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Ashes to Ashes

By Richard Kluger

Ashes to Ashes.gifAshes to Ashes, a history of the American tobacco industry, includes information about the current legal war.

811 pages
Vintage Books (1997)

Reviewed by: Eric Howard

For many attorneys Ashes to Ashes will offer a welcome return to their ideals as youthful law students, although it also shows with sharp clarity how the real world corrodes those ideals. The book is a comprehensive, 800-page history of the tobacco industry that includes the stories of two notable young lawyers who took on a powerful special interest and a few disillusioning tales of lawmaking.

In the area of lawmaking, for example, Ashes to Ashes author Richard Kluger chronicles how Philip Morris and other tobacco companies doled out largess to members of the Texas legislature as part of a massive campaign on behalf of tort reform. The money came in all the forms that highly skilled lobbyists could devise: direct contributions to the legal limits, honoraria for speaking engagements, and the like.

The tobacco industry "spent $441,000 in 1989 in Texas on lobbyists and consultants." The Texas Civil Justice League, an organization funded and controlled by Philip Morris, promoted tort reform, seeking and finding friends among those organizations that often get sued-including, ironically, managed healthcare organizations. One technique was to hire personal friends of politicians as consultants, many of whom received retainers of $20,000 or more. One group with considerable influence in the state legislature did, however, oppose tort reform-the Trial Lawyers Association. By the end of 1992, however, after spending an estimated $5 million to $10 million and after years of effort, the TCJL had largely succeeded in its tort reform goals.

This sad tale may be counterbalanced by that of John F. Banzhaf III, a patent lawyer who, as a college student in the early 1960s, wrote computer code for the purpose of testing whether it could be patented and successfully ushered the code through the patent office. Watching a football game on Thanksgiving day in 1966, Banzhaf was struck by the amount of advertising on behalf of cigarettes. By the end of December, after gathering information about the fairness doctrine, he began to seek free time to express his antismoking views on television. Although broadcasters and the cigarette industry struggled to get Banzhaf's equal-time request rejected, the FCC granted initial approval. Banzhaf's law firm, which did patent work for Philip Morris, told him to find a different cause to which he might devote his off hours, but he persevered.

Kluger dramatically captures what happened next:
Leaving his law office one late Friday evening in September, Banzhaf picked up an early edition of the next morning's Times and read that the FCC had upheld its preliminary ruling....Suspecting that broadcasting and tobacco companies would promptly appeal the FCC ruling, and in a Southern jurisdiction...Banzhaf returned at once to his office and spent the rest of the night...drawing up a notice of his own appeal...and then took the first available plane to Washington the next morning...and filed his motion in person....When the industry lawyers filed their own notice of appeal in Richmond on Monday morning, they learned they had lost the race.

Banzhaf knew, however, that he needed powerful friends to carry on the fight. He approached the American Cancer Society and pitched the idea that it launch a lobbying effort for airtime for antismoking commercials. He wanted $50,000 to carry on his legal fight. The society, then only a medical organization, turned down the abrasive stranger with his bold plan. Banzhaf won his case, however, and the American Cancer Society received free airtime without ever having agreed to help. Thanks largely to Banzhaf's efforts, antismoking advertisements began to appear on national television.

Another story, this one from the 1980s, almost imitates a Hollywood movie. Marc Z. Edell, a young lawyer from New Jersey, had an idea after studying the 1982 New Jersey Supreme Court ruling in Beshada v. Johns-Manville and the same court's 1983 decision in O'Brien v. Muskin. The cases broadened interpretation of New Jersey's liability law, and they provided Edell with an argument to overcome the ;Restatement of Torts, Comment i, which discusses how awards for damages should be denied in cases in which the danger of a product-such as whiskey or cigarettes-is common knowledge, contemplated by the ordinary consumer of the product. Looking for a client, he soon met Rose Cipollone, a working-class, Italian American grandmother from New York who was dying but willing to sue a corporate Goliath (actually, three of them: Liggett Group, Philip Morris, and Loews) for malfeasance.

Three days after Cipollone died, the attorney arrived at the Park Avenue offices of Philip Morris to depose its retired chairman. Kluger relates the perfectly cinematic moment:

Edell was ushered into a very large conference room and shown to a chair at one end of a very long table; the senior statesman of the tobacco business sat at the other. Deployed between them was a squadron of company lawyers....Edell, unaccompanied...decided that he had better let his massed adversaries know he was no pushover. He moved his chair the length of that immense table until he was sitting directly across [from the chairman].

