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Butt out: finally, a way to beat the cigarette companies in court.

Take two packs and call me in the morning: When these ads ran, the tobacco industry knew better.

Reynolds executives were not thrilled with their scientists' findings. The

company summarily closed down the Mouse House, fired all the scientists, and confiscated--and never returned--dozens of the biochemists' research notebooks.

For nearly four decades, law suits against tobacco companies have followed an unnervingly familiar pattern: 1) litigant (or family of litigant) brings claim, 2) company hires battery of lawyers, 3) expensive trial ensues, 4) litigant loses. Plaintiffs either fail to convince a jury to award them damages, or the tobacco companies, for whom shelling out huge legal fees is a price of doing business, drag out proceedings long enough to break the will of their antagonists. The results have been a tally of lopsided victories that you might expect from constantly pitting the San Francisco 49ers against a Pop Warner team: After 40 years and 320 different lawsuits, no tobacco company has paid anyone a single dime.

The landmark Supreme Court decision handed down last June could end this streak. Ruling in Rose Cipollone's case against three tobacco companies, the court handed the industry some fairly good news and some very bad news. Lawsuits alleging that cigarette makers failed to warn plaintiffs that smoking is dangerous, the foundation of virtually every lawsuit against the industry thus far, would no longer be allowed; the Supremes held that warning labels shield the industry from such suits, at least on claims after 1969. But the court also ruled that plaintiffs can sue cigarette makers for fraud, based on a theory that by concealing facts about smoking and health, or by actually lying about damaging information in their possession, the manufacturers breached a legal duty not to deceive. There may still be some new angles to try in the I-couldn't-quit approach to tobacco litigation (see sidebar). But juries in future trials are likely to be considering new questions: What did the cigarette makers know about the dangers of smoking, when did they know it, and what did they do with the information?

The short answers: The industry had reams of scientific data confirming everyone's worst fears about smoking, they had it early on, and they made an organized effort to keep the truth about their product from the public. Longer answers are contained in the 100,000 pages of once-privileged documents that Cipollone attorney Marc Edell subpoenaed from the tobacco industry. documents showing that the industry has suppressed, ignored and even lied about what vince dispassionate observers--fair-minded jurors, for instance--that over the course of the past four decades, the tobacco industry engaged in massive fraud.

Smoke and mirrors

Much of the new and most damaging information pertains, ironically, to efforts by tobacco companies in the fiFties and sixties to understand and even mitigate the health problems already being associated with smoking. Scientific studies by independent researchers began linking cigarettes to lung cancer in 1950. Around that time, Reynolds, for example, became interested in developing its own research lab. The company's goal was to identify the many compounds in cigarette smoke, figure out which might be toxic, and develop filters to make a "milder, less irritating" smoke. As a result of this first wave of research, filter-tipped Winstons were introduced in 1954.

The controversy about cigarette smoking continued to escalate. In January of 1964, the surgeon general decried smoking as a major health hazard for the first time. Fear spread within the industry that the government soon would begin regulating cigarette manufacturing. Publicly, cigarette makers continued to ridicule smoking research as flawed and inconclusive, mainly because it relied on animal testing that might not be applicable to humans. But in 1964, Reynolds chairman Bowman Gray told Congress that the industry was prepared to do whatever it takes to make smoking safe: "If it is proven that cigarettes are harmful, we want to do something about it regardless of what somebody else tells us to do. And we would do our level best. It's only human."

That commitment boded well for Eldon Nielson, a bio-ehemist who joined Reynolds in 1962 and soon began lobbying for an animal research laboratory. He got his way over the it knew about the hazards of smoking at least since 1946. And more information has come to light since Cipollone's attorneys dropped their case in November, some of it uncovered by me and my partner, Taft Wireback, during an investigative series for the News & Record of Greensboro, North Carolina. There is now a compelling body of evidence that would con-protests of in-house lawyers and top executives.

"Some of the attorneys didn't like the idea at all; some of the managers didn't like the idea at all," Nielson said from his home outside of Salt Lake City, where he is retired. "Some said, 'I wouldn't do animal studies for anything.' It was a controversial issue within the upper reaches of management."

