Chapter 29, Part 2

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

Before Charlie Kueper's lawsuit against R.J. Reynolds Tobacco Co. in 1992, the company just hadn't faced any significant legal threat since the mid-1980s. In the 1985 case brought by the widow of John Galbraith, a jury in Santa Barbara, Calif., voted 9-3 in favor of RJR because it was not convinced that Galbraith was addicted to cigarettes or that smoking had killed him. The case was significant because Reynolds had faced an old adversary, San Francisco's Melvin Belli, one of the first attorneys to take a tobacco lawsuit to trial.

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.

By 1988, the tobacco-litigation spotlight had shifted to Lexington, Miss., where the family of Nathan H. Horton had sued American Brands Inc. Horton was a carpenter who had smoked two packs of Pall Malls a day for more than 30 years until he died at 50 of lung cancer.

The case drew national attention for several reasons. Don Barrett, a Mississippi attorney, was suing on unprecedented charges, claiming that pesticides in American's cigarettes had caused his client's death. Some believed that Barrett stood a good chance of winning. For one thing, Horton was black, as were 75 percent of the people in Holmes County, a place far removed from the excesses of corporate America. Barrett also had Mississippi's comparative-negligence law on his side, which meant that American could be held liable if nine of the 12 jurors found the company was at fault by a mere 1 percent. The case ended in a mistrial when the jury deadlocked 7-5. But Barrett didn't give up. He filed another lawsuit on Horton's behalf, this time blaming his client's death on the cigarettes and not the pesticides. In 1990, a jury agreed with Barrett but awarded no damages. The jury's decision proved that the cigarette companies' defense was unbeatable: The plaintiff made the choice to smoke and should not profit from that choice. (Peter Pringle footnote, details on Nathan Henry Horton vs. The American Tobacco Co.)

Some industry critics believed that American swayed the county before the jurors ever decided the case. The company hired five Mississippi law firms as well as local community leaders to help defend and advise it. The community leaders were ''consultants,'' told to come to court each day, sit behind the tobacco side, and act as a ''shadow jury.'' Known as the ''fan club,'' the leaders were often seen shaking the hands of tobacco attorneys. Some consultants said they were paid as much as $50 an hour.

The defense team was like a new industry come to town. It took over a wing of the local motel and had its meals catered by the restaurant next door. It rented a house for office space and cleaned the town's only liquor store out of Bombay Gin. All the spending -- supposedly as much as $1 million -- was a welcome change for the economically depressed county.

''I thought the fix was in,'' said Don Garner, a professor at Southern Illinois University's law school who observed part of the Horton trial. ''In other words, I'm saying they did a very vigorous lawyering in making their presence known in this county.''

Tobacco Comes to Belleville

Paul Crist was RJR's lead attorney for the trial of Charlie Kueper case in Belleville, Ill. (AP Photo)

Two years after the Horton case, RJR's defense team would temporarily move into Belleville, Ill., to take on Charlie Kueper and his attorney, Bruce Cook.

The company rented office space near the courthouse and had meals catered in twice daily. For more than three months, the defense team stayed at the Hyatt Lodge, a modest motel west of downtown. The motel, with its Southwestern motif, was also home to RJR's witnesses, including some of the company's top executives. It was a far cry from their usual accommodations.

The executives weren't used to being hauled into court either. But Illinois law allowed Cook to demand that they appear, and he had no intentions of letting that opportunity pass.

Testimony began on Nov. 19, coincidentally the day of the Great American Smokeout. Local residents paid little attention to the tobacco trial, but the national media swarmed in. Kueper was suddenly thrust before the glaring lights of TV cameras. He usually let his son, Chuck, speak for him. He just didn't like the attention.

Kueper's humility only attracted more attention. He arrived in court each day in casual clothing -- usually a sport shirt and slacks. Kueper hadn't worn a suit since his wedding day, and he didn't intend to wear one now. He had even warned his family not to bury him in a suit. The tobacco lawyers and executives always arrived dressed in their finely tailored clothing. Some executives brought their wives. They were beautiful people with fancy dresses and expensive jewelry. ''They were different than us. We were just common people,'' said Patti Kueper, Charlie's wife.

Cook's role also heightened interest. There was little doubt that he would keep things lively and interesting. But could he finally break the tobacco industry's defense? He had an advantage over previous plaintiffs' lawyers. The U.S. Supreme Court had ruled that year that the warning label -- required on each pack of cigarettes since 1966 -- did not shield tobacco companies from some lawsuits involving conspiracy. The Kueper case would be the first to be tried after that ruling.

From the beginning, Cook said he would prove that Reynolds and the Tobacco Institute plotted to hide the dangers of smoking from the public by using misleading advertising. He charged that they withheld research information and created advertisements to entice young people to smoke and to keep them smoking.

''The conspiracy we expect to prove is that these defendants, with full knowledge that the product causes disease, encouraged people -- including Charlie Kueper -- to smoke their product, all for money,'' Cook said. ''It's a conspiracy based on human greed.''

Cook spent a good portion of the trial battering tobacco witnesses, including , RJR's chairman, and Walker Merryman, the Tobacco Institute's vice president of public affairs.

Cook kept Johnston on the stand for two days and repeatedly asked him about advertising campaigns that Cook claimed tried to disprove that smoking causes cancer. Cook also grilled Johnston over the industry's claims that the surgeon general was a liar. ''Is it nice? No,'' Johnston replied. ''This is a very heated controversy on both sides.''

During Merryman's testimony, Cook introduced various TV commercials the cigarette industry had produced in the 1950s and '60s. He argued that the ads never said anything about the risks of smoking and in some cases targeted teen-age smokers. For example, RJR once sponsored the CBS television show, The Beverly Hillbillies, and even worked its Winston slogan into the show's theme song, which Cook played for the jury.

It went:

Just come along and visit with the Clampett family

As they take you to their mansion in the hills of Beverly.

The folks who bring this homey visit to your TV sets

Are the folks who also bring to you Winston Cigarettes.

Winston tastes good like a cigarette should.

Merryman said he didn't think that the show appealed to young people. Cook would later compare Merryman to a ''trained seal,'' and even barked at Merryman during a break in the trial.

Cook was known for such theatrics. At times, he would wave his arms wildly in court or rifle through documents trying to locate one to counterattack witness testimony. Kueper, who grew weaker as the trial progressed, enjoyed Cook's performances. The tobacco attorneys didn't and repeatedly objected.

At one point during the trial, Cook and Paul Crist, RJR's lead attorney, went head to head after Cook accused Sam Simmons, Reynolds' director of smoking and health, of withholding information during his testimony. Cook said that Crist knew that Simmons hadn't been completely forthcoming.

''Half-truths are worse than lies, Mr. Crist. And you, sir, are the master of half-truths,'' Cook said. The conflicts provided entertaining copy for the media, but the jury seemed to grow tired of Cook's tactics.

The defendants' attorneys remained authoritative. They had to convince the jury that there was no proof that cigarettes caused Kueper's cancer or cancer in general. That claim ''is a matter of very spirited public debate,'' said Larry Hepler, an attorney for the Tobacco Institute. (St. Louis Post-Dispatch footnote, Larry Hepler quote.)

Instead, the defense argued that Kueper's cancer could have resulted from exposure to chemicals, including the defoliant Agent Orange, which was used in Vietnam. After retiring from the Army as a master sergeant and recruiter, Kueper drove a truck for Vertex Chemical Corp. and could have been exposed to more than 20 cancer-causing chemicals, the defense said.

The tobacco attorneys portrayed Kueper as a risk-taker. He rode a motorcycle -- sometimes without a helmet. He parachuted for sport, and he had made hundreds of military jumps in training and in combat. Furthermore, he had served three tours in Vietnam and volunteered for duty with the Special Forces. He drank six to eight cups of coffee a day.

But the industry's primary defense rested with Kueper's own testimony. He was his own worst witness. While on the stand, Kueper admitted that he had read and disregarded the surgeon general's warnings on cigarette smoking. For someone who blamed cigarette advertisements for encouraging him to smoke, Kueper couldn't recall any of those ads until he was shown a tape to refresh his memory.

On Jan. 29, 1993, more than two months after the trial began and after 14 hours of deliberation, jurors ruled unanimously in favor of RJR and the Tobacco Institute. There wasn't enough proof that false advertising had duped Kueper into smoking or that smoking caused cancer. Jurors also agreed that Kueper knew the risks but chose to smoke anyway.

''He enjoyed it,'' said jury foreman Ed Ratka of Washington Park, Ill.

The verdict was reached late on a Friday night. Cook, who had left town for the weekend, wasn't even in the courtroom. Privately, he had believed that he would lose the case.

The defendants celebrated. The jury's verdict had sent a message to the plaintiffs' bar, Reynolds' lawyers boasted. ''In the Belleville newspaper, the reports were that not only did they rule with us, but they concluded that we were right when we said cigarette smoking may be a risk-factor, but it hasn't been scientifically proven to cause disease,'' recalled Daniel Donahue, RJR's deputy general counsel. ''That sent a pretty strong message to the organized plaintiffs' bar that if Bruce Cook under those circumstances with those judges couldn't win, could they?''

Charlie Kueper, who had appeared almost every day in court, was also not around when the verdict was read. He had been so high on morphine in the final days of the trial that Patti feared that he wouldn't make it through the day. At times, she saw the pain in her husband's face; his jaw would tighten. Others would never know. Kueper wasn't one to complain.

There was also little to say about the verdict. Charlie never cared about the money. Cook never even told him or Patti how much they were suing for. Charlie just wanted others, especially children, to understand how smoking could do irreparable harm.

In the final weeks before his death, Charlie didn't have the energy to eat, much less to get out of bed. Over the years, he had lost much of his blond hair. What was left had turned brownish gray. Charlie's face had begun to age, and cancer seemed to speed up the process. Soon, the man with the James Dean stance and the John Wayne stare could no longer be found in family photos. His was an emaciated body. His skin was yellow. His eyes were pale and weak. Breathing became as much of a chore as sitting up. Bouts of coughing, nausea and vomiting were routine.

Patti held her husband in the early morning hours of March 5. As always, Charlie tried to maintain control, not allowing himself to take that final breath until he was ready.

At 2:45, he did just that.

• Coming Friday: Joe to the Rescue