Later, a disgruntled former Philip Morris employee turned up to help with the grueling discovery process, but no love interest appeared to help him through the boredom of 12-hour work days for three years in preparation for the trial.

The presiding judge in that trial, H. Lee Sarokin, could not fully conceal his lack of sympathy for the defense and gave Edell several promising rulings. But the tobacco companies, with a lack of regard for fair play worthy of a movie bad guy, did not limit their defense to the courtroom, pouring a total of $1 million into the New Jersey state legislature to ensure that Cipollone's case had the law rewritten against it.

In a movie, the young lawyer would hammer home his closing argument in a brilliant short summation. The reality was a five-hour recital that made no eyes sparkle. A movie jury, furthermore, would not have its collective mind clouded with four weeks of expert testimony about addiction from defense witnesses. And in a movie, the verdict would be a resounding victory for the plaintiff.

The real jury returned a mixed verdict, awarding $400,000 damages to Cipollone's widower out of sympathy. Still, Edell accomplished much: the introduction into evidence of many damaging, if not damning, tobacco company documents, thanks to the help of the disgruntled employee and Edell's own considerable prowess at discovery. Additionally, Cipollone v. Liggett Group, Philip Morris, and Loews established case law that could aid another shot at the Goliaths. The tobacco companies, however, accomplished more: in addition to their tort reform victory in the legislature, they succeeded in getting Judge Sarokin removed from another antitobacco trial and got reversals on appeal, maintaining their record of never having paid a dime in damage awards.

The U.S. Supreme Court eventually ruled in the Cipollone case that smokers had adequate warning. Edell's ball kept rolling, however, and big class-action suits in several states began to gather steam. Nearly half of the state attorneys general eventually sued tobacco companies for reimbursement of public funds spent on tobacco-caused health care costs. Private attorneys also sued. Jacksonville, Florida, attorney Norwood "Woody" Wilner, for example, well known for his victory in Carter v. American Tobacco, has filed more than 300 antitobacco suits. In the late 1990s, some idealists dared to ask: are the tobacco companies finally going to take a fatal blow from David's sling?

In April 1997, details of a massive settlement between state and federal governments and the tobacco industry were leaked. Ashes to Ashes, in its closing pages, describes this proposed deal: tobacco would promise to hand out roughly $350 billion, give up billboards, vending machines, and more alluring forms of advertising. In return, tobacco would get sweeping immunity. Additionally, the FDA would back off on classifying nicotine as a drug, and the U.S. government would keep its hands off the companies' lucrative foreign trade. In short, summarize the plan's critics, in return for 10 cents on the dollar for tobacco-related health care expenditures and an end to Joe Camel and the Marlboro Man, cigarette companies could carry on business as usual.

Whether Congress will accept such a deal remains to be seen, but one story is indicative of the hurdles that antitobacco forces face. Speaker of the House Newt Gingrich, recently fined $300,000 for ethics violations, received a $300,000 loan from former Senator Robert Dole, who, in turn, is reported to have received a $300,000 bonus from his employer, Verner Liipfert Bernhard and Hand, a law firm and lobbying group representing tobacco interests. Ethics rules permit Gingrich to accept such a loan only from a friend who seeks no political influence; the two men were well known for not getting along when both were in Congress but made a point of citing friendship when discussing the loan.

As well as being a fascinating social and political history, Ashes to Ashes is a book that can turn any starry-eyed idealist into a hard-headed realist. Ashes to Ashes traces the history of how governments have either attempted to ban tobacco as a menace, only to have it become a lucrative black market item, or allow it to be sold legally, accepting tax income and industry influence in return. In 1604, King James I of England published A Counter-Blaste to Tobacco, a moral attack on smoking long before its health risks were known. The weed nevertheless remained popular among his subjects. In the late twentieth century, people continue to smoke, and governments continue to accept taxes and largess from the tobacco industry. A few Davids have won some impressive battles, but the war continues to rage, and more than a few attorneys have seen the tobacco giant get up again after taking their best shots.

Eric Howard is associate editor of Los Angeles Lawyer.