Nevertheless, walls soon were knocked out within Reynolds' sprawling yellow-brick research building in downtown Winston-Salem. Special rooms were built to hold animals and drainage and ventilation systems were installed. Scientists dubbed their new animal research laboratory the "Mouse House." The lab wasn't advanced enough to do cancer research involving long-term animal studies but it could focus on the links between smoke and lung disease.

"We were young, idealistic and we were going to change the world," said Joe Bumgarner, a former Mouse House biochemist who now works for the EPA in Research Triangle Park, North Carolina. "I never remember thinking we were going to hurt the company. That was not our consideration. our goal was: If there is a problem, let's fix it, if there is a fix."

Anthony Colucci, only the second tobacco scientist ever to speak out publicly against the industry, was a doctoral graduate from Johns Hopkins University when he was hired by Nielson in 1967. He was made a project group leader and studied rabbits that had been exposed to cigarette smoke to gauge the impact of smoke on animal lungs. Other research sought to isolate toxic compounds in cigarette smoke such as phenol, naphthalene, and nicotinic acid to see how the substances were absorbed by the cells in rats and rabbits.

"Back in the sixties, we were incredulous that Reynolds took this position" that the links between smoking and disease were unproven, said Colucci.

"We thought it was a joke." The compounds studied, after all, were not picked at random; they were selected based on outside research that deemed those compounds harmful--an admission, Colucci believes, that Reynolds scientists also believed them to be harmful.

Meanwhile, Reynolds engineers developed a state-of-the-art smoking machine to help with the animal exposure studies. The chest-high, rectangular device mimicked how a person smokes a cigarette.

Animals were yoked so that all but their heads were shielded from the smoke, thus ensuring that they took in all tobacco residue by breathing. Rabbits were exposed to smoke for months at a time.

The biochemists used the machine in order to analyze the effect of cigarette smoke on pulmonary surfactant the chemical compound that keeps air sacs in the lungs from sticking together each time air is exhaled--which the medical community in the late sixties considered a key to understanding a possible cause of emphysema.

Smoke screen

Colucci said the lungs of his "smoking bunnies" suggested several things, all of which were largely in concurrence with outside academic research and none of which Reynolds ever made public. First, smoke was damaging the rabbit's lungs at the cellular level, thus shedding light on how this damage was caused. Pulmonary surfactant was being damaged by smoke and was thus damaging air sacs deep in the lung. And the smoke appeared to trigger an increase in lysolecithin in the lung (a toxic compound also found in snake venom) which shot holes in lung membranes.

With the exception of the lysolecithin finding, which Colucci said was preliminary and required more study, several academic labs around the country had produced similar results. Indeed, in 1967, Samuel Giammona at the University of Miami concluded in a published study: "Tobacco smoke exposure would initiate changes in the surfactant favoring the developing of emphysema."

Reynolds executives, of course, were not thrilled with their in-house scientists' findings. In March 1970, the company summarily closed down the Mouse House, fired all the scientists, and confiscated--and never returned--dozens of the biochemists' research notebooks. "We waited about a week, then word came back that they were accidentally destroyed; that was the first indication we had that something was amiss," recalls Bumgarner. "I strongly suspect we were fired because anything we were doing was subject to subpoena."

Colucci says the company would not allow his surfactant studies to be published and he recalls being told by supervisors never to discuss any conclusions from his biological research with company executives. The execs, he was told, needed to be able to testify in court that they knew nothing.

What is Reynolds's version of these events? Sam Simmons, one of the original Mouse House scientists and now director of smoking and health at Reynolds, insists Colucci has memory difficulties complicated by hubris. Simmons says that neither he nor Colucci was ever close to connecting smoking and lung disease. He insists that the animal exposures were badly flawed. He claims the same changes observed in the lungs of rabbits exposed to smoke were observed in rabbits not exposed. And he said Reynolds closed the lab and fired the biochemists purely for business reasons: It was cheaper to fund the research at better-equipped academic labs. Simmons denies that the Mouse House notebooks were ever destroyed. And, of course, he stressed that cigarette smoke has never been proven as a cause of any human disease.

The credibility of Simmons' explanations is undermined by a confidential Reynolds research report, which the company threatened to sue me and my newspaper for having obtained. In 1985, attorneys for Reynolds, in preparation for a lawsuit, hired New York toxicologist Paul Brubaker to render an independent assessment of the company's biological research programs in the sixties. Brubaker was impressed with the work. "It is a story of pioneering research that led to development of technology and tools eventually used by others to explore the effects of direct smoking on the target organs: the lungs," Brubaker wrote.

