ASSUMING THE RISK: The Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco. - Review - book reviews

Washington Monthly, Oct, 1999 by Michael Massing

ASSUMING THE RISK: The Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco By Michael Orey Little, Brown $24.95

The struggle against tobacco companies is far from over

THE FIGHT AGAINST BIG TABACCO HAS given rise to a burgeoning literature. In 1996, Richard Kluger published Ashes to Ashes, his impressive history of the rise of Philip Morris and the efforts to contain it. Soon after came Stanton Glantz's The Cigarette Papers, a collection of internal documents from Brown & Williamson, and Philip J. Hilts's Smokescreen, an examination of the industry's marketing practices. Last year appeared Peter Pringle's Cornered: Big Tobacco at the Bar of Justice, a look at the lawyers involved in suing the industry. Now comes Assuming the Risk, by Michael Orey, an editor at The Wall Street Journal and a former writer and editor at The American Lawyer, describing "the Mavericks, the Lawyers, and the Whistle-Blowers Who Beat Big Tobacco" as his subtitle puts it.

Enough already, you might say. But the effort to rein in the nation's tobacco companies has been one of the most significant and fascinating political developments of the decade. Certainly the swiftness with which this once-impregnable industry was brought low has been breathtaking. The subtitle to Richard Kluger's book--"America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris"--was obsolete almost as soon as it appeared, with Philip Morris suddenly subject to once-unimaginable controls. The campaign against tobacco is now being emulated in many other fields. In several cities, for instance, supporters of gun control are seeking to hold gun manufacturers responsible for deaths and injuries their products have caused. The families of the three victims in the 1997 school shooting in West Paducah, Ky., have filed suit against the makers and distributors of violent movies and video games alleged to have been watched by the gunman. And grassroots organizations like Mothers Against Drunk Driving are exploring new ways to rein in the nation's alcohol companies, whose products take the lives of an estimated 100,000 Americans a year.

So, from a public-health standpoint, any new insights that can be gleaned from the great offensive against tobacco are to be welcomed. In Assuming the Risk, Michael Orey focuses on events in Mississippi--the first of the more than 40 states to sue the tobacco companies for the recovery of public funds spent treating the victims of smoking-induced diseases. Divided into three parts, the book relies heavily on personalities. The first part tells the story of Don Barrett, an attorney in a poverty-stricken county who brings suit against the American Tobacco Company on behalf of Nathan Henry Horton, a local black man who died of lung cancer at the age of 50. A one-time good-ol'-boy who as a youth participated in a cross-burning, Barrett had a religious awakening, and he emerged as a crusader against the evil of Big Tobacco. With scant resources, Barrett mounts a spirited case, and of the 114 individual suits brought against the industry nationwide, his is among the few actually to go to trial.

But American Tobacco, deploying a team of investigators, digs up a truckload of dirt on Horton, showing him to be a relentless womanizer who fathered numerous children out of wedlock. The company also found evidence that he had been exposed to other toxic substances, raising doubts about whether smoking had caused his illness. The jury ended up deadlocked, and a mistrial was declared. From it all, Barrett concludes that pursuing lawsuits on behalf of individual smokers is futile. "Cigarette companies were too strong to be taken on one case at a time," Orey writes. "They had too many ways of casting doubt on the cause of illness in a particular person." In addition, juries often bought the industry's defense that individuals smoked out of choice.

Enter Merrell Williams, the subject of the book's middle third. Charming but cantankerous, Williams, a Mississippi native, has a Ph.D. in theater, but the academic life bores him, and he tries his hand at a series of other jobs, including selling cars, running a pub, and operating a shrimp boat. None pans out, however, and he eventually moves to Louisville, Ky., so that his wife can be near her family. His fecklessness continues, however, and when he begins to drink heavily, she and the kids move out. Evicted from his house and pursued by creditors, Williams in 1987 receives a call from the Louisville Bar Association asking if he would like to earn nine dollars an hour working as a paralegal for one of Kentucky's top law firms. Jumping at the opportunity, Williams finds himself photocopying and coding internal company documents for Brown & Williamson, the manufacturers of such cigarette brands as Raleigh and Kool. The project is intended to help B&W defend itself against product-liability suits similar to the one Nathan Horton had filed in Mississippi.

As he plows through the documents, however, Williams becomes appalled at what he learns about the company's efforts to market its products to kids, to place product promotions in movies, and to stymie research into the health perils of smoking. Becoming a mole, he begins sneaking documents out of his office and copying them. Eventually, he sends a batch to Morton Mintz, a reporter at The Washington Post, but when B&W discovers what is happening, it obtains an injunction to prevent Williams from disseminating or even discussing the documents. Increasingly paranoid, Williams imagines killers lurking in every shadow, and he goes on antidepressants to help him deal with his frustration over his inability to get out the word about B&W's perfidy.