Strong Advocate: The Life of a Trial Lawyer

13. The Great Tobacco Case

231 13 The Great Tobacco Case We don’t smoke the shit, we just sell it. We reserve the right to smoke for the young, the poor, the black and the stupid. —The statement of an R. J. Reynolds executive, according to David Goerlitz, the model who represented Winston cigarettes in newspaper and magazine advertising from 1981 to 1988 It was the largest recovery in the history of Missouri litigation! It involved the most intense effort by the largest number of Missouri lawyers, searching the most records, retaining the most experts , accepting the greatest challenge, risking the most personal assets to finance a case, and all this to sue a foe most people still thought unbeatable. It was the case of Missouri against thirteen tobacco companies. For forty years, lawyers had sued tobacco companies without a victory, eight hundred losses without winning one cent in damages. In 1953, when a scientist at Washington University in St. Louis published a report that tobacco smoke had caused cancer in mice, fourteen tobacco manufacturers reacted in a hurry by publishing a joint “Frank Statement” on January 4, 1954, in four hundred newspapers across the country. A few parts of the “Frank Statement” are worth quoting: “Distinguished authorities point out . . . that there is no proof that cigarette smoking is 232 Strong Advocate one of the causes [of cancer]. We believe the products we make are not injurious to health. For more than three hundred years tobacco has given solace, relaxation, and enjoyment to mankind. At one time or another during those years critics have held it responsible for practically every disease of the human body. One by one these charges have been abandoned for lack of evidence.” Despite the cards stacked against them, a few daring plaintiff ’s lawyers with a committed or insane determination began to sue the evil industry. They were overmatched, opposed by defense lawyers and a bevy of experts who spent 100 percent of their time defending their tobacco clients. Uniformly, the defenses that (1) tobacco is not harmful to smokers, (2) the cancers suffered by the smokers were caused by other factors, and (3) smokers assumed the risk of cancer when they decided to smoke prevailed. The smoking victim died without being compensated , and the lawyer learned that one tobacco case was one too many if he or she wanted to remain solvent. By the mid-1990s the landscape was beginning to change. Jeffrey Wigand, a tobacco executive, had secreted damaging documents out of the company’s building and soon blew the whistle on the megacorporations. Mississippi, followed by Florida, Texas , and Minnesota, filed suit. Now, no longer would it be an individual against unholy tobacco; it would be a state. Indeed, it would be four states lined up one after the other to take on the bully. Now it would be a fair fight. Missouri’s attorney general, Jay Nixon, was cognizant of the growing belief that tobacco might be vulnerable and, in the fall of 1996, called me for my opinion. My view was that the odds of prevailing both before the jury and on appeal were slim, but that tobacco deserved to be sued. Nixon had a political and practical dilemma on his hands. If he did not file suit and other states prevailed , he would have deprived Missouri of funds much needed in the state’s coffers.If he sued and lost,he would be embarrassed The Great Tobacco Case 233 politically and criticized for spending state funds and manpower chasing an uncatchable rabbit. Nixon needed a way to sue tobacco without spending state funds—and he found it. He would ask private lawyers to represent Missouri in the suit and be responsible for the expenses of prosecution. The question was, would anyone agree to such an outlandish request? In April 1997, Nixon sent out his“Request for Proposal,”seeking lawyers who would work for a contingent fee—if they lost, they would not be paid, and if they won, they would “theoretically ” be paid by the state. I say “theoretically” because, while Nixon could enter into the agreement, he could not force the state legislature to appropriate money to pay the attorneys’ fee. Anyone who had a finger on the political pulse knew that the legislature would rather do anything than pay“bottom-sucking” lawyers a penny. Any legislator voting for such a fee probably could look forward to being out of...