After All the Smoke Cleared

By LANCE MORROW

Old thinking: If you smoke cigarettes, what ever happens to your heart and lungs is your own damned fault. Cigarettes are a legal product, voluntarily purchased and consumed. Don't come whining to the courts when you see a shadow on the X ray. Caveat fumor.

New Thinking: Big Tobacco knowingly sells a defective product that, when used exactly as intended (i.e., you smoke the thing), addicts the consumer to nicotine and eventually sickens and kills him. Big Tobacco should pay billions in damages, not only to smokers and their families but also to state governments to cover the smokers' Medicaid expenses.

In Assuming the Risk: The Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco (Little, Brown; 384 pages; $24.95), Michael Orey, an editor at the Wall Street Journal, describes the American journey from a public attitude of "Tough luck, buddy" to the group-grievance activism of the '90s, brought to lucrative fruition in lawsuits--by Mississippi, Minnesota and 38 other states--that have extruded from the tobacco industry the promise of close to $250 billion, to be paid out over 25 years.

It's a long way from the old mentality to the new--the trip being, in part, a symptom of American cultural change. The transition, as of 1999, is incomplete. Old Thinking still has plenty of adherents. New Thinking may not prove to be entirely a story of virtue triumphant over death-peddling greed; it may instead merely introduce new forms of consumer taxation (higher cigarette prices) and lawyer enrichment, while people go on smoking and dying as before.

Orey dramatizes rather than sermonizes. Assuming the Risk, a first-rate exercise of narrative journalism, assembles an eccentric cast of characters. Don Barrett, for example, was a garden-variety white racist as a student at the University of Mississippi ("I do feel that the Negro is inherently unequal," he told a New York Times interviewer in 1963, around the time James Meredith was integrating Ole Miss). In the fullness of time, he became a born-again Christian and crusading lawyer who took up the cause of Nathan Horton, a black carpenter and contractor who smoked two packs of Pall Malls a day, developed emphysema and lung cancer and filed suit against the American Tobacco Co. for $1.5 million in damages in 1986. Horton died in early 1987, but Barrett and the Horton family kept up the fight.

The first court battle ended in a mistrial. On retrial, the jury embraced New Thinking by finding American Tobacco liable for Horton's death--a conceptual breakthrough. But Old Thinking lingered: the jury figured, at the same time, that Horton had obviously brought cancer on himself and awarded zero dollars in damages.

Next came industrial espionage. Orey introduces an engaging, skittish misfit named Merrell Williams, a Ph.D. in theater with an intermittent drinking problem and an inability to hold a job until he went to work as a paralegal doing closely held research for Brown & Williamson Tobacco. The object of Williams' work was to determine what B&W execs knew about the effects of tobacco and when they knew it, to help company lawyers fight future damage claims. Out of a sometimes fuddled sense of righteousness, Williams began smuggling documents from the B&W offices and copying them. The pilfered papers--which among other things documented the company's efforts to market to kids and its knowledge years ago of nicotine's addictive effects--eventually found their way into the national media. Williams' dossier, along with the whistle blowing of B&W's former chief of research, Jeffrey Wigand (whose story will be told in the upcoming movie The Insider), formed the core of the states' case against Big Tobacco.

Finally, Orey focuses on Mississippi attorney general Mike Moore's brainstorm: his novel lawsuit against the entire tobacco industry to recover the state's Medicaid costs. The idea worked with thermonuclear effectiveness, blowing tobacco's safe and unlocking the dirty billions.

It's a fascinating story, though somewhat disgusting, all around, from a moral point of view, being mostly about money and therefore--considering all the ambient death and suffering--weirdly beside the point. It is a little difficult, despite Orey's exertions on behalf of the antitobacco lawyers, to find heroes in the drama. Riches are redistributed from one class of the venal to another. Mississippi's Medicaid legal team is awarded fees of $1.43 billion. Dick Scruggs, a leader of the team, buys himself a bigger private plane and a $200,000 Bentley; he trades in his 61-ft. motor yacht for one 30 ft. longer. Justice triumphs.