The ultimate goal of the research was to understand the very thing that Reynolds and other tobacco companies still say is unproven--how smoking causes lung disease. On that point Brubaker was most impressed with Anthony Colucci's pulmonary surfactant studies, which, he wrote, came close to understanding the cause, or mechanism, of how smoking triggers emphysema.

Brubaker couldn't explain why the Mouse House was shut down. But Colucci says he can:

"We were making progress, learning things. Yet they don't want us to know that the lipids in the lungs that maintain the functional integrity of the lung tissue are being destroyed by cigarette smoke. Why? Because this is mechanism. They always say 'You can't prove smoking causes disease because you can't prove mechanism.' Do you think Reynolds wanted to generate this information? No way."

Pack rats

One rich vein of fraud that emerged from the documents obtained in the Cipollone case was the work of chemist James Mold, the former assistant director of research at Liggett, maker of Chesterfield and L&Ms. Mold testified in Cipollone that beginning in 1955, he and a team of researchers began the hunt for the "safer" cigarette. The team spent 10 years testing a variety of additives that might neutralize deadly cigarette carcinogens and ultimately found that mice subjected to tobacco mixed with palladium and magnesium nitrate developed fewer malignant tumors.

In the seventies, momentum built for the project Liggett identified in its files as XA-5001, or XA for short. Liggett got patents on the palladium and nitrate additive, and the company bought large amounts of palladium to ensure a steady supply. The new product would be named "Tame," implying ever so gently its health benefits over untreated cigarettes. But as so often happens in the tobacco industry, the company lawyers got involved. After 1975, lawyers began attending all meetings concerning XA, and memos and letters about the new cigarette were stamped "lawyer-client privilege" in an effort to protect them from a possible court subpoena. Before long, the project was scuttled.

Lawyers for Rose Cipollone argued during the trial that her death in 1984 from lung cancer was partly caused by Liggett's refusal to market XA. A judge dismissed the charge, mainly because no proof was presented that Cipollone would have switched from Chesterfields to the new brand. But Cipollone's lawyers missed the point; whether a marketed XA cigarette would have provided smokers with a safer alternative scarcely matters. Mold's research prior to and throughout the XA project points unerringly to a simple conclusion: Liggett knew for itself, and in great detail, the health hazards brought on by smoking. The company not only failed to disclose that information, it misrepresented that information to the public.

How this growing body of evidence of tobacco industry fraud will be used and how effective it could be remains to be seen. The Cipollone jurors heard much of it--though nothing about the Mouse House --and told interviewers after the trial that they were confused by the welter of information presented to them. Like the lawsuits against the asbestos industry, the fraud angle of attack in tobacco litigation may take some trial and error fine-tuning before being packaged in its most compelling and effective light. The meddling of tobacco company lawyers in research will certainly figure prominently, as will any new information about the tobacco industry's own scientific research. Already, 60 cases are prepared and waiting to go to trial.

Moreoever, the U.S. attorney's office for the eastern district, having pored over the Cipollone documents and the Mouse House reports. is looking into possible criminal fraud charges against all of America's cigarette manufacturers based on allegations that they purposely deceived the public about the hazards of smoking.

It is a unique product that eventually injures or kills the consumer when used exactly as intended. At some point, most major American corporations---car makers, chemical companies, pharmaceutical manufacturers, even the makers of children's toys---have had to pay damages for the harm their products have brought to consumers. Yet the damage those industries do is negligible compared to the devastation that is wrought by the tobacco industry each year: 434,000 deaths--more than alcohol, drunk driving, car accidents, cocaine, crack, heroin, homicide, suicide, fires, and AIDS combined. And according to the U.S. Department of Health and Human Services, smoking contributes to more than $52 billion annually in health care expenses and lost work time. So far, cigarette makers have not in any way been held responsible for those deaths and have never had to foot any of that bill. But the advent of fraud litigation and new evidence that the tobacco industry lied about its products may change all that.

Justin Catanoso is a reporter with the News & Record of Greensboro, North Carolina.
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Author:Catanoso, Justin
Publication:Washington Monthly
Date:Jan 1, 1993
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