Chapter 8, Part 2

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

From the beginning, members of the tobacco industry's Committee of Counsel agreed that the companies had to stick together if they were going to avoid being clobbered in the courtroom. (Kluger footnote) (Wall Street Journal footnote; details on the Committee of Counsel.)

But to do that, the lawyers believed they had to know everything that was going on within the industry, particularly with research. Everything that came out of the tobacco companies -- from press releases to scientific reports -- had to support the industry's legal strategy. Public doubt about the causes of cancer had to be maintained.

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.

Hill & Knowlton, a New York public-relations firm, was hired to help promote this strategy. As more medical evidence was released suggesting that smoking caused cancer, the PR staff debated how best to respond. But the industry lawyers already knew the answer: Ignore it. (Kluger footnote; Hill & Knowlton's relationship with the tobacco industry.)

''We had influence on policy at the beginning,'' recalled Loet Velmans, who worked at the agency during the 1950s health scare. Velmans later became H&K's chief executive.

''We could consult with (the client), on what areas of research more specifically to look at, in terms of lung disease and, later, heart disease.''

But that changed after the surgeon general's report in 1964. ''The client shut us out after a couple of years because he probably knew more than he would ever admit.''

Fed up with the industry's reluctance to change, Hill & Knowlton would ultimately cut its ties with the tobacco companies.

The dissension and debate was even present at the Tobacco Institute, the industry's public-relations and lobbying group.

Fredrick Panzer, the institute's assistant vice president for public relations, expressed his opinion of the industry's actions in a May 1, 1972, memo to Horace Kornegay, the former N.C. congressman who had become the institute's president.

''For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts -- litigation, politics, and public opinion,'' Panzer wrote. ''While the strategy was brilliantly conceived and executed over the years helping us win important battles, it is only fair to say that it is not -- nor was it intended to be -- a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of:

"Creating doubt about the health charge without actually denying it.

''Advocating the public's right to smoke, without actually urging them to take up the practice.

''Encouraging objective scientific research as the only way to resolve the question of a health hazard.''

Though the industry was winning lawsuits, plaintiffs were also doing a much better job conveying their arguments to juries, he said. Politically, the push for stricter regulations on tobacco continued. Publicly, the industry appeared to be going nowhere, Panzer asserted.

''On the public opinion front . . . our situation has deteriorated and will continue to worsen. This erosion will have an adverse effect on the other fronts, because here is where the beliefs, attitudes and actions of judges, juries, elected officials and government employees are formed,'' Panzer wrote.

RJR's lawyers today insist there is no proof that a ''holding strategy'' was ever used. Paul Crist, a partner with the Cleveland law firm Jones, Day, Reavis & Pogue, said he doesn't know what the term means and that he doesn't think that Panzer even knew what he was talking about since he had just started his job at the Tobacco Institute. Panzer was a former aide to President Johnson.

''A. He had no tenure there to be able to say what had happened there over the past 20 years; and B. He had no policy-making function at all,'' Crist said.

It's worth noting that 13 years ago, a report bearing Crist's name discussed the industry's holding strategy and the Panzer document, which was said to include ''damaging admissions'' and provided plaintiffs with a ''roadmap of the Open Question strategy.''

By keeping such a tight rein on the industry's research, the tobacco lawyers protected the companies from lawsuits and ensured that the industry continued to thrive.

But to plaintiffs' lawyers and other critics, the industry's actions only guaranteed that more people would become smokers and that more smokers would die.

''In 1953, studies came out that cigarettes cause cancer, and it was . . . scientifically established. And the reaction of the industry was not `let's clean the product up and do it right'; it was to treat it as a public-relations problem, cover it up,'' said Robert Blakely, a former federal prosecutor. ''And they knew now that if used as directed, it killed, and instead of stopping it or cleaning it up, they covered it up.''

RJR lawyers say that the millions of dollars in independent scientific research the tobacco industry has supported prove otherwise. Furthermore, the facts about smoking's relationship to cancer and other diseases are still not known, said Charles Blixt, an executive vice president and the general counsel at Reynolds.

Until all those facts are in, the industry will continue to demand answers in court and elsewhere. ''There's still missing information. There's still missing pieces of that puzzle,'' Blixt said. ''It's not an unreasonable position for us to insist that the science be buttoned up or proven.''

The First Wave

RJR operated for nearly 80 years before anyone sued the company claiming that the company's products harmed their health. (American University Law Review footnote) (Dallas Morning News footnote; statistics on the tobacco industry's legal record.)

Eva Cooper of Massachusetts filed the first lawsuit in June 1954 on behalf of her late husband, Joseph, who had died of lung cancer. It launched what has been called the ''first wave'' of tobacco litigation.

The Cooper case came less than a year after Dr. Ernst Wynder reported that tar from cigarette smoke painted on the backs of mice produced cancerous tumors. In her lawsuit, Cooper said that Reynolds had deceived her husband and the public into believing that its Camel cigarettes were ''wholesome, fit for use and unlikely to cause any harm or disease whatever'' to the respiratory system. Cooper said RJR's advertising also told smokers that 20,000 doctors believed Camel cigarettes were ''healthful.'' Those statements encouraged smokers to buy the company's cigarettes, Cooper asserted.

Her husband had trusted that Camel cigarettes were safe. His death proved they were not, she said.

The Cooper case was dismissed because the court said that Eva Cooper did not prove that R.J. Reynolds' advertising had influenced her husband to smoke.

Cooper's case wasn't the only one to fail because of insufficient evidence. Others fizzled under the pressure of mounting legal fees.

Many plaintiffs' attorneys in the 1950s were sole practitioners. They were too intimidated to sue a major corporation. Those willing to take the risk were forced to scale tobacco's ''king of the mountain'' strategy. (Journal of the American Medical Women's Association footnote; tobacco industry's 'king of the mountain' strategy.)

Tobacco lawyers demanded countless depositions, created a maze of discovery and filed endless motions. The legal hardball delayed cases and forced plaintiffs to spend and spend; some nearly went bankrupt.

''The reputation these cases had was you're not going to win them,'' said Daynard of the Tobacco Products Liability Project in Boston. ''For the most part, (plaintiffs' attorneys) just said, `Oh, yeah, you think you can, but you can't. We can show you the graveyards where the bodies are buried -- metaphorically -- of the people who tried to bring the cases.''

Even if a plaintiff could afford to stick with a case, no one got past the industry's defense.

In courtrooms across the nation, tobacco lawyers played on a judge's or jury's skepticism about the causes of cancer by downplaying the medical evidence that linked it and other diseases to smoking. In some cases, they argued that the plaintiff was probably more susceptible to cancer because of his genetic makeup, a theory advanced by Dr. Clarence Cook Little, the scientific director for the Council for Tobacco Research since the mid-1950s. (Pringle footnote; Little's constitutional hypothesis.)

The industry had always argued that it didn't force people to smoke and that everyone knew the risks. After 1965, warning labels helped boost that argument because a plaintiff was warned of the dangers every time he lit up.

It was almost too easy. Of the 10 reported product-liability lawsuits filed against the tobacco companies in the mid-1950s and 1960s, plaintiffs dropped four, juries ruled in favor of the companies in three cases and judges dismissed the three others.

Compounding the problem was that society just didn't know what to make of someone who sued the tobacco industry, which had been woven into America's fabric for hundreds of years.

Socially, the cigarette did not discriminate; the rich and the poor enjoyed it equally. It calmed the nerves of soldiers in combat, sustained the euphoria after great sex, and soothed the palate after a delicious meal.

Politically, the tobacco industry was a powerhouse that guarded its interests in Washington and elsewhere by contributing money and favors to Democrats and Republicans.

Economically, the cigarette was a symbol of livelihood to tobacco farmers who paced nervously over their fields every year like fathers awaiting the birth of their first child.

Tobacco's Ivy League lawyers in pinstriped suits liked nothing better than to paint these typical ''American'' scenes to judges and juries.

''It was like suing dirt; it made no sense,'' said Don Garner, a law-school professor at Southern Illinois University and an expert on tobacco litigation. ''Everybody was smoking. Sure it was dangerous, so what? Everybody knew that, or they more or less knew that.

''The tobacco companies were an industry that had financed the Civil War, for God's sake. They weren't as yet turned into a drug cartel. They had not yet been demonized. So the idea of their being liable for their misdeeds just didn't make any sense.''