special Forces unit, teaching local villagers how to defend themselves.

He loved the adventure, but the military also offered him stability. Kueper had grown up with an alcoholic father and a cold and distant mother. Barely 5-foot-8, he was small compared to many of his Army buddies, but he had the stance of James Dean and the stare of John Wayne. Kueper rarely smiled. What he lacked in physical stature, he made up for in character.

This photo was taken a few weeks before Charlie's death in the winter of 1993. (Photo Courtesy of Patti Kueper)

Patti Kueper had recognized as much from the moment she met Charlie. She had never known such a proud, honest man. He was unselfish and kind. In Patti's eyes, Charlie had the integrity of a saint. ''I often used to say that my mom and dad liked Charlie better than me,'' she said. ''Everybody felt that way about him.''

Patti certainly hadn't loved any man as much. They were married in 1974. It was the second marriage for each. If there was such a thing as a soul mate, then Patti believed she had found hers in Charlie.

Some 16 years later, sitting at her husband's hospital bedside, Patti was consumed with thoughts of losing him. Gripping his hands, she began to sob. Charlie, whose eyes were already swollen with tears, soon followed.

The Bumpkin from Belleville

Bruce N. Cook loved any fight that involved an underdog. So when Charlie Kueper walked into his Belleville law office in 1991, Cook was eager to take his case.

In June, Kueper sued R.J. Reynolds Tobacco Co. and the Tobacco Institute, the industry's lobbying and public-relations group, alleging that the two conspired to deceive the public about the risks of smoking. Reese Drug Store in Cahokia, Ill., where Kueper bought most of his cigarettes, was also named in the lawsuit but eventually was dropped from the case.

Cook blamed RJR and the institute for Kueper's lung cancer and asked that the courts award more than $3 million in compensatory damages and unlimited punitive damages. ''I think they're evil,'' Cook said years later. ''I don't think that people should be allowed to make the profit that these barbarians have made without having to pay for it. The son-of-a-bitches should not get away with this for nothing.''

Cook had a flair for being brash and didn't care much for impressing people. He called himself a ''bumpkin'' and often could be spotted around the courthouse wearing Bermuda shorts and a T-shirt. In trial, he would take off his jacket and roll up his sleeves, revealing the Navy anchor tattoo on his left forearm.

But Cook wasn't naive. He was aware of the tobacco industry's legal history. He knew the risks. Since 1954, the cigarette companies had successfully defended themselves against hundreds of smoking lawsuits and in the process, financially buried a number of plaintiffs' lawyers.

Over the past couple of years, however, the industry's stranglehold had loosened -- if only a bit. In 1988, a New Jersey jury ordered Liggett Group Inc. to pay Anthony Cipollone $400,000 as compensation for the death of his wife, Rose. The verdict was later reversed on appeal and the case dropped. Still, the lawsuit and the secret industry documents uncovered by Cipollone's attorneys chipped away at the tobacco companies' image. For many plaintiffs' attorneys, it opened up a perfect opportunity to strike.

The Kuepers didn't know that history. They weren't even sure that the industry had ever been sued when they approached Cook. They also never discussed their chances of winning or how such an action might affect their lives. At the time, those things didn't matter to Charlie Kueper. Suing R.J. Reynolds was just something he had to do.

''If I die, I don't want other people to die,'' he told Patti one night as they sat at the kitchen table. ''If I can make a difference with one kid and get them not to smoke so they won't have to go through what I've gone through, it's worth it.''

Patti agreed. She, too, was a smoker and had tried to quit numerous times. She and Charlie would snub out their cigarettes and vow never to touch one again, only to light up hours later. Both had encouraged their six children not to smoke. Three eventually did, however.

''I want to tell you, every 15 or 20 minutes, it's on your mind,'' Patti Kueper said. ''You know that you need a cigarette. It's like you have no control over what you're doing. I always thought I was a strong-minded person, but I couldn't tell you how many times I tried and couldn't stop. A smoker fools himself into thinking that maybe if I just cut back a bit I'll quit. You don't; you just get right back and smoke, maybe even more than what you were before.''

Patti finally quit around 1986 after doctors told her that she had chronic obstructive pulmonary disease, a catchall phrase for emphysema, bronchitis and other lung ailments. They also demanded that her husband not smoke around her. Charlie tried to stop but couldn't. Instead, he got used to smoking outdoors.

Cook believed that Kueper was addicted to cigarettes, but he knew that his client disagreed. Kueper didn't like to think that he couldn't control his life. He would testify that he finally stopped smoking shortly before he learned he had cancer, but he hadn't. He would admit later that he smoked about 10 cigarettes over a five-month period after his diagnosis.

RJR and the Tobacco Institute continued to deny that nicotine was addicting. They said that Kueper, like others, chose to smoke, despite the known risks. So smokers who got sick had no one to blame but themselves. The tobacco industry still stands by this argument. ''Everybody has known that anybody who claims not to have been aware (of the risks of smoking) must have been somewhere else other than planet Earth for the past 20 years,'' said Daniel Donahue, Reynolds' deputy general counsel. ''This is a product which everyone -- government, society -- knows has inherent risks associated with its use, and a policy decision has been made to allow people to use it.''

Cook despised the industry rhetoric. The companies treated plaintiffs cruelly, invading every corner of their private lives. By the time the case came to trial, RJR's attorneys had tracked down friends Kueper hadn't spoken to or seen since high school, and they had found old Army buddies. They spent hours taking some 200 depositions. Cook wanted the cigarette companies to feel the same kind of pressure. He would get his wish.

A Plaintiff's Heaven

The 12 jurors and three alternates who filed into the Belleville courtroom for the first day of trial on Nov. 18, 1992, were a lot like Charlie Kueper. They were ordinary blue-collar workers, some from nearby one-stoplight towns. Eight of the 15 were smokers.

Belleville was once a coal-mining town and the stove-manufacturing capital of the world. But in recent years, it had gained another distinction: ''plaintiffs' heaven.'' The title supposedly originated because juries there delivered megabucks verdicts to little guys suing big corporations. Many of the 600 or so lawyers who currently practice in this town of 40,000 embraced that ideal. One of the biggest cases to be tried in Belleville was Kemner vs. Monsanto, which lasted for 44 months and is still considered the longest civil trial in American history. Sixty-five plaintiffs sued for injuries they claimed they received from exposure to dioxin that spilled in a train wreck in 1979. Though they won $16.25 million in punitive damages, their winnings were later reduced to zero.

Cook had won his share of highly publicized cases, including a $16-million verdict against International Harvester in 1987. Cook sued the company for injuries his clients suffered from malfunctioning tractors.

Reynolds and the Tobacco Institute were aware of Cook's success and figured that he would demand a lot of money from them. He had even remarked that he wasn't interested in destroying RJR's executives, he just wanted to ''loot them.''

That kind of talk only confirmed that Belleville was hostile territory. Tobacco critics, stock analysts and others again predicted that this could be the case to break tobacco. The defendants wasted little time in bringing in a public-relations spokesman and seven attorneys to fight Cook, including lawyers from Cleveland's Jones, Day, Reavis & Pogue, RJR's main trial firm. The company's legal team and its staff took up nearly half of the small courtroom.

There were political worries as well. The tobacco trial was being held in one of the most Democratic counties in the state of Illinois, and Cook was one of the party's biggest supporters. Reynolds lawyers had heard that Cook could have any judge assigned to the case.

''Bruce Cook was a former Democratic committeeman and therefore was a pretty significant political power broker in that area,'' recalled Paul Crist, a partner with Jones, Day. ''So we were concerned about that. . . . If the plaintiffs were to prevail there, it might be a very important milestone. And if that milestone were reached, there might be a tidal wave of litigation.''

• Coming Thursday: Sending